I remember when Michelle (name changed to protect identity) got the email. She yelled out, “What?! This is so unfair!  I’m writing to CSS right now!” CSS is the Counsel Support Section of the Registry at the International Criminal Court (ICC). One of CSS’s responsibilities is approving the budget and appointments of defense teams who are subject to the Legal Aid Policy. I looked up from one of the umpteenth responses to a prosecution request that I was drafting that month and saw that Michelle was clearly flustered. She asked how it could be that defense support staff have been gridlocked on obtaining any changes to our working conditions for several years, whereas all the staff of the ICC had just received a raise to their salary that applied automatically because of rising inflation in the Netherlands. I stared. Of course, she was right, but the ICC had always showed me that defense and victim support staff, though paid by the same coffers as individuals classified as ICC staff, were not entitled to any of their rights.

When we received this email about ICC staff salary increases, I had been working for seven years as support staff on defense teams receiving legal aid. I had participated in endless talks with various members of the Registry. They spoke of raising salaries given the Dutch government’s stance in 2015 to impose taxes on defense and victim support staff and of giving them contracts, which would specify certain basic labor rights. Nothing changed. The same Legal Aid Policy which was adopted in 2013 still applies in 2022. According to the Registry’s interpretation, that document does not provide any basic labor rights such as maternity leave, sick leave, health insurance, and annual leave. It also doesn’t allow for salary increases above the specified ceiling amount, which was adopted over 9 years ago. While taxes could potentially be reimbursed, it could only be at a rate of 15% of the support staff’s income whereas the tax bracket in the Netherlands is significantly higher. While I completely supported Michelle’s indignation, I was not about to embark on another crusade to nowhere. I sighed, sincerely said that it was unfair, and continued drafting my response.

Defense and prosecution are supposed to be two sides of the same coin. But under the current Legal Aid Policy one side of the coin is eroding with every passing year that the defense support staff conditions remain unchanged. As the defense, we perform exactly the same tasks as the prosecution both in the courtroom and outside it. We are both parties to the proceedings. Everyone knows this, but as defense support staff we feel we always must remind the ICC that the right to an adequate defense is enshrined by Article 67 of the Rome Statute and the very Legal Aid Policy that the Registry so often cites to indicate that we are not staff of the Court and therefore can expect no benefits. Our working conditions have taken a toll both on our well-being, but also on the ability to retain quality representation of individuals accused of the most heinous crimes, who are most in need of zealous advocacy.

I am one of a very small handful of support staff that has been working on defense teams before the ICC for several years. So, why did I stay? The answer is not that I am more passionate about the work or that I care more deeply about the clients. I have seen too many friends leave their positions on defense teams in tears because despite loving the work, they could not afford living in The Hague on their salary, they could not afford the flight to their home countries to visit, or they could not stomach being harassed by their counsel. This has a direct impact on fair trial rights because those support staff that leave take the institutional knowledge of the case with them. As a result, the Office of the Prosecutor has an unfair advantage of working with a team of individuals most of which are on the case from the confirmation of charges stage all the way to the closing statement of the trial.

The only reason that I have continued working in defense for so long is because my counsel gives us labor rights to the extent that is possible within the Legal Aid Policy and my co-workers have made this a priority. This is pure luck. Where one colleague was told by their counsel and team that the team was so deeply sorry about the colleague’s cancer diagnosis, but they couldn’t continue with their appointment because they were not available full-time, I was told by my counsel and all my team members not to worry about my position when my daughter died last year after one week of life from an ultra-rare form of epilepsy. I was able to work some minimal hours each month and the team and counsel made arrangements to keep the case going. It was not without a cost. Team members were stretched too thin and worked significantly more than 45 hours a week and took very little time off. The moral of the story is not that one counsel is evil while the other is good. There are no right choices by counsel to be made here. Counsels before the ICC are responsible for representing clients that often face life in prison as a possible sentence. Depending on their trial chamber, the nature of the case against their client, and the stage of the trial, it may not be possible for a counsel and their team to make arrangements to keep a case going while one member is not fully able to work. The blame lies with the Legal Aid Policy that treats us like contractors even though we are not. We work on the same case for several years under the oversight of our Counsel and the ICC.

While counsel is undoubtedly independent and self-employed, support staff is not. A colleague even sought a legal opinion from a Dutch law firm when we were all informed that the Netherlands had determined we were subject to tax as self-employed workers. The legal opinion stated that we are not self-employed because of the following three reasons: (1) we have a personal obligation to perform work, (2) we are paid wages by the ICC, and (3) we are in a relationship of authority with our counsel, and supervised by the Registry.

After all these years of bearing witnesses to such blatant unfairness, I decided that I would support my colleague Michelle and others when they said they wanted to strike during the ASP. After several years at the ICC, I have yet to see a new Legal Aid Policy, which remedies the current one’s significant shortcomings.

We cannot keep putting our nose to the grindstone when the grindstone is grinding us to a pulp while on the other side of the courtroom our friends and colleagues of the prosecution enjoy a full panoply of rights and are able to thrive in their workplace.  We hope that through this strike our invisible plight will finally be seen. We hope that through the adoption of interim measures and the adoption of a new Legal Aid Policy next year, the ASP can begin restoring the equality of arms between defense and prosecution. It is long overdue.

Suggested citation: Anonymous, ICC Defense Staff Deserve Better, JURIST – Professional Commentary, December 12, 2022, https://www.jurist.org/commentary/2022/12/anonymous-ICC-walkout-labor-rights/.

This article was prepared for publication by Rebekah Yeager-Malkin, Co-Managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org