Discretionary Habits and Institutional Guidance:
Understanding Trauma’s Role in Staff Welfare
at the International Criminal Court
Tania Rabia Shaik SID: 11128313 Universiteit van Amsterdam Master Thesis Conflict Resolution and Governance Word Count: 13,086 Supervisor: Anja van Heelsum Second Reader: Anne De Jong 24 June 2016
Table of Contents 1. Introduction ……….2 2. Psychological Issues of Trauma within the Staff Victim Relation ………...5 3. Theoretical Framework ………...8 4. Methodology ……….12 4.1 Research Design ………..12 4.2 Respondents ………....14 4.3 Operationalization ………...14 5. Data: The Institutionalized Line Between Advocacy and Long Term Control ………...17 5.1 Imposed Guidelines and Regulations ……….17 5.1.1. Confidentiality and Alienation ………....18 5.1.2. Gifts and Relations ……….21 5.1.3. SelfRegulation………...23 5.2 Staff View of Instructions ………..24 5.2.1 Personal Account ………....25 5.2.2 Function of Reports and Policy Papers ………...25 6. Data: Institutional Regard for Moral Dilemmas ………..27 6.1 The Necessity of Training ………..28 6.1.1 Use of Experts ……….29 6.1.2 Expert and Personal Accounts ……….30 6.2 Manifestation of Recommendations ………...31 6.2.1 Staff Welfare Mechanisms ………...32 6.2.2 Alternatives ………..35 6.2.3 Personal Account ……….36 6.3. Hindrances to Institutional Improvements ……….37 6.3.1. Expert Account ………...38 7. Conclusion ………...40 8. Bibliography………..44 8.1 Consulted Literature ………...47
1. Introduction
The International Criminal Court (ICC) is an institution tasked with upholding international norms of justice, but such a task has presented an inherent dilemma amongst practitioners working directly with those affected by genocidal acts, war crimes, and crimes against humanity. To interact with those who have experienced traumatic events and to try and piece these stories together in a coherent manner for legal use has been a concern for the court since its’ establishment. The ICC is an institution composed of several organs, most notably the Office of the Prosecutor, who manages the selection of cases, and the Judicial Divisions, who conduct the trial proceedings (International Criminal Court 2012). Initially, the focus on trying perpetrators meant a lack of rights to victims who wished to participate but found themselves caught in the middle of an international criminal bureaucracy that promises a swift trial and judgement. The dilemma of including all victims or simply a few discouraged meaningful victim participation, but as the court began to accept more cases regarding sexual violence, the role of victim witnesses became further pronounced as their testimonies were needed to try perpetrators (Koomen 2013). Not only does the court have to contend with accumulating evidence in a timely manner, but they must also properly train investigators and other staff interacting with victims in cultural awareness and secondary trauma workshops to negotiate stories in a manner that will minimize moral dilemmas that these practitioners could potentially face in the field. For instance, to assure the needs of the victim are met, intermediaries who share the same cultural background or language are hired to ease the process (Interview with VM 2016). Intermediaries are individuals who work on a case by case basis, and are defined as, “an individual or organisation who, upon request of an organ or unit of the Court or Counsel, conducts one or more of the activities mentioned in Section 1 of the Guidelines Governing the Relations between the Court and Intermediaries” (ICC 2014: 2). Many intermediaries have voiced that they do not feel properly prepared for interaction with individuals who have faced traumatic events. Intermediaries must coax stories out of victims, and investigators themselves also become entangled in creating a more conducive environment for sharing stories. These stories are essential to establishing a timeand place based around an event shared within these interviews (Koomen 2013). In order to correct these issues the ICC has issued new guidelines and offered workshops through the Staff Welfare Office. The International Criminal Court provides guidelines and trainings to investigators and intermediaries in order to reduce the moral dilemmas that occur in practice. The ICC’s position on justice has been debated by scholars, with some recognizing it as a primarily retributive institution, simply seeking to try perpetrators and send them to jail. Yet, other scholars see a progression towards more restorative norms of justice, where victims can play a larger role in justice processes, such as providing evidence through interviews and testimonies (Leyh 2012: 37980). The restorative aspect becomes apparent in the manner the ICC instructs staff and the rise of the staffvictim relationship. Those having contact with these traumatized victims find themselves in a precarious situation: how do they accommodate each individual and provide them with a harmless experience? Interacting with individuals who have faced trauma always presents a level of uncertainty on how they will react to the questions and gestures of the interviewers. Each victim carries his/her own individual pain that may entail triggers that the interviewers cannot foresee. There is a need felt by staff to continue educating themselves about this sensitive process. The Institute for International Criminal Investigations (IICI) is one such resource for investigators to engage in provided training sessions that incorporate real life examples (Interview with VM 2016). This organization is independent from the ICC, but has risen to fill in a gap felt by investigators who seek to refine their own understanding of their role in their interactions with victims. Through my research I explore the role institutional guidance plays in ensuring the welfare of staff. Those who mediate between large organizations and everyday life hold a key role in giving and taking information, and in this instance it is the institutional actors interviewing victim witnesses to extract information needed as evidence in international criminal cases. For intermediaries and investigators this may mean empathizing and showing concern for the victim witness, as well as insuring the interviewing space is comfortable and private, but this is not done at the expense of the institution, in fact this is what the ICC requires staff to do.
The ICC has taken strides to hire clinical psychologists and external experts within the field to train and educate staff in interviewing methods more suitable for interviewees who have experienced traumatic events (Sandick 2012: 112). Past literature has acknowledged these sentiments but I expand upon this process by implementing theories associated with institutional efforts to minimize this internal moral conflict. This frame will focus on how the ICC provides a means for influenced improvisation in practice and cope with the emotions inherent in the process. Influenced improvisation refers to how the ICC provides tools and instructions to form the discretionary habits of staff. For instance if scenario A occurs, then the staff member will implement B. Interviews and testimonies are a necessity to the international criminal justice process but it is a precarious process that requires diligence and competence by the staff. Central Question: How does the International Criminal Court minimize the moral dilemmas inherent in the duty of staff who interact with traumatized victim witness?
2. Psychological Issues of Trauma within the Staff Victim Relation
This section serves to illustrate the psychological background of moral dilemmas and their effect on the psyche of staff. The topic of trauma is an unavoidable for the International Criminal Court and rose to importance with the acceptance of cases that relied upon testimony from victim witnesses. Cases like the Lubunga trial, centered on victim participation and included 129 persons giving testimony, as well as being examined by legal teams (ICC 2015). This large amount of witnesses presented a burden to staff directly engaging with victimwitnesses who have faced traumatic events and has led to an incorporation of such regards into guidelines, as well as the creation of workshops specializing in minimizing the potential of harmful effects in such interactions. Trauma, as defined in a Western psychological context is, “selfrevolved and regards the individual human being as the basic unit of study and to prescribe technical solutions” (Summerfield 2000: 233). This entails an individualistic approach that contradicts reasoning processes held by cultures beyond the western framework the ICC imposes. Instead Psychologist Bracken suggests a more nuanced and socially, politically and culturally infused model of trauma interpretation stating, “trauma and its impact cannot be accounted for without reference to the subjective meaning of the events. Furthermore it cannot be understood without reference to the cultural context in which the individuals lived and in which the events occurred” (Bracken et al 1995: 1078). For instance, some cultures have a more circular reasoning habit, as well as evoke memory predominantly through collective accounting (Sluzki 2003). There is also the issue of trauma hindering memory recollection, which psychologists have described as a symptom of posttraumatic stress syndrome(PTSD). After experiencing acts of violence, witnesses tend to be in states of confusion and disorganization or in the process of consolidating a story in which they themselves are perpetrators of their own pain (Sluzki 2010: 2). It is often left to the intermediary, an interpreter, to make sense of these sometimes confusing stories. A notable scholarly article, “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal, written by Jonneke Koomen (2013), includes interviews by intermediaries in Rwanda whoexpressed the need to bridge boundaries and compromise their legal obligations in order to comfort women who experienced sexual violence. Here intermediaries are shown to include the sentiments expressed by victims and allowed it to affect the interviewing process, which can be both beneficial but also harmful as these sentiments can linger and manifest as secondary traumatization. Incorporating these reactions practitioners shared in past studies, towards the dilemmas they face in practice in my research assists in analyzing how the institution of the ICC seeks to cater to the staff’s needs in the interview process. In regards to staff welfare, the ICC has implemented secondary trauma workshops in order to circumvent the transfer of trauma from victim to staff. Secondary trauma can be characterized as, “secondary victimization through our exposure to evidences, testimonies of witnesses, of egregious acts, [and] takes place when our empathy is high” (Sluzki 2010: 2). It is a priority for the court to ensure the psychological wellbeing of staff or risk burnout and high turnover of staff. To combat such feelings of stress and over empathizing, the ICC has hired external experts periodically to review procedures and incorporate problems faced in practice to new guidelines and restrictions. One such expert, Carlos Sluzki M.D., has written many recommendations for the court as well as deconstructs the process of secondary trauma. Staff may feel more susceptible to such a condition when they feel unable to assist victim witnesses. He lists such effects as, “1. Confusion and the inability to think clearly. 2. Somatization (pains, aches, malaise). 3. Vocational crisis (questioning fit with the job). 4. Anger irritability against those around. 5. Enactments of resentment and/ or rage against whoever is near: family, coworkers, the institution, the world. 6. Enactments along the line of ‘killing the messenger” (Anger against those who bring the news that e.g., redressing is not viable). 7. Symptoms of the PTSD series: flooding of emotions, flashbacks, inability to sleep (generally subsides in less than 30 days)” (Sluzki 2010:2).
The ICC provides an inescapable source of exposure to trauma, but that is the nature of their work. They can face a variety of symptoms, ranging from sleep issues, somatization, to irritation that can plague their work and relation with coworkers. Staff, who are frontline practitioners and directly work with victims, must be aware of the level of exposure they will have with victim witnesses. In order to ensure candidates for staff positions are qualified, the ICC hires experts and utilized consultation mechanisms to provide sealproof guidelines and instructions.
3. Theoretical Framework
My research is framed around the friction between the view of the International Criminal Court as a retributive or restorative justice institution. It is important to note how the institution itself views its practices in order to better understand how practitioners, or street level bureaucrats, should be instructed to act. If the ICC seeks to be a retributive institution, then practitioners who interact with victim witnesses solely focus on extracting evidence and maintaining neutrality. If the ICC views itself as a restorative justice institution, then its mechanisms should uphold repairing the harm done to the victim, which entails providing a comfortable atmosphere and establishing trust in order to mechanize the interviewing space as means to heal.Within the framework of how the ICC should conduct itself, a restorative justice approach acknowledges these frontline practitioners as essential to the repair of harm as experienced by victims at the hands of their perpetrators. The latter is seen to become more prominent in the manner the ICC seeks to extend resources to address the needs of victims and witnesses. Other theorists also suggest that the institution of the ICC can be composed of both justice theories. For instance, the ICC has several different branches and logically the Office of the Prosecutor tries individuals and Judicial Division presents the rulings. Whereas, smaller branches, like the Victims Unit focus victims, who may need psychological assistance, as well as other necessary resources (Leyh 2012). I argue that the ICC has taken steps that are more restorative in nature, and manifest as staffs face new dilemmas in their interaction with victimwitnesses. Two theories will ground the initial framework, the first will explore the notion of street level bureaucracy as written by Scholar Michael Lipsky (1983) to better understand the pressure placed on frontline practitioners who bridge larger institutions to the public. Second, I include moral dilemmas, as conceptualized by Ruth Barcan Marcus (1980), to further illustrate the internal conflicts faced by the practitioner and the role of the institution to minimize these dilemmas. Larger institutions place burdens on street level bureaucrats, who directly interact with those affected by the institutions policies as presented by Lipsky (1983). Investigators andintermediaries are the face of the institution, and based on how they interact with victims, the public will form their opinion. These street level bureaucrats hold a large amount of discretion in how they conduct themselves with each witness, as they must adjust to the emotional needs of each individual. This heavy burden comes in many layers, as they must uphold and legitimize the institution in the eyes of the public, but they also must show that they are understanding and trustworthy. Discretion is often discussed as a means of frontline practitioners improvisation, who must engage in messy everyday interactions with the public (1983: 190). For instance, when an intermediary begins to negotiate a story with a victim witness, discretion can be seen as a must as the intermediary must rely on their own experiences and skills to encourage the victim to speak. Staff also act as advocates who vocalize the needs of individual victims to various branches of the organization. The street level bureaucracy theory suggests that such a role in incompatible with the need to judge and control clients, or in this case the victim witnesses. Their jobs as either clinical psychologists, who check the mental health of victim witnesses, or investigators seeking evidence through testimonies, are tempered by psychological and rolerelated requirements (1983: 74). The ICC acknowledges this and continues to refine guidelines and provide workshops on secondary trauma and cultural awareness. Within my research I shall debunk dilemmas presented within street level bureaucrat theory as I illustrate the instructions, guidelines, and training sessions given by the larger institution of the ICC to practitioners, or staff. Beyond framing the perception of these individual’s roles, I delve into the more psychological and institutionalized aspects of their engagement with those who have experienced traumatic events. Scholar Ruth Barcan Marcus explores moral dilemmas and its impact on how institutions are formed. She explains that, “as rational agents with some control of our lives and institutions, we ought to conduct our lives and arrange our institutions so as to minimize predicaments of moral conflict” (1980: 121). Moral conflicts arise when there is a plurality of principles that present contradictions on how one should act. In some cases, institutions realize inconsistencies through application and are then forced to revise principles. In order to resolve
such issues codes should be elaborated and principles should be ranked. This prioritization is necessary to combat and minimize the dilemmas practitioners face in practice. One of these dilemmas centers on the role of staff as promise keepers, whose benevolence can generate conflicts. Those who interact with victims who have faced traumatic events must ensure that the victim is comfortable with procedures, which entails taking them into courtrooms before trial to adjust to the physical environment (ICC 2015: 7). Yet, staff can only offer small means of promises, as testimonies can be thrown out, and victims left to have shared their stories but to see their role diminish. I argue the ICC has taken steps to resolve such issues and so, embodies a “singular principled moral system”, in which they emphasize the need to care for victims and provide psychological assistance. Marcus believes such a system diminishes dilemmas (1980: 122). The ICC uses external experts to refine their policies and elaborate principles that staff could find morally contradictory. In sum, these theoretical choices stem from recent literature in which practitioners themselves frame the obstacles they face in practice as, “messy social encounters... characterized by unwieldy dynamics”(Koomen 2013: 256). Practitioners understand that there is a hierarchical dynamic within their interactions with victims, for instance many cases are taken from the African subcontinent and staff, well dressed and in big shiny cars, arrive at a remote village leaves an impression on locals (262). It is undeniable that at times victims are intimidated, which influences the interview process greatly. In some instances investigators choose to approach the victim witnesses more quietly, at times concealing their own identity until they are able to talk more privately (258). Here the investigator acknowledges the perception of their role, specifically their legal affiliation with the court. This highlights the trend of pressure upon the street level bureaucrat, in other words the investigator and intermediary, who must contend with considering all the possible effects their position has on the victim witness. Such a dilemma entails compromising their legal guidelines in order to alleviate the fears and intimidation held by the victim. Current literature continues to focus on ensuring little harm is done to the victim during the interviewing process, but there should also be focus shifted onto the individual mobilizing this process. Investigators and intermediaries seek better training in order to minimize the moral dilemmas inherent in the uncertain and extremely sensitive atmosphere of their work.
To further understand the role the ICC, as an institution, plays in minimizing the moral conflicts faced by staff I center my data analysis around two subquestions: 1. How do institutional guidelines shape discretion utilized by staff, as we consider them street level bureaucrats? 2. How are experts and their recommendations incorporated into guidelines and policies in order to diminish moral conflicts faced by staff?
4. Method
In order to understand the uncertainty faced by investigators and intermediaries within the interviewing process, I will utilize primarily discourse analysis and document analysis, which will be supplemented by a semistructured interview. This multimethod design will allow me to delve into a meaningful application of theories that have not been typically associated with this field. Empirical data will stem from an interview and primary documents provided by the ICC and former consultant to the Office of the Prosecutor Sluzki, while secondary data, such as staff sentiments and behaviour, shall be collected through analysis of past literature and empirical research. 4.1 Research Design Document analysis focuses on inspecting the guidelines and instructions provided by the ICC, for example the Staff Regulations and the Code of Conduct for Intermediaries, that are public access and do not breach confidential terms as set by the ICC. Although this proved to stunt document accumulation at an early stage, it also illustrates the aim of the ICC to safeguard their staff and clients by imposing confidentiality agreements. A document that would be essential research on staff functions within the ICC would have been the Operations Manual, which is, “ a confidential internal practice manual which addresses all aspects of OTP operations” (International Criminal Court 2014b: 17). These types of documents are continually worked upon in order to ensure improvement through lessons learned, and new strategies. As the court seeks to refine its capabilities, they also seek to impose restrictions to regulate this process. Instead documents like the Code of Conduct, which was published in 2014 at the request of intermediaries and nongovernmental organizations that act as advocates, can allow for analysis of concrete guidelines that have shifted little in the past years. Analysis of these documents entails looking for the amount of instruction given for such a task that presents a high level of uncertainty, which means understanding how much guidance does this institution feel necessary to provide, what is omitted, and how does this affect their level of discretion. This canbe seen in page 3 of the Code of Conduct for Intermediaries (International Criminal Court 2014): “3.3. An Intermediary shall not participate in any activities or corrupt practices that compromise or appear to compromise his/her/its functions. These activities may include, but are not limited to: a. Receiving, directly or indirectly, any gift, favour, benefit or service from any person; or b. Offering or giving, directly or indirectly, any gift, favour, benefit or service to any person.” The ICC requires staff, like intermediaries who facilitate the interaction between investigators and interpreter with victims, to abide by guidelines intended to safeguard the welfare of all parties involved. The Staff Regulations, published in 2003, is used to cross examine the discrepancies between instructions given to intermediaries and staff. Beyond guidelines and regulations, reports made by experts will also be used to illustrate the process of policymaking at the ICC. Protecting the Health and Welfare of Staff, Victims, and Witness: Report of a Seminar at the International Court, is a report written by Sluzki, an external expert who gave recommendations for the creation of a Staff Welfare Office and necessary mechanisms to implement in order to minimize the negative sideeffects of interacting with those who have faced traumatic events. He also worked further on this topic and wrote a brief overview of suggestions, outlined in Traumatization and Protection of those Working with Victims of Massive Atrocities (2010). Beyond the point of view of external experts, the view held by high level staff is also included through the use of a policy paper and additional reports, such as the Policy Paper on Sexual and GenderBased Crimes (2014b) and the Report of the Court on Human Resources Management (2014c). The policy paper illustrates the mechanisms needed for better examination of victims who have faced sexual or genderbased crimes. The report, two of which will be incorporated into the study, also paints a picture of the manifestation of staff welfare initiatives. Instead we see the creation of a Human Resources branch within the ICC, not
a purely staffwelfare based implement, but instead one that incorporates fair employment practices as well. Data has also been accumulated through a semistructured interview which has been conducted with a clinical psychologist, who is a former staff member of the ICC and assisted in creating guidelines for the interviewing process concerning sexual and genderbased crimes. This interview took place via email, as the interviewee was abroad in Abu Dhabi, which presented an issue of ensuring clear understanding of each other as face to face interaction is an important necessity when discussing possible traumatic events they could have experienced in the field. Understanding that this practitioner could possibly struggle with discussing such sensitive work, I made sure to present them with a brief summary of my research goals as well as small ethics statement acknowledging my role as a student who has interest in the field, but not expertise. Due to the nature of this longdistance communication, there was no possibility of priming the interviewee nor room for clarification. It was a necessity to insure questions given would illicit a response that would benefit this study. 4.2 Respondents Unfortunately, attempts to find respondents were not very successful, due to the confidential nature of this topic. Instead, I utilize one primary interviewee who shall be referred to as VM. She facilitated special trainings for Office of the Prosecutor staff members and has served the Office for 11.5 years. Her expertise is on topics of sexual and gender based violence (SGBV) and she directly interacted with victims in her duties with the court. She also lectured for the module on psychosocial aspects of interviewing at the Institute for International Criminal Investigations. I provided open ended questions in order to promote a space for reflection. 4.3 Operationalization In the interview (held with VM) I asked three sets of questions based on her role as a clinical psychologist within the ICC, her work as staff within a specific case at the ICC, and her
past position as a lecturer at the Institute for International Criminal Investigations. These questions were broad but allowed the interviewee the choice to answer some questions over others. Through these questions I looked for typical street level bureaucracy dilemmas and moral dilemmas, which can be recognized as admitting transparency and communication problems between staff, the larger institution and victims. Moral dilemmas are more personal and are recognized by the individual accounts of daily activities and more so the feelings felt by the staff member throughout the various processes they were involved in. Section 1: 1. How do you define your role within the field of international criminal justice? 2. Can you give an overview of the process in which you assisted in creating the interviewing guidelines for the ICC, and share specifically what factors affected this process? (Such as who else was involved/ what were the resources you utilized?) 3. I understand that cognitive therapy is utilized by the ICC to assist victimwitnesses in formulating their stories, could you share your opinion on this method? Section 2: 1. How does the assessment process, that is conducted by you, differ from the interviewing process with an investigator? 2. Are there any means of sharing experiences and issues between fellow clinical psychologists and interviewers? How can investigators who find themselves struggling with the interviewing process seek assistance? 3. Could you share an experience of assessing a victimwitness who had issues of trauma? How did this trauma manifest within the assessment and interviewing process? 4. Prior to assessing a prospective victimwitness, how much information is given beforehand? What type of information is provided? With whom do you collaborate with to prepare for each assessment? Section 3:
1. What are some challenges you face teaching interviewing skills? 2. Could you give a brief overview of how you present the information you intend to teach? What tools do you utilize?
5. Data: The Institutionalized Line Between Advocacy and Long Term Control
For this section two pieces of institutional documents are used to illustrate what is imposed upon staff and intermediaries. First, the more general Staff Regulations, as adopted by the Assembly of State Parties in 2002, outlines the role and capacity of staff at the ICC from their duty to the court and to what is expected of them in their interaction with client parties. Second, the Code of Conduct for Intermediaries, as established by the ICC in 2014, sets the standard of behavior for intermediaries. These documents are then compared with the responses by the interviewee VM, who expressed satisfaction with current guidelines and anticipated further reform as street level bureaucracy shifts and bends to the needs of the institution and clients. Positions held by those who manage human relations find themselves caught between their role to act as advocates for clients, or in this case ICC staff as advocates for clients who are victim witnesses, and the lack of control as they hold positions that only deal with a section of the client’s case (Lipsky 1983). Through Lipsky’s theory of street level bureaucrats, the role of staff at the ICC in its’ interaction with victims can be seen to perpetuate and debunk some of the dilemmas outlined within the theory.5.1 Imposed Guidelines and Regulations
The primary function of staff is to serve as support for all functions of the Court, entailing a variety of duties to perform based on their appointment. Staff are international civil servants who pledge to regulate their conduct to the interest of the Court (ICC 2003). Due to the various commitments staff accept, the Staff Regulations have been kept broad enough to apply to all positions. In this section the focus is on instructions that directly apply to the performance of duties by staff. From the acceptance of their position to their pledge to the Court, staff are to remain representatives and ensure the highest standards of integrity, referring to “compliance with the relevant standards on confidentiality established by the Court” ( ICC 2003:5). The ICC as an international legal institution composed of various backgrounds must ensure there is uniformityin performance by staff, which is by creating regulations that define what they can and cannot do. For instance, staff cannot make any public pronouncement that could negatively affect their integrity and impartiality required by the Court as stated in Regulation 1.2(f) (ICC 2003: 6). They cannot make statements without permission by the Court and share what does not breach confidentiality. Intermediaries, as defined by the court are individuals and organizations who conduct one or more functions, as dictated by each case. Their scope of guidelines are less broad but more strict as they are not official staff and are simply temporary street level bureaucrats. They hold individual contracts, with terms specific to a case, which govern the relations between intermediary and the court (ICC 2014: 3). Nonetheless, they face many of the same dilemmas as staff due to their close proximity to victims in the field. Examples of their duties include assisting in the interviewing process as a translator or setting up a meeting between investigators and victim witnesses. Integrity is shown to be a prime concern for the Court, and is explicitly stated in the first line of Section 3: Professional conduct, “3.1. An Intermediary shall observe the highest stands of integrity and conduct in discharging his/her/its Functions” (ICC 2014: 2). The ICC seeks to ensure accountability through contracts and training that instruct on the need to preserve the integrity of their work through maintaining confidentiality, regulation of staff and intermediary functions with clients, and promotion of selfregulating. 5.1.1. Confidentiality and Alienation Due to the sensitivity of topics within the work of international criminal justice, confidentiality and privacy are of the utmost importance. Information and evidence must be preserved, meaning no manipulation of materials. The ICC employs staff and intermediaries to safeguard testimonies and stories shared within the field in order to be brought back for examination and further analysis. Discretion is utilized by staff and intermediaries when they
make judgements on how to secure their functions in the face of possible compromising situations. In the Staff Regulations section Confidentiality, guidelines are listed as:
“(j) Staff members shall uphold the highest standards of confidentiality in the discharge of their duties. Those standards include: (i) Full conformity to policies and procedures of the Court regarding confidentiality of documents, proceedings and other matters; (ii) Preservation of the integrity of information and evidence in whatever form held by the Court and refusal to compromise the effective retention, storage and security of information and evidence in whatever form it may exist; (iii) Discernment and vigilance regarding all communications that may raise issues of confidentiality, particularly communications with persons outside the Court; (iv) Immediate reporting of suspected breaches of confidentiality, especially where such suspected breaches would pose a danger to the safety, wellbeing or privacy of staff, victims, witnesses, the accused and their families; (v) Containment of reported breaches of confidentiality by refraining from unnecessary discussions thereof in any context” (ICC 2003: 67). Discernment and vigilance is what discretion is composed of for staff at the ICC. They hold a position to judge all communication, occurring within the space of their interviews or with fellow staff, and must store information securely. Lipsky argues the role of staff as advocates contrasts with their function to judge, as these street level bureaucrats cannot give themselves freely and unreservedly to clients. He goes on to say that, “they feel the need to make sure they do not lose control, respect, advantage, or face, or otherwise fail to perform as required by their role” (1983: 74). Indeed, this is what is dictated in the first guideline of the Confidentiality section in (i), expecting full conformity to policies and procedures (ICC 2003). The work of staff is tempered with many psychological and role requirements, which must be kept in mind when
working with victim witnesses. For instance, when staff experience social empathy, which is feeling the same emotions as the victim, it creates the need to find a means for reparation and increases the impulse for advocacy of redress (Sluzki 2010: 2). Such compulsions fog the requirements for equal treatment of victims and can create difficulties for other staff who must deal with the same victim client. Securing information received through the interviewing space illustrates a check on staff who deal with victim witnesses directly. This information will be seen and processed by other staff, and as a tenet of their role, the information provided must reflect the guidelines as close as possible. Intermediaries who interact with victim witnesses directly also face the similar instructions on confidentiality as staff. Although for intermediaries, they deal with these as imposed within their contracts, but are also encouraged to refer to the complete Code of Conduct which states: “4.3. An Intermediary shall not disclose any material or information identified as classified, as defined in Regulation 23bis of the Regulations of the Court, unless authorised to do so. 4.4. The obligations imposed under this section shall not cease upon completion of an Intermediary's Functions (ICC 2003: 4).” Classified information is handled by intermediaries, who feel improperly prepared for such a task. This brings a great deal of pressure on them to use their discretion to ensure such information is not shared, even after the end of their contract. They may have assisted in starting the interviewing process and collected the first stories needed to bring certain victims to a proper interview with an investigator, but as they only work on a segment of the process and cannot control the outcome, they can be left unsatisfied not knowing what is to come of their efforts. Lipsky acknowledges this issue as alienation, that is the need of street level bureaucrats to express or suppress their creative and human impulses while working (1983: 75). The ICC curbs such creativity by imposing these confidentiality agreements and burdening staff and intermediaries with being overtly precarious with the handling of information that is can impede
and deteriorate the altruism they may have first felt at the beginning of their job. Plagued with bureaucracy and the workload that comes with it, can diminish the meaningfulness of the work. The ICC not only imposes regulations on communication of information, but also communication with clients. The needs of the victim witness are held primary throughout these processes of information and evidence collecting, and so when victim witnesses wish to offer a gesture of appreciation staff and intermediaries can feel put in a compromising situation. 5.1.2. Gifts and Relations The ICC acknowledges the vastness of cultures they interact with throughout their work and have included a section about gift giving within both the Staff Regulations and the Code of Conduct for Intermediaries. In the section above altruism is seen to be affected by the manner staff and intermediaries can act upon their human impulses. With the needs of victims taken into account and utilized to configure procedures, the ICC has taken measures to construct the discretionary habits of staff and intermediaries. There is also a contradiction to be addressed while comparing these two documents. First, the Staff Regulations allows for acceptance of gifts, but with a condition of approval: “Honours, gifts and remuneration (k) No staff member of the Court shall accept any honour, decoration, favour, gift or remuneration from any Government or from any nongovernmental source without first obtaining the approval of the Registrar or the Prosecutor, as appropriate. (l) If refusal of an unanticipated honour, decoration, favour or gift from a Government would cause embarrassment to the Court, the staff member may receive it on behalf of the Court and then report and entrust it to the Registrar or the Prosecutor, as appropriate, who will either retain it for the Court or arrange for its disposal for the benefit of the Court or for a charitable purpose.
The ICC prefers for gifts to not be offered nor given, but understands that in some cases it is necessary to build trust and understanding. Staff may feel alienated in knowing they must refuse, but also begin to fear rapprochement from the victim, or client, if they do so. To ensure this dilemma is taken care of for staff, the ICC has included part (l) to alleviate the concerns of staff in the field. These gifts are accepted and taken to the Court for disposal for the benefit of the Court or a charity. Lipsky explains this phenomena of denial of human impulses as a need to ensure all clients are treated equally. Resources are fixed, with staff handling multiples cases and functions at once, so any gift must be used for the good of the institution. It also assists in managing special treatment that staff could be prone to do when so closely engaged with a victim (1983). Now when looking at what intermediaries are instructed to do in the same position, a contradiction occurs. The Code of Conduct, in Section 3, states: “Code 3.3. An Intermediary shall not participate in any activities or corrupt practices that compromise or appear to compromise his/her/its Functions. These activities may include, but are not limited to: a. Receiving, directly or indirectly, any gift, favour, benefit or service from any person. b.Offering or giving, directly or indirectly, any gift, favour, benefit or service to any person (ICC 2014: 3).” Due to the temporary position of intermediaries, gifts are not allowed to be exchanged, given, or accepted. There is no second clause to address any issues of mistrust or embarrassment that may occur when a gift is denied. The ICC has its’ reasons for such instructions, but fails to see that is presents an issue for intermediaries in the field when working with staff. This issue, revolved around the idea of gifts, can cause tension between staff and intermediary relations and affect the handling of the case. For the staff to accept in front of an intermediary, even on behalf of the court, can cause the intermediary to clash with the staff on proper guidelines unless their
discretionary habits have allowed for such functions. This is all dependant on the persons involved and their view of their work. Exchanging goods may hinder the interviewing process and forge relations that can interfere with how and what questions are asked. This highlights the special treatment dilemma faced by staff, as they must seek to forge mutual understanding and respect but also restrain themselves as instructed by the ICC. Regulations are necessary to impose on staff and intermediaries in order to minimize moral conflicts that could occur if gifts are given, which could shift preferences of staff, intermediaries and victims. Victims may only seek to work with one staff member they prefer, not knowing that this staff member may also have other clients to tend to as well. In this instance, the staff and intermediary must play judge but also police, in that they must review the options given to them in guidelines and instructions based on the case and victim witness involved (Lipsky 1983). They must judge what action is best and carry it out, if they feel any doubts then they must report it to the court. 5.1.3. SelfRegulation Lipsky argues that the role of street level bureaucrats holds contradictory mentalities, in the form of being an advocate, but also being a judge. Advocates “secure special treatment for clients” and judges make decisions based on the credibility, eligibility and performance of each client (1983:7374). Yet, staff and intermediaries also hold police functions, in that they selfpolice themselves in all decisions and functions afforded to them due to their position. To selfpolice means to monitor or regulate one’s actions. Selfpolicing comes under the scope of discretionary habits held by staff and shaped by guidelines (201202). This can be seen in Article VIII: Staff Relations, “Regulation 8.1 (a) The Registrar or the Prosecutor, as appropriate, shall establish and maintain continuous contact and communication with the staff in order to ensure the effective participation of the staff in identifying, examining and resolving issues relating to staff
welfare, including conditions of work, general conditions of life and other personnel policies” (ICC 2003: 11). Selfpolicing is not entirely an independent function but does assume that the individual, in this case a staff member, will communicate issues occurring in the field to the Court. The ICC places these mechanisms within guidelines to encourage self regulation and allow an outlet for any doubts held within one’s work, which is pivotal in selfmanaging moral dilemmas because it allows room for error. In the case of Intermediaries, Section 7: Duties towards the Court lists such guidelines as, “7.1. An Intermediary shall report, without undue delay, any breach or attempted breach of this Code to his/her/its focal point at the Court or Counsel. 7.2. In case of doubt regarding what behaviour to adopt, an Intermediary shall immediately refer the matter to his/her/its focal point at the Court or Counsel. 7.5. An Intermediary shall not deceive or knowingly mislead the Court or Counsel. He/she/it shall take all necessary steps to correct any error or inaccuracy made by him/her/it as soon as possible after becoming aware of the error or inaccuracy (ICC 2014: 45).” The first rule within this section holds the key term, “without undue delay”, once again confirming the burden placed upon street level bureaucrats to not only fulfill their duties but also to report when their duties have been compromised. Although, the second rule does direct intermediaries to focus their doubt towards the Court, or Counsel if applicable.
5.2 Staff View of Instructions
As I have only interviewed one former staff member, I will supplement staff responses through literature and reports published by these very staff members as well. Primary data collected through the interview will cover VM’s views as a former staff member, who is stillconstrained by confidentiality agreements with the court. Secondary data, collected through past research and literature, will fill in the void of real detailed experiences. 5.2.1 Personal Account Confidentiality restrictions became quite clear in the interview, as VM could not answer a portion of questions concerning differences between the assessment process practiced by her position as a clinical psychologist to that of an investigator. Nor could she recall an experience of assessing a victimwitness who had issues of trauma prevalent in the process. It proved to be difficult to clarify that I did not seek any names nor specifics of a case, but in regards to such sensitive work that does not in fact present an uniformity in experiences, it can be strenuous to share an experience without being specific. To anonymize each individual and location would present a burden to the interviewee. 5.2.2 Reports and Literature More concrete evidence of street level bureaucracy dilemmas are illustrated in Koomen’s piece regarding the experiences of intermediaries in the field. Koomen interviewed Monique, an interpreter who worked with investigators and directly with victim witnesses. In one instance Monique arrived with a van from the United Nations, to visit a village, where nearly all clamored to receive water and goods. Monique felt conflicted, she saw that the victim she came to interview was, “so thin, she was a shadow” (Koomen 2013: 262). She began to question her position but abided by the restrictions presented to her by the court, which were to simply take in stories and assist investigators. She felt as if she should be providing something needed like resources, and not just take stories as evidence and leave. She could not offer anything material to the victims, as stated in her instructions from the court. As a representative she must abide by these rules in order to maintain neutrality, but her story told through Koomen’s piece impacts the conversation international courts hold in regards to training and instructing intermediaries. This
piece was written in 2013 but recalls events beyond that year, it adds to the picture of internal conflict that can affect the duties of staff and intermediaries in the field.
6. Data: Regard for Moral Dilemmas
The International Criminal Court has always been concerned with the welfare of their staff, acknowledging the inherent dilemmas in handling crimes against humanity. Staff are the first line of contact for victim witnesses and they, as aforementioned street level bureaucrats, bridge connections between everyday life to the larger institution of the ICC. To address concerns over protecting staff from secondary trauma and minimize moral predicaments in duties and functions, the ICC convened experts in 2003 to discuss solutions that could be incorporated into a Staff Welfare Office, which will assist and support the staff at the ICC. Through the Special Report on Protecting the Health and Welfare of Staff, Victims, and Witness: Report of a Seminar at the International Court, the need for external experts can be seen to ensure proper guidelines and resources are available to staff. Consultation mechanisms employed by the Court to extract expertise has given way to a means of a multilayered guideline drafting process. Noted to be tedious but seal proof by interviewee VM. Also, through the lens provided by former consultant Carlos Sluzki M.D., a summary of a conference presentation will also be utilized to demonstrate the point of views taken in account by the ICC to reform its’ guidelines and instructions. The Traumatization and Protection of those Working with Victims of Massive Atrocities(2010) is also written by Sluzki, and discusses the difficulties staff may endure when engaged in cases dealing with trauma. Moral dilemmas become apparent in sensitive work where staff must interact with victims and maintain a professional distance. This has been expressed through the role of staff as advocates, who must insure their clients are given treatment, but also must contend with treating all clients equally. Marcus reasons moral dilemmas occur when principles are inconsistent and contradict. As rational beings when an inconsistency becomes apparent in application, then one should seek to revise that principle (1980: 122123). Within this section, institutional efforts through the guise of experts will be examined within reports, conference materials, and policy papers to demonstrate the manners i which the institution seeks to revise their guidelines and instructions.6.1 The Necessity of Training
Prior to assigning cases to staff, the court seeks to properly train them in order to insure staff are effective in their duties. Training provided by the ICC incorporates understandings of potential stress triggers while working with victims who have faced traumatic events. Within the Policy Paper on Sexual and GenderBased Crimes (ICC 2014b), the ICC states that they, “endeavour to ensure that all team members, as well as all other relevant staff members, including interpreters, have the necessary competencies and support to perform their functions effectively in relation to sexual and gender based crimes” (43). These competencies can be understood as discretion, that is that staff are capable to make decisions within the realm of their duties. The ICC is aware of the moral dilemmas inherent in their work and seeks out staff who can easily implement policies and practices as they become refined through time. Marcus recalls a quote from John Lemmon stating, “It may be argued that our being faced with this moral situation merely reflects an implicit inconsistency in our existing moral code; we are forced, if we are to remain both moral and logical, by the situation to restore consistency to our code by adding exception clauses to our present principles or by giving priority to one principle over another, or by some such device” (1980: 122). Those who chose this line of duty must be aware of the moral predicaments they may come across, but also how to act based on what is instructed to them by the court. Yet, they must also insure that they can keep up with these changes in policy as they occur. It can be argued that staff seek to maintain their logical and moral consistency through adoption of new policies. They must view their institution as morally correct and abide by their decisions. A moral predicament that grapples staff with direct interaction with victims is exposure to the detailed stories that can include possible crimes against humanity, such as witnessing systematic rapes, torture, amputations, extreme violence. Training has been utilized to prepare staff for such interactions where they can become susceptible to burnout, “compassion fatigue”, depression, and the inevitable decaying of their immune system due to stress (Sluzki 2013).Experts like Sluzki can give an educated and external opinion on how to deal with stress within these spaces. 6.1.1. Use of Experts The ICC hosts many seminars and conferences for experts from various relevant fields to share their knowledge and experiences. After the Rome Statute was enforced in 2002, the next year the ICC held a seminar on Protecting the Health and Welfare of Staff, Victims, and Witness. Within these seminar they utilized the expertise held by academics and experts in psychology to consider the needs of those working with and for the ICC. Having such diverse viewpoints allows for various perspectives to be highlighted on issues like, “The Relevance of Sociocultural Differences to the Work of the Court”(Sluzki 2003). The issue of cultural differences from having a Westernbased institution go into a nonWestern space is obvious, but having experts go into the specifics of how this may present complications, as well as crossanalyzing ICC practices with local practices gives the ICC the hand it needs to tackle international criminal cases. Within these conferences and seminars, experts act as advocates for both staff and victim, and propose the necessary devices to insure a higher quality of experience for all parties involved. Through this checking procedure, experts can ensure that guidelines are obeyable. Marcus defines rules as consistent when, “they are all obeyable in all circumstances in that world” (1980: 128). The world spoken of in this research is that of international justice, more specifically the world of staff who interact with traumatized individuals. When deliberating, experts must seek to refine guidelines and policies that would be fit for the uncertain atmosphere of the job. Within the seminar, former Vice President Akua Kuenyehia hoped that the ICC can utilize seminars as a means of selflearning. Sluzki offered his assumptions in an attempt to understand how to create such rational and manageable guidelines and policies. He lists them as:
1. “Exposure to detailed stories told by victims of possible crimes against humanity (witness or actual victims of multiple, systematic rapes and torture, amputations, witness of extreme violence to friends/family members) can be traumatic for staff (‘vicarious traumatization’). 2. Traumatic potential increases with proximity to victims + social isolation, lack of support. 3. Effect if unchecked: burnout, ‘compassion fatigue’, depression/irritation, decay of immune system→ disease” (Sluzki 2013: 12). Psychological issues were helmed as main point of discussion in order to prevent retraumatization of victims, as well as minimize distress of staff (Sluzki 2004: 572). The ICC, acting as a morally minded institution, devoted much of their resources to selflearning and selfregulating their actions. 6.1.2. Personal and Expert Accounts An expert account is provided through notes made by Sluzki in his reports and presentations. Due to the size of the ICC and the amount of ongoing cases, changes are accepted intermittently. Sluzki’s recommendations consisted of 15 policies to implement, ranging from, “Rais[ing] awareness among staff members (in particular those dealing directly with victims and witnesses such as interpreters and translators) of the possible adverse reactions they might anticipate because of the nature of their work,” to, “Encourag[ing] flexibility in the working methods of the Human Resources Section to ensure that individual needs are effectively met” (Sluzki 2004: 576). Such a range from individual guidelines to institutional policies meant that not all recommendations were implemented. With ongoing cases and limited resources, the ICC can only utilize new mandates on a rolling basis. Within Sluzki’s personal view of his consolatory functions, as well as acknowledging that he only engaged with top and midlevel staff, as “broadly successful; many recommendations were incorporated” (Sluzki 2013: 27). He goes on to explain that most
recommendations were implemented at least a year after reports were given. Yet, he is not the only one mindful of the untimely manner of policy acceptance. Interviewee VM provides a personal account, as she was heavily involved in the creation of a system of guidelines and protection and support tools for the Office of the Prosecutor. She explains, “Any and all of the guidelines and policies I was involved in in terms of contributions were always reviewed by a number of external experts from the respective field. This made the process necessarily slower and more cumbersome, but certainly also 'waterproof' when it comes to the quality and usefulness of the document in question. Guidelines and policies were just one layer of the continuous effort of the Office of the Prosecutor to assure that victims/ witnesses were being approached and treated in the most appropriate manner” (Interview with V.M. 2016). The ICC cannot implement all recommendations quickly, but those who criticize the speed of the functions as practiced by the ICC, should understand that time is dedicated to ensure the “waterproof” quality of policies and guidelines. Critiques tend to come from those lower in the staff level and clients, or victims and witnesses, that are on the groundlevel of policy implementation. This illustrates the pendulum effect, which will be revisited later in the next section.
6.2 Manifestation of Recommendations
The staff welfare report did not create the Staff Welfare Office, but did allow for the creation of the Court’s first Strategic Plan as its’ human resource strategy in 2008. This plan had nine objectives, and included key areas of: recruitment, a caring environment, and career development. The key area which closely resembles Sluzki’s recommendations is the caring environment, and more specifically it, “encompasses the three areas of attractive conditions of service, staff wellbeing and administration of justice” (ICC 2013: 7). For this study, staffwellbeing will be closely inspected, but it should be acknowledge how priorities from the report have yet to come to fruition. To outline how the ICC has chosen to care for staff, two reports on human resources are examined to see how true the ICC has become since 2002 to the morally ideal institution Ruth Barcan Marcus illustrates. 6.2.1. Staff Welfare Mechanisms Within the Special Report on Protecting the Health and Welfare of Staff, Victims, and Witness: Report of a Seminar at the International Court, Sluzki offered policies that would benefit staff welfare and minimize negative effects of secondary traumatization that can occur when staff feel alienated in their interaction with traumatized victims. For example, “5. Extend welfare support for some time after contracts have ended. 9. Encourage continuous internal communication (both on the horizontal and the vertical planes). 10. Promote and maintain a system of fair staff treatment (both transparent and clearly defined)” (Sluzki 2002: 575). Welfare support is a broad term, and can refer to the psychological and physical wellbeing of staff. Within the Report of the Court on human resources management, social security benefits for staff were said to be improved through the adoption of a subsidized retiree health insurance programme. Although no specifics were mentioned within this report, it still alludes to the moral concern of the institution to take care of staff after their duties have been fulfilled. This report also mentions the creation of the Staff Welfare Officer and their duties entailing the conduct of workshops and individual consultations with staff (ICC 2013: 9). This internal manifestation of space for reflection alleviates the burden of alienation faced by staff, who are restricted by confidentiality agreements and cannot discuss their work outside. Workshops centered on stress resilience and trauma were also provided and will continue to be
refined through the Court’s establishment of an, “interorgan working group on the working climate” (10). Revisiting Marcus’ notion of consistency, “as defined for a set of meaningful sentences or propositions, is a property that such a set has if it is possible for all of the members of the set to be true, in the sense that contradiction would not be a logical consequence of supposing that each member of the set is true”(1980:128), there is a definite goal for the ICC to adopt recommendations in a manner that will minimize contradictions in practice. Indeed, this is what the ICC wants when it stresses the need for internal Welfare Officers taking care of the psychological wellbeing of staff. This, too, is shown in the need for transparency and the continuing reports that occur every year that seek to ensure that policies are intact with the all other policies, ranging from staff levels to geographical locations.
The Report of the Court on Human Resources Management, gives more insight into the ICC’s methods of promoting fairness. They cite their improvements as, “Overall, attention was paid to the time needed to recruit and steps were taken to improve recruitment quality. Proactive planning, the review and development of uptodate, businessfocused job descriptions and the use of competencybased interviewing have all contributed to ensuring that the best candidate for the job is hired” (ICC 2014c :4). Utilizing a multimethod hiring process allows the ICC to chose competent individuals to gain staff positions, a necessity in the strenuous environment that comes with the institution. Fairness is further demonstrated in the need for gender balance and geographical representation within the staff, which is continuously monitored (ICC 2014c: 4). The Court also shortlists candidates from nonrepresented or underrepresented countries, to achieve their objective of a balanced staff. In regards to intermediaries, the Court recruitment process includes an individual risk assessment, and based on the case assignment they will also receive relevant information on good practices for risk prevention and management (Vasylevska 2015: 2). These recruitment practices illustrates the ICC’s responsibility for staff security and welfare.