Judgment No. 4006
The complaint is dismissed.
The complainant contests the decision of the Presidency of the Court to set aside his Complaint for the removal from office of the Registrar of the Court.
harassment; complaint dismissed
At the forefront of the ICCís contention about receivability are the provisions of Article II of the Tribunalís Statute. Those provisions define, establish and limit the Tribunalís jurisdiction. The ICCís contention is receivable, notwithstanding that no point has been raised before and within the internal consideration of the complainantís Complaint about the receivability of the complaint. Plainly enough, the issue of the jurisdiction of the Tribunal, as established by Article II of its Statute, can only arise at a point when a complainant seeks to invoke that jurisdiction.
Article II is concerned with the vindication and enforcement of individual rights or privileges of staff members of international organisations, conferred either by normative legal documents regulating or governing their employment, or conferred by the terms of their appointment. Similarly, the Article is concerned with the enforcement of obligations or duties of international organisations towards their staff. An overlay on these rights, privileges, duties and obligations is the Tribunalís case law. These rights or privileges and duties or obligations may attach to individual staff members or a particular class of staff members which, obviously enough, can, and often does, include all staff members. This description of the scope of Article II can be expressed in a variety of ways. But this description captures the nature of the jurisdiction conferred on the Tribunal by Article II. There are many judgments of the Tribunal that address this question including, recently, Judgments 3526, consideration 5, 3642, consideration 11, and 3760, consideration 6.
Articles 46 and 47 of the Rome Statute together with the implementing Rules in the ICCís Rules of Procedure and Evidence, are not intended to confer on members of staff, and do not do so, a particular right or privilege for the benefit of staff; nor are they intended to impose, and do not do so, a particular duty or obligation directed to members of staff. Rather, those provisions are intended to benefit the world at large. That is to say, they are provisions intended to preserve the integrity of the ICC as an international court by imposing a standard of conduct on the judges and senior officials of the Court, creating a mechanism for the enforcement of those standards and, additionally, affording anyone with an interest the opportunity to enforce those standards. They are not provisions of a character comprehended by Article II of the Tribunalís Statute insofar as they are invoked by staff members other than, potentially, the officials directly affected, such as the Registrar, the Prosecutor or an individual judge. Accordingly, proceedings invoking Articles 46 and 47 alone and seeking their enforcement are not within the Tribunalís competence.
ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 3526, 3642, 3760
receivability of the complaint; competence of tribunal; ratione materiae
[I]f a member of staff pursues a grievance by an incorrect procedure, but there is another procedure which would be appropriate, the organisation is under a duty to advise the staff member to follow the appropriate procedure (see, for example, Judgment 2345, consideration 1(c)).
ILOAT Judgment(s): 2345
duty to forward appeal to competent body
Whether the complainantís belief was correct or not is not raised directly for consideration in these proceedings. But it is almost certainly correct that either by operation of the doctrine of necessity, or because the Registrar could have delegated the power to deal with a formal complaint of harassment against himself under Administrative Instruction ICC/AI/2005/005, a complaint under the Administrative Instruction was capable of being processed (see the commentary in Judgment 2757, consideration 19) and, if made out, remedies of the type sought by the complainant (including compensation) could have been awarded. If this is correct, then the complainant was denied an opportunity to pursue his claim of harassment on its merits, which did not involve establishing conduct of a particularly egregious type and which would have made available many of the remedies he sought, if harassment could, as a matter of fact, be established without crossing the ďthreshold of gravityĒ thought to be established by Article 46 of the Rome Statute. If the complainant now elects to pursue a formal harassment complaint under Administrative Instruction ICC/AI/2005/005, then it would be desirable for these matters to be taken into account by the Administration in assessing whether it should raise barriers, such as time limits, in order to prevent this course being pursued.
conflict of interest; necessity