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Friday, August 23, 2013

Low Morale at the ICTY

I just came across this article on the sense website about the morale of the staff at the ICTY, based on a survey taken among the Associate Legal Officers (ALOs) in June.

This is how the results are summarized :
“The morale of the staff in the Tribunal’s Chambers is at an all-time low. Many of the lawyers feel angry, sad, demoralized, betrayed, frustrated, powerless, undervalued and unappreciated, and also very distrustful of decisions coming from the President's office. The general feeling seems to be that President and his Office do not care about the Chamber's staff or the legacy of this institution but only about the completion strategy, the MICT (Mechanism for International Criminal Tribunals, which will carry out the residual tasks of the tribunals for the former Yugoslavia and Rwanda), and their own personal interests.”

This certainly does not draw a happy picture of the atmosphere at the ICTY right now. If true, this is certainly interesting, but ultimately, highlights a number of features of the internal dynamics of the ICTY, and probably other international tribunals, which are not that surprising.

The charges levelled at the Presidency are particularly disturbing and if true, would warrant action far more than the unsubstantiated allegations put forward by Judge Harhoff some months ago, on which I commented on at the time (here and here).

Of course, one could adopt a demagogic position and minimize the results of this survey. Who cares about well-paid UN staffers in The Hague complaining about their work conditions, when thousands of victims in Yugoslavia are waiting for justice for the uncountable list of crimes committed against them? This would not be an entirely unfair statement to make but would ultimately be missing the point. Indeed, if one is attached to the process of international justice and efficient prosecutions for international crimes, then the institutions set up to meet that goal need to abide by certain minimum standards.

First of all, in this case the first rule of management seems to be ignored by the people at the top: keep your staff happy. There is no way that performance is not affected if the morale is so low. To put it bluntly, why would you bust your ass for an institution that shows so little disregard for you?

More importantly, the survey, beyond illustrating the personal difficulties of the staff, highlights some broader systemic difficulties at the ICTY, which ultimately also affects its performance and output.

For example, it illustrates the difficulties with the fact that there is no formal institutional link between the MICT and the ICTY. Indeed, beyond the fact that this is unfair to the current ICTY staff, I don’t see how hiring totally new people from the outside is a good idea, because this is the best way of losing the institutional memory that would lead to improved practices over the years.

In fact, this question goes well beyond the MICT. As anybody working in this field or The Hague for long enough can see, the turnover at the ICTY is incredibly high, with the result that it is likely that a number of people involved in the drafting of judgments probably never attended a single trial session. How course, one could tell me that as long as the Judges attended, then it is fine, because they are ultimately the ones deciding on the facts and the law. That is theoretically true, but so far removed from the reality of judgment drafting that it makes hardly any sense to approach things in this way. Indeed, there is no way that thousands of pages of judgments are prepared without the staff having some input in the way the evidence is understood and presented. As a result, this turnover means that there is no “case memory”, let alone institutional memory.

Finally, these allegations, beyond affecting the well-being of the ALOs, can, if true, only affect the legitimacy and credibility of the institution. Why, when all institutions in the world are increasingly being made accountable for practices of corruption, nepotism and lack of transparency as conditions for the legitimate exercise of authority, should the UN, and the ICTY in particular be exempt from these minimum principles?

On a final note, one issue raised in the article caught my attention:
Finally, as one of the respondents said, the ‘low morale is not helped by the recent appeal judgments, which are sending the message that no matter how voluminous, detailed or reasoned trial judgments are, they can be overturned in their entirety in a matter of few months, without much regard for the standard of review and in a 50 or so pages which contain very sparse reasoning’.

This is obviously a reference to the Gotovina Appeals Judgment and more generally to the recent acquittals, notably in the Perisic case. I will not restart the debate on the substance or merits of these acquitals, but I find it somewhat disconcerting that standards have been so warped at the ICTY, and in international justice generally, that a short judgment issued in a few months be considered as promoting « low morale ». For me, it is the thousand page judgment which it took years to draft that affect my morale…

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