Workplace Harassment at the ICC Stubbornly Persistent — Part 2: willful blindness, callous indifference, blissful incompetence or institutional protectiveness? 

Part 2

The Disciplinary Committee takes into consideration, however, that the investigations carried out were not sufficiently thorough, particularly with regard to the role played by Mr. Emmanuel Altit in the management methods that led to the inappropriate behavior denounced by the complainants … nevertheless noted the particular seriousness of the alleged offences, repeated over several years and resulting in deep-seated trauma from which some of the complainants are still suffering today, as evidenced by the tears and clear signs of suffering observed at the hearing.

The International Criminal Court’s award [fine] of costs is justified by the fact that Ms. Jennifer Naouri’s actions were reported by the plaintiffs to both the Registry and the CSS prior to the filing of the complaints, without the Court’s bodies having taken adequate measures (instructions, investigation, control, call to order) to stop or prevent them.

Disciplinary Committee Decision, Disciplinary proceedings against Ms Jennifer Naouri

Part 1 dealt with general context and why the Registry in no small measure is responsible for much of the persistent workplace harassment as it relates to the defence. Part 2 will focus on the Disciplinary Board’s (Board) findings against ICC Defence Counsel Jennifer Naouri. Without reading too much into the tea leaves and mainly relying on what was reported by the complainants/victims and now proven by the Board, as well as what I have heard and observed and surmised for nearly a decade, I will offer my take on why Naouri behaved as she did, and why others in like circumstances are susceptible to behaving likewise. My aim is neither to demean nor moralize. Rather, in examining the findings, I aim to see what lessons can be learned for improving workplace conditions for all members of defence teams. For this it will be necessary to examine how the Registry, Naouri, and all of us in the ICC List of Counsel might improve in providing the best possible representation to suspects and accused during pre-trial and trial and convicted persons on appeal.

Before turning to the Decision, it is important to consider three preliminary points and one key caveat.

First, the standard of proof is clear and convincing. It is appreciably lower than proof beyond a reasonable doubt (near certainty required for convictions of crimes and offenses against the administration of justice (Art. 70 cases)) and higher than the extremely low preponderance of evidence (51% versus 49%). Although not the highest standard of proof, clear and convincing is nonetheless rigorous – requiring more than mere suspicion or minimal credible evidence. In other words, the evidence is sufficiently weighty, reliable, probative, and corroborative; hence, convincing.

Second, the findings could be reversed on appeal. While the Rules of Procedure of the Disciplinary Board and Appeals Board are silent, in a recent appeal decision the Disciplinary Appeals Board noted in deferring to the factual findings of the Board, it would only intervene where unable to discern how the Board’s conclusion could have reasonably been reached from the evidence and where such error materially affects the Impugned Decision.¹  This is the same standard of review for overturning findings of fact for substantive crimes or Article 70 offenses. Pragmatically, it is exceptionally difficult to overturn findings of facts on appeal. The bar is remarkably high: error is found in factual findings if no reasonable trier of fact would or could have made those findings / reached that decision. Errors must be material – but for the error, a different outcome would be high. It is not about whether the trier of facts (Trial Chamber or in this instance the Board) was correct or whether it would have reached different findings, but whether the findings were reasonable.

According to the Decision, the Board had the benefit of considering:

• • • written statements from the eight (8) plaintiffs,
    • testimonies produced by the defence,
    • the statements made at the hearing by the fourteen (14) witnesses called respectively by the defence, the Commissioner and the Committee itself, including five (5) complainants,
    • background information provided by each of the parties, particularly concerning the working environment and managerial practices, and
    • Naouri’s declarations and documents she produced.

As I noted in Part 1, I was not present during the proceedings and have not reviewed the evidence. The findings of the facts, as presented in the Decision seem to support the Board’s ultimate finding that Naouri committed serious disciplinary offenses for which she received an 18-month suspension. Without presuming the merits of any factual errors Naouri may raise on appeal (if she is challenging the Decision), the Board seemingly correctly applied the standard of clear and convincing evidence having evaluated the evidence both atomistically and holistically. The findings seemingly pass the reasonableness test: they are logical, common-sense, scientifically sound, and consistent with experience.

Having been found to have committed ethical breaches, the onus is on Naouri to disprove the findings. Also, her adopted non-dispositive defence seemed to validate the factual claims against her. Effectively presenting a range of strategic explanations rather than a unified, coherent theory of a defence case, Naouri offered a smorgasbord of excuses as opposed to legal justification with proof refuting the alleged conduct which she was found to have committed.

Third, debating the appropriateness of the 18-month suspension adds little value. For some it may be too stiff, for others too lenient. The sheer public nature of the proceedings and resulting humiliation seems significant. Perhaps. But that is little if any consolation for the complainants/victims who testified of their ongoing psychological suffering. Nor is it sufficient as a deterrent, especially, as we will see, Naouri sees herself as the victim not the victimizer. To my knowledge, the complaints/victims expressed no vindictiveness, no base desire for retribution. Rather, they came forward for the very same reason I write on the disciplinary proceedings and the Decision: to expose the inappropriate workplace harassment and psychological and professional harm done to them in the hope that the Registry will act and that Naouri (and others who potentially may find themselves in like circumstances)  undergo the necessary training and treatment to prevent any further instances of harassment, harm, or professional mistreatment of staff that fall under her supervision and authority.

Caveat: To avoid mischaracterizing the evidence and findings, and since the Decision may not be available for some time, I will quote extensively. I will refrain from naming the complainants / victims and witnesses, save for Emmanuel Altit, Defence Counsel in the Gbagbo case, and Dov Jacobs, Co-Counsel/Associate Counsel and second-in-command in the Said case. It bears underscoring that the French version is the official version; quotes in English have been translated and checked against the French version for the benefit of this two-part series. Any errors are entirely mine.

The Naouri findings

As part of her defence, Naouri claimed that in the Gbagbo case she was operating under Altit’s domineering influence and simply following his instructions. In contrast, she maintained that the Said case, having been “emancipated” from him, unfolded with comparatively fewer challenges. Here is how the Board characterized Naouri’s overarching defence:

With regard to the Gbagbo case, the Committee notes that Ms. Jennifer Naouri presents herself as the first victim of Mr. Emmanuel Altit’s toxic management, while at the same time finding herself, in spite of herself, in the position of executor of this system. She explains that, given her young age at the time, she was unable to distinguish between good and bad management. She also maintains that the plaintiffs, while having worked on the case, they had in reality little contact with Mr. Emmanuel Altit. As her own face was the one they saw on a daily basis, she believes this made it easier to focus blame and project responsibility onto her alone. She also points out that some of the plaintiffs, notably _____ and _____, witnessed Mr. Emmanuel Altit’s toxic behavior towards her.

With regard to the Saïd case, Ms. Jennifer Naouri states that working conditions are radically different, and that she has emancipated herself from Mr. Emmanuel Altit’s management style, as attested by several favorable testimonials from people who have worked or are still working on this case, in particular ____(Exhibits SA1; DV1). Ms. Jennifer Naouri asserts that no toxic dynamics could be reproduced.

Summarizing Naouri’s position

The Disciplinary Committee note[d] that Ms. Naouri was keen from the outset to distinguish between two areas intervention: the Gbagbo team, in which she acted as co- counsel under the supervision of Lead Counsel, for whom she asserts that the malfunctions were structural in nature and therefore not her direct responsibility, and Mr. Saïd’s defence team, which she led herself.

Naouri acknowledged that [in Said] she had probably continued, at the beginning of her direction, certain bad habits inherited from her previous positions, thus admitting the possible existence of epiphenomena yet the Board expressed its regrets that Naouri:

[I]n response to several questions put by both the Commissioner and the Committee members, she focused on her own experience with Mr. Altit, presenting herself as the main victim in the Gbagbo case, without ever mentioning the complainants or acknowledging their suffering. This silence is all the more questionable given that the disciplinary proceedings underway relate exclusively to her personal conduct, and that no complaint has been lodged against Mr. Altit.

Asked specifically by the Commissioner whether she thought the complainants might have suffered psychological distress, Ms. Jennifer Naouri declined to comment, saying only that “the complainants tell their stories and their perceptions.”

The Disciplinary Committee is therefore particularly concerned by the fact that, while Ms. Naouri never denied the suffering expressed, she never really acknowledged it. She admittedly noted, in a factual manner, the existence of ill-being among the complainants, but she expressed no tangible empathy, even when some of them broke down in tears during their hearing. Nor did she apologize, even though she claims, in relation to the Gbagbo case, to have been “an unwilling executor” of a toxic working climate induced by Mr. Altit, Lead Counsel. The Disciplinary Committee notes a kind of dissonance between the awareness she claims and the absence of a clear position on her responsibilities towards the complainants.

The Disciplinary Committee nevertheless notes that, with regard to the Gbagbo case, Ms. Naouri indicated that, absorbed by her own suffering, she had failed to perceive that of others, and thus acknowledges a form of moral responsibility.

Naouri had her mother testify. Her mother served as a quasi-psychological character witness, though she lacked any professional expertise. Offering no explanation why Naouri broke[] the momentum and enthusiasm of young professionals, with a modus operandi described as “terrifying”, as characterized by Commissioner Catherine Mabille, she merely claimed that Jennifer always wants to please everyone, she is unconsciously programmed to consider abuse as normal, this stems from her childhood, with a very dominant father.

While expressing sympathy for the mother’s testimony (mothers as witnesses are notoriously deemed inherently subjective and biased), the Board rightly found it unhelpful. If indeed what the mother claimed was true, would it not have been more appropriate to have an evaluation and an expert report made available to the Board? Whether this was a genuine psychological theory or a tactical appeal is unclear – and its potential for success is purely speculative. Naouri herself acknowledged her lack of experience. This acknowledgment – token as it may have been, and somewhat evasive given her lack of trial experience and non-membership in any bar — cannot be overlooked. In addition to her character traits – along with Altit’s style and hands-off management approach (discussed below) – Naouri’s lack of qualifications contributed to the toxic work environment which persisted through Gbagbo and carried into Said.

Naouri’s counsel’s closing remarks illustrate a lack of a cohesive theory of the case; a scattershot defence, marked by conflicting excuses and logical inconsistencies. Here is the Board’s complete summary:

In its concluding remarks, the Defence Counsel, while acknowledging the profound and undeniable suffering endured by the plaintiffs, considered that the primary responsibility for this lay with the Court itself, and in particular with the budget it allocated to the defence teams. In his view, the limited resources made available contributed directly to the dysfunctions observed, and must be taken into account when assessing the facts.

With regard to management methods, the Defence Counsel distinguished between two situations: the Gbagbo affair, which it considers to be a structural problem, and the Saïd affair, which it describes as isolated epiphenomena that do not reflect a systemic dysfunction.

With regard to the Gbagbo case, counsel for the defence emphasized that no significant changes had taken place after August 1, 2018, this continuity being explained, in his view, by the fact that Mr. Altit remained, in law, lead counsel and therefore responsible for the team. Ms. Naouri, for her part, was merely an executor, subject to Mr. Altit’s authority and decisions. In this respect, the defence emphasized the numerous health problems encountered by Ms. Naouri during this period of collaboration, which it attributed to a toxic managerial environment established by Mr. Altit.

Still in the context of the Gbagbo case, the defence recalled that the plaintiffs in question remained shortly after August 1 2018, a period subsequent to the No Case to Answer phase, marked by intense stress and an episode of severe psychological distress for Madame Naouri. From that date onwards, according to the defence, there is no evidence of harassing behavior such as yelling. Counsel for the defence also points out that Ms. Naouri’s professional criticisms were systematically misinterpreted, and that the accusations of disparagement are summed up in remarks such as that some of the complainants were still “green” or that their  French was “not very presidential.”

As regards the Saïd case, counsel for the defence asserted that this was a fundamentally different situation, in which none of the behaviors alleged against Ms. Naouri by the three complainants could constitute harassment.

Finally, the defence challenged the representativeness of the collective complaint, arguing it does not faithfully reflect the individual experiences of the fourteen complainants, but that it is essentially based on the account of just one them , which, in the Counsels view, has influenced all subsequent testimony.

Naouri casts herself as the victim, having suffered under her domineering Lead Counsel, not the complainants/victims who she suggests exaggerate and confabulate. But, if she was cruel and abusive, her father is at fault for instilling a kind of behavioral imprinting that, according to her mother, unconsciously conditioned her to consider that abuse – inflicted on her and of her inflicting abuse on others subordinated to her – as normal behavior. And in any event, the real culprit, the kicker as it were, for the unfortunate albeit unacknowledged and unaccepted mistreatment of her subordinates, is the penny-pinching Registry for providing insufficient funds. Considering her micromanaging and controlling nature, it is hard to swallow that her counsel’s closing remarks (or pleadings as the French proudly, and rightly so, are known for), were not scripted and/or approved by her. Just because she was the client/offender in this case, doesn’t mean she ceased to have control over the case and in shaping the theory of the case. Despite her experience, it appears that neither she nor her counsel fully grasp the nettles of the theory of the case concept in adversarial settings.

Despite Naouri’s claims of Altit’s abusive behavior towards her, which in turn would explain her abusive behavior, she remained in the position that gave her prestige and opportunities in court proceedings at the ICC despite her lack of experience. She remained in the position because of power, arrogance, and hubris. Not to get personal, but this is the attitude and aura she projected from my very first meeting with her around 2014-2015. She enjoyed her position, the attention, the authority she commanded over the staff. She was, as they say, on a power trip. These hardly align with the posture of someone claiming victimhood.

Altit may have contributed to the culture of abuse by his hands-off approach, but Naouri’s rude and appalling treatment of her subordinates was of her own volition. If she was abused by Altit as she and her second-in-command Jacobs claimed, how does this square with her abusive treatment towards the staff. The complainants’/victims’ accounts of Naouri’s recurring psychological violence against them was persuasive enough for the Disciplinary Board to find that they suffer the after-effects of post-traumatic stress disorder. The recurring psychological violence inflicted by Naouri also has the hallmarks of the cycle of violence associated with battered woman syndrome.

Once emancipated and no longer under Altit’s spell and grip as she claimed, why did she continue her abusive behavior as Lead Counsel? Was this something that was drummed into her by Altit as his version of best practices in running a Defence team? Was she groomed by Altit? Perhaps Altit failed to mentor her appropriately  (assuming he was in a position to do so). Perhaps Altit should have exercised better judgement in placing a woefully inexperienced law graduate in a position of authority. Perhaps Altit should have been more active and more accessible to his entire Defence team. So what? None of this explains let alone justifies how Naouri chose to conduct herself in both cases. None of this absolves her behavior.

Other than claiming psychological trauma at the hands of Altit, there is no evidence, no psychological report, no proof of an evaluation or treatment. She may well have suffered as claimed, but her attitude and actions belie any notion that she was some weak, helpless, vulnerable underling; a proverbial doormat, if you will. Altit may have overlooked how she treated his staff (their subordinates), and if so, he too should be held accountable. Even if Altit controlled her and abused her as she now claims, what does this have to do with her abusing her staff in the Said case when she is total command. No evidence was presented that she suffered a Manchurian Candidate-type brainwashing at the hands of Altit – turned into an unwitting abuser of vulnerable and defenseless staff hired and supervised by her. Rather, the findings from the evidence given by the complainants/victims suggest that she delighted in degrading and distressing and debilitating case managers and legal assistants and other subordinates.

Jacobs gave evidence in support of her claims, but the Board found his testimony to be subjective and lacking in credibility. In the Board’s words:

The Disciplinary Committee notes that Mr. Jacobs mainly devoted his testimony to accusing Mr. Altit of having been at the origin of a particularly problematic management style, which was then taken over by Ms. Naouri. He mentioned that Mr. Altit decided on the authorization to leave The Hague and adopted inappropriate behavior towards Ms. Naouri, other team members and himself. He also described the suffering suffered by Madame Naouri, which he attributed directly to Monsieur Altit. However, the majority of the facts recounted by Mr Jacobs date back between seven and ten years.

With regard to the facts at issue in the present proceedings, and when questioned by the Disciplinary Committee on this subject, Mr Jacobs was unable explain why the complainants had left the defence teams in which Ms Naouri was counsel. He merely stated, with regard to the Saïd case, that the atmosphere was different there, that well- being and mental health were taken into consideration, and that he had never heard Madame Naouri shout, either in this case or in the Gbagbo case.

The Disciplinary Committee finds this position particularly surprising, given that Mr. Jacobs has been working since the early days of the Gbagbo case, and therefore has significant seniority within the defence teams of Mr. Altit and Ms. Naouri. His testimony blatantly contradicts that of the plaintiffs, whose concordant accounts mention similar facts and the constant presence of Mr. Jacobs at Madame Naouri’s side.

The Committee also notes that Mr. Jacobs justified the complainants’ departure on the grounds of the heavy workload within the defence teams. He added, surprisingly, that in his view there was a form of “hypocrisy” in the courtroom, implying that the complainants were adopting an insincere posture and that they were placing responsibility on Ms. Jennifer Naouri that she did not have. Such statement, which is totally at odds with the testimonies of all the complainants, seriously calls into question Mr. Jacobs’ objectivity.

The Committee also notes the astonishing contrast between Mr. Jacobs’ ability to provide information and details on the physical and emotional consequences of the conditions imposed by Mr. Emmanuel Altit on Ms. Jennifer Naouri and himself, and his inability to provide any details on these same consequences with regard to the complainants who worked under his direction and that of Ms. Jennifer Naouri during the relevant period.

Lastly, the Disciplinary Committee noted that Mr. Jacobs, like Ms. Naouri, is not a lawyer, but is only registered on the Court’s list of counsel, and that as as such, he has not benefited from in-depth and recurrent training in professional ethics like any lawyer registered with a bar association. (underline added)

Consequently, the Disciplinary Committee considers Mr. Jacobs’ testimony to be complacent and of little credibility, and accords it little probative value.

It seems rather shocking that neither Naouri nor Jacobs are members of a bar. This might explain certain things. But it also raises significant questions, in particular, why does the Registry place such a low premium on actual qualifications, of which being a member of a bar for which one must qualify and be subject to the professional code of ethics, is essential? In part, I suspect, it is because no one in the Registry fully appreciates what defence lawyers do and the qualifications they must have to lead a case. Which is why in Part 1 I argued that the Registry has rightly earned the lion’s share of credit for this and other like situations of workplace harassment and for the substandard representation of suspects and accused at the hands of less-than-qualified defence counsel.

What Naouri doesn’t get is that without these essential members of a Defence team, no Lead Counsel or Associate/Co-counsel, however talented and experienced, can effectively represent a client in these mega-cases. The winning formula for a successful team is to have a healthy work environment, where ideas and opinions can openly be exchanged, where everyone is recognized for what they bring to the team and to the success of it, where there is mutual respect, and above all, where there is an understanding that without them, Lead Counsel and Associate/Co-counsel cannot diligently and effectively do what they must do to ensure the very best representation of the client.

Micromanaging has its place. I have no problem with Lead Counsel or Associate/Co-counsel wanting to approve all emails going to Chambers or the prosecution. Being hands-on in reviewing and re-drafting and if necessary re-assigning the drafting of submissions is, in my view, an essential aspect of leading a team. Sometimes this is not understood by young, inexperienced lawyers who misguidedly think that as members of the team they also have authority in certain matters.

Being old-fashioned, I firmly believe that in no court, let alone an international(lized) criminal tribunal or court should I allow inexperienced lawyers to make submissions in proceedings or to be questioning witnesses. Other than Lead Counsel and Associate/Co-counsel (or other members of with like skills, qualifications and experience), no other member of the team should – for the sake of getting experience and learning on-the-job – examine witnesses or make presentations during opening statements or closing arguments – even if scripted and read or memorized. The client deserves the very best representation and his or her case should not be used as a learning experience for or experimentation by inexperienced lawyers. Clients are not guinea pigs and should never be treated that way.

It sounds unfair to the young and smart and talented lawyers, but if they want experience, they should start at the bottom in their national jurisdictions where they can learn the basics and can do little harm. Knowing the law is not enough. Just as you would not want a professor of anatomy with no experience as a surgeon to go into the operating theater and perform brain surgery, why would you (were you the client) want a learned but unskilled counsel or academic conducting certain matters during the trial that required skills developed and acquired only through sustained training, practice, and exposure.

Lead Counsel is selected to lead, not to run a finishing school for lawyers who, were they in the dock as the accused, would object to having lawyers such as themselves with their lack of skills and experience, taking evidence and making submissions. Being hands-on at the wheel and running a tight, disciplined, and efficient ship is not only appropriate, it is essential. The approaches taken and the manner in which the crew is treated makes all the difference. There is no such thing as smooth sailing in cases as challenging as the ones that are tried at the ICC. But a good captain knows how to manage the crew, how to motivate them, how to train them, how to make quick judgment calls, how to deal with shortages be they in labor or resources. And how to accept responsibility.  And how to do so without lashing out at or blaming young subordinates.

When the crew is treated fairly and with dignity and with appreciation, individually and as a team, they will give their best and their most – and that may make all the difference in weathering the inevitable and often unpredictable storms that lurk ahead. For that to happen, you need a confident, secured, experienced, and understanding captain at the helm. Sadly, Naouri as second in command in the Gbagbo case and first- in-command in the Said case lacked some of these qualities.

The Disciplinary Boards findings paint a picture of Naouri as an arrogant and dismissive bully with unrestrained hubris, devoid of any sense of self-awareness and empathy. But there is more to it as to why she treated her subordinates the way she did. Her described flawed character alone tells only half the story. The rest has to do with her lack of experience, the situation she placed herself in, and the ways she consciously selected to deal with her staff on day-to-day, run-of-the-mill affairs that are part and parcel of the pre-trial and trial phases in defending before the ICC and elsewhere.

Although inexperienced and untested, and overconfident in her skills and knowledge (pretending and projecting to know more than she knew, and worst yet not knowing what she didn’t know), Altit made her his second-in-command, his number two. It should have been obvious that she lacked the skills and had no experience in running a team. Perhaps Altit thought she could grow into the position despite her lack of experience, skills, and practical knowhow on managing a Defence team. Having turned over the reins to Naouri, as it seems, does Altit bear any responsibility? The Board, as we will see, seemed to have ruminated on this.

Naouri may be smart and a quick learner, but as I noted, running a case is more than about knowing the law and procedure, having a rudimentary knowledge of adversarial skills, or being sufficiently equipped to put together cogent legal argument. Managing skills – like those needed in trial advocacy – are acquired, not innate. They are not taught in law schools. Having an LLM or PhD may help in knowing the law or where to find it, but they do not help in knowing how to manage a Defence team in complex cases. Naouri’s misconduct and abusive behavior towards those she supervised was due to lack of experience and lack of competence. The venomous behavior described by her victims appears to be the product of her projecting and scapegoating. From the evidence adduced and the Board’s findings it appears that Naouri was deeply insecure while harboring a profound superiority complex and seeing herself as unquestionably the smartest, instinctively and uninhibitedly lashing out when threatened by anyone appearing to be smarter, or when challenged by anyone who dared voice an opinion.

The fact that she continued to treat her staff the same way in the Said case when she was not under Altit and even after she was on notice of the complaints filed against her, suggests an inability to self-examine behavior towards subordinates she deems inferior. Frankly, it will be hard for her to come to terms with her victims’ truths. She feels wronged, under attack, and unjustifiably accused. Or even if what was described of her behavior to be true, others are to blame. If only Altit had not enslaved her. If only the staff had been smarter, more skillful, more attentive. If only she had not been so misunderstood. If only … Such justifications detract from acceptance of responsibility and obstruct genuine rehabilitative efforts.

Until Naouri genuinely recognizes her limitations and deficiencies and stops blaming others for her behavior, and until she makes an effort to learn from and be mentored by experienced counsel, I seriously doubt she will mend her ways – except perhaps superficially, as part of a rehabilitative charade. This is a tall order. It requires self-awareness, humility, and acceptance. It also requires that she seek professional counseling; not because it is ordered but because of her own realization of a need help. For starters I urge her to embrace the core precepts of the Serenity Prayer:

God grant me the serenity
to accept the things I cannot change;
courage to change the things I can;
and wisdom to know the difference.

What of others in the hierarchy – do they share responsibility?

Emmanuel Altit

Altit seems to have been given a pass by Commissioner Mabille. The Board was surprised that despite having been mentioned several times in the statements of the various parties, he had not been named. He was not among the witnesses called by the Commissioner, nor among those for the defence, took the initiative of having him called at the hearing.

Naouri is responsible for her conduct, but as Lead Counsel does Altit not bear responsibility for the treatment of his staff for whom he is ultimately responsible? Perhaps not. But should he not have been questioned during the investigative phase? Assuredly yes -– especially given what both Naouri and Jacobs, and other witnesses claimed. Here is how the Board put it:

The Disciplinary Committee notes, despite being confronted with a line of defence tending to attribute responsibility to him for the actions of which Ms. Naouri was accused, Mr. Altit made a point of praising her. He described her as intelligent and highly efficient, adding that he thought she was appreciated by the team. He spoke of convivial moments shared between members, including outings between colleagues and team dinners organized at his home, during which he said he had always perceived a good atmosphere.

When questioned by the Disciplinary Committee about his own involvement in the day- to-day running of the team, and in particular the hypothesis that he had personally directed, proofread or validated each message, Mr. Altit categorically rejected this idea. He asserted that he had always granted a large degree of autonomy to his collaborators, including Madame Naouri, believing that “the most precious thing in a team is the collaborators.” He also denied ever having forbidden anyone to leave The Hague, as he had been accused of doing.

The Disciplinary Committee notes Mr. Altit’s obvious surprise when he learned, during the hearing, that three of the six complainants had broken down in tears as they recounted their experience. In this respect, Mr. Altit stated that he thought these people “were happy to be part of an extraordinary experience”, and stressed that he was in regular communication with Madame Naouri, without her ever having reported any difficulties or alerts in this regard.

The Disciplinary Committee also noted that Mr. Altit had said he was overwhelmed when he learned that he had not been copied on e-mails reporting the transmission of documents outside the team, of which he had no knowledge.

The Disciplinary Committee nevertheless notes a clear discrepancy between Mr. Altit’s perception of the internal workings of his defence team, and the complainants’ testimonies, particularly with regard to workload. For example, Mr. Altit asserted that a person hired on a part-time basis had necessarily worked half-time, an assertion largely contradicted by the statements of several complainants.

Finally, the Disciplinary Committee, perplexed, takes note of the fact that despite the alleged central role played by Mr. Emmanuel Altit in the toxic climate that allegedly reigned in Laurent Gbagbo’s defence team, the latter was not called as a witness by the parties, and although summoned by the Committee, neither the Commissioner nor the Defence attempted to enlighten the Committee as to Mr. Altit’s actual share of responsibility for this toxic climate.

Is Altit to blame? Did he foster and condone those conditions? The Board seemed skeptical that Altit was in the total dark how his second-in-command, the person he put in charge of his team was behaving towards the staff. Or of the working environment. Or of the troubling aspects of how his case and staff were being managed. If so, as Lead Counsel does he not have both the responsibility and authority to ensure that all members of the Defence team were treated with dignity? Or that the working conditions were appropriate? Or that whomever he appointed to act in his stead was competent and considerate, ethical and professional, skillful and resourceful? Can Lead Counsel be absolved of responsibility by delegating authority? Can Lead Counsel avoid accountability if he voluntarily disengaged from his team by solely dealing with his second-in-command, or by turning a blind eye and a deaf ear for plausible deniability?.

Lead Counsel sets the tone, creates the environment, establishes the conditions for the division of labor, the modalities and protocols on how the case will be prepared, the selection of the staff and their interactions, and all the other myriad details that require his attention, oversight, and authorization. If so, does Lead Counsel under the basic principles superior/command responsibility bear some responsibility for any negative, unethical, or inappropriate conduct resulting from the adopted management style? If authority may be delegated, but not responsibility, should the Board have explored these issues as opposed to merely expressed dismay?

Dov Jacobs

It appears that Jacobs, a former law professor at Leiden University Law School from which numerous interns, case managers, and legal assistants have come, never exercised control or supervisory authority over any staff. If memory serves me correctly, however, he has posted recruiting advertisements on social media for the Said case in which he is second-in-command, the number two. If Naouri behaved towards the staff as described by the complainants/victims and as found by the Board, is it possible that Jacobs neither saw nor heard anything? Should he have spoken up if he had seen anything untoward? Is it possible that he was not aware that part-time staff were expected, indeed compelled or browbeaten into working full time and even more under intense or unreasonable conditions?

Jacobs may not be a member of a bar and may not fully appreciate the ethical and professional standards expected of bar qualified counsel, but would he not have nonetheless appreciated the gravity of the harmful treatment of some of the staff? As a former law school professor, Jacobs is well acquainted with the Regulations and University Codes of Conduct those in authority must abide by when dealing with students. The institutional standards of decorum and zero-tolerance policy guidelines for professors at universities are no different than for those in positions of authority at the ICC.

Jacobs claims total ignorance, except in portraying his supervisor Naouri as the victim and Altit as the villain. Understandably, he finds himself in a professionally precarious position. Speaking out may be inconvenient, even professionally risky. It could lead to being demoted or dismissed. But one cannot have it both ways: hold the number two position, recruit staff, and ignore the deplorable treatment of the staff. Such behavior might have gone unchallenged aboard 18th-century as so well depicted in the 1962 film Mutiny on the Bounty. By today’s standards, a second-in-command such as First Lieutenant Fletcher Christian would be expected to caution his superior, Captain William Bligh, and even be required to take steps to ameliorate the abuse and report Captain Bligh to his superiors.

The Board was unconvinced by Jacobs’ testimony. The readers can draw their own conclusions from the Board’s findings. Yet, query, based on what the Board seemed to insinuate, whether Jacobs’ inactions and silence and acquiescence of Naouri’s behavior towards the complainants/victims contributed to the prolonged abuses? The question remains whether there is an obligation to do anything when neither being in authority nor having been entrusted with responsibility? The Board could have offered some insight, even if mere dicta.

Parting thoughts

The purpose of the disciplinary hearings on the complaints filed by staff from both the Gbagbo and the Said cases, was, in part, to examine the facts and to affix responsibility to those in authority and/or in a position to act. Unless we ask difficult questions, however inconvenient the answers may be, there can be little progress in avoiding a reoccurrence of the types of workplace abuses suffered by the complainant/victims in these two cases. In the words of Edmund Burke: Evil prevails when good men fail to act. Or as Albert Einstein put it: Those who have the privilege to know have the duty to act.

Circumstantially, the Registry could not but be aware of the situation in both the Gbagbo and Said cases. It simply took the convenient path of least resistance, of turned a blind eye and a deaf ear to the flashing red lights and searing cautionary sirens of the pervasive workplace harassment in these cases. It chose to do nothing – even after the behavior was formally brought to its attention. This laissez faire attitude by the Registry must stop. Systemic changes are needed.

My views are harsh. They have been informed by what was reported in the media, the Decision, what I have observed, learned, and experienced in leading large, complex cases both domestically and internationally. I offer them having no axe to grind, certainly nothing to gain. If anything, friends, detractors, and the Registry alike will be displeased.

Staying silent was not an option. I recall what it was like to be young and inexperienced and aspiring for an opportunity to learn, grow, and achieve. I have also railed for years on the need for meaningful defence training. It is not enough to get on the List of Counsel. Advocacy and ethics training must be annually mandated to stay on the list. Now we know that it is also important to add defence team management to the training regime, which, in my opinion, continues to be more fluff than substance despite the Registry being on notice of the type of training it should provide (see Part 1 and referenced earlier posts). The Board’s general recommendations which I include at the end of this post should also be seriously considered.

Leading and managing complex cases at any of the international(ized) criminal tribunals and courts is vastly challenging. As I’ve noted, I’m old school. I believe in learning the basics by starting with simple cases, gaining substantial domestic experience, and constantly striving to learn and improve. Those who come with experience have a foundation to build on. Those who have no experience but for whatever reason are selected Lead Counsel or Associate Counsel tend to flounder around. Few are confident enough and wise enough to hire qualified staff that may know more than them, that may have more experience, that may be more capable. That is the exception. Many unqualified and inexperienced counsel who find themselves in positions to lead tend to feel threatened and intimidated by qualified and experienced staff. To compensate for their weaknesses and to avoid their ego being threatened, they resort to hiring inexperienced staff. And when things inevitably start going south, rather than step up and accept responsibility, the staff is blamed and abused.

I am not saying anything that is not known. I just happen to be a bit more outspoken. I find it mind-blowing that anyone without any experience, without having a bar license to practice law, who has had no training in advocacy skills and professional ethics, should be allowed to act as Lead Counsel, Associate Counsel, or have a right of audience in examining witnesses or making submissions at the ICC. You cannot train staff if you have never been trained, never done it (at least properly), don’t know how it should be done, and do not have the humility and self-awareness to know what you don’t know or what you’re supposed to be doing.

Young lawyers and law school graduates and academics with no expertise (lecturing in a classroom or writing in a ivy-covered garret doesn’t count), find my views militant. After all, some of these folks get elected to professional associations, get invites to conferences, attend high-level meet-and-greets at diplomatic and professional functions – so why should they not be qualified to represent accused persons, manage teams, and appear before the Courts? Because they are unqualified. Because the accused’s case is not a moot court exercise. Because at this level of international criminal justice, with the stakes being what they are for all concerned, judges, prosecutors, counsel for accused and victims, should all be sufficiently qualified and experienced.

Winning a popularity contest to the training committee, or to the amicus committee or to the executive board on any of the international defence association is not indicative of skills and experience. Yet, it seems, that this is what some covet as a stepping stone to becoming Lead or Associate Counsel as if through their elected position they can leap-frog the sweat and toil that comes with learning the basics and having a solid foundation of skills and strategic thinking experience and management capabilities in leading a case at the ICC.

So, if my views are harsh and militant, and if I offend the sensibilities of those who think that the young and inexperienced are entitled to hold such positions and be given opportunities to learn on-the-job, as it were, so be it. For well over three decades I have trained countless young lawyers on trial skills and have mentored many interns and members of my Defence teams on all aspects of representing clients charged with crimes and facing the loss of their liberty. I have been known to be strict and demanding, to push participants in skills-training programs. Being in court facing aggressive prosecutors and overbearing judges is not for the faint-hearted. It is not always easy to calibrate criticism perfectly nor to quickly judge the capacity of the participant to take constructive criticism however presented. I’ve always tried to make sure that at the end of the practice session to approach those participants that did not meet their own expectations or thought that the critique was unfair, to comfort them with positive reinforcement. But I also try to listen to their views with an open mind.

The easiest way to strip away passion and confidence and self-worth of young lawyers is to denigrate and insult them, to make them feel or believe that they are nothing, that they are talentless, that they are losers. I recall what it was like to be on the receiving end. Thankfully, in a perverse way, that negative energy and humiliating treatment motivated me to excel, to prove to myself that I had what it took to succeed. I do not advocate the method.  I was lucky. Others were not. Many talented young lawyers gave up on their aspirations of becoming criminal defence lawyers because someone above them incessantly and insensitively bullied and browbeat and berated them.

So I write. If the victims could find the courage to file a complaint and to openly testify at the risk of their future career opportunities, then as someone who has spent the last couple of decades promoting training at the ICC and imploring the Registrar to improve the quality of representation to suspects and accused through training and better remuneration, then the least I can do is to lend my voice, for what it’s worth, in the hope that going forward the culture of abuse for so long tolerated at the ICC will cease. I cannot offer much in a way of solace to the traumatized victims, though through this post, I hope I have offered a safe and embracing harbor for those who wish to continue sailing (and for other young lawyers who aspire to sail) the challenging, adventurous, and rewarding seas of international criminal defence.

Ending, I return to my voice crying in the wilderness refrain: time is running out for the ICC to get its act together. Its prestige is at an all-time low. Hubristically assuming that it can weather these persistent sexual, psychological, and work-related harassment storms without self-reflection and self-correction is delusional. This requires a sincere and embracing appreciation and acknowledgment of internal shortcomings and accountability. A tall but realizable order, dependent on a good-faith effort and a change in the business-as-usual and laissez-faire mentality by those responsible for ensuring the integrity and rectitude of the workplace environment at the ICC.

The Disciplinary Board’s Recommendations to the Registry

• • • The Disciplinary Committee recommends that compulsory, recurrent ethics training be organized by the Court so that Counsel and members of their teams benefit from ongoing training in ethics, in order to avoid deviant behavior towards all actors at the Court.

• • • The Disciplinary Committee recommends that all new participants who are to practice before the Court be solemnly provided with all the ethical documentation required of all those involved in the proceedings, and that they make a public commitment to respect the codes and practices in force before the court.

• • • The Disciplinary Committee recommends that the Registry and the CSS denounce any inappropriate behavior of which they become aware in the course of the practitioners’ activities before the Court. The Disciplinary Committee noted that a number of complainants had alerted either the Registry or the CSS to the working conditions and conduct for which Ms Jennifer Naouri is now being punished. The Disciplinary Committee is surprised that no action has been taken following the complainants’ complaints, either to investigate the matter or to put a stop to the inappropriate behavior complained of.

• • • The Disciplinary Committee recommends that a specific status be reserved for complainants or victims in the Regulations, so that they can be represented on the same footing as the defence and the Commissioner before the disciplinary

• • • The Disciplinary Committee recommends that the sanctions provided for in article 42 of the Code be supplemented by additional penalties not already provided, in particular obligations of care, professional training and compensation for the complainants.

These would be a good start for what will be a long voyage of reform.

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1. Decision on the appeal of Ms Melinda Taylor against the decision of the Disciplinary Board dated 18 April 2024 (SDO-2024-51-DB), para. 47 [↩]