#MeToo reaches ICC in sexual harassment case involving experienced defence counsel

28 February 2018 by Benjamin Duerr, The Hague (The Netherlands)
ICC premises (Photo: Flickr/ICC-CPI)
Image caption: 
ICC premises (Photo: Flickr/ICC-CPI)

A defence counsel at the International Criminal Court has been sanctioned by the court’s disciplinary board for sexually harassing one of his younger, female colleagues. The case exposes the lack of rules about sexual harassment for defence lawyers at the ICC. As the #MeToo debate reaches the international courts, prominent defence lawyers are campaigning for stronger regulations.

The Lösch Pfälzer Hof is a typical German hotel outside the sleepy town of Germersheim, situated in an idyllic scenery with lakes and forest. It is at this hotel where it became clear that the on-going debate about sexual harassment and abuse is not limited to Hollywood, American politics and British charities, but that it stretches out to the international courts. The misconduct of a defence counsel practicing before the International Criminal Court (ICC) in The Hague has exposed a lack of rules and awareness and has sparked a debate about sexual harassment at the court.

The case involves defence counsel Paul Djunga and a younger, female case manager who were planning to meet a witness in Germany. The two lawyers working for the defence on the bribery case against an ally of the former Congolese vice-president Jean-Pierre Bemba, arrived at the hotel in Germersheim on a Sunday night in early September 2014, according to a document by the ICC’s Disciplinary Board dated September 2017 and classified as public. Djunga did not respond to questions posed in an email by International Justice Tribune.

After their arrival at the hotel, the defence counsel suggested they get a take-away dinner at a Chinese restaurant which they could eat in the room of the case manager - because her room was bigger. The case manager started to feel uncomfortable. Already on the way from The Hague to Germersheim, Djunga had lit a cigarette, saying “C’est la cigarette que j’allume pas toi“ - a French expression implying a sexual undertone, similar to “lighting someone up“ in English. Later he added: “Missions bring people closer together.”

Now, in her hotel room, according to the woman, Djunga got his pyjamas, stretched out on the bed of the room that was initially occupied by the case manager and took off his shirt. When she explained she would prefer to sleep in the other room, the counsel said: “It’s fine, we’ll get to know each other better, don’t feel embarrassed.”

She went to the bathroom, made calls to tell others about her situation, she returned and told the lawyer she was leaving. When he insisted that she remain and lay down on the bed with him, she left the room in panic. As nobody was at the reception, she ran outside and hid behind a car. WhatsApp conversations with others provided a real-time chronology of the events. “I’m scared outside,“ she messaged 20 minutes past midnight to another person. At around the same time an unknown hotel guest called a staff member of the hotel. The personnel helped the case manager to get to the train station where she took the first train to The Hague at 4.09 in the morning.

In The Hague, the case went to the ICC’s Disciplinary Board which organized hearings at the end of March and in September 2017, more than 2.5 years after the incident.

At the September hearing, the three members of the Disciplinary Board ruled that the behaviour of the defence counsel “constitutes professional misconduct” and decided “to impose (...) the disciplinary sanction of public reprimand, to be entered into the counsel’s personal file.”

During the disciplinary hearing, the lawyer representing Djunga argued that there was a conspiracy to have him removed from the Bemba et.al. case. Moreover, the lawyer said, the women “was an assertive individual, fully in control of the organization of the mission,” implying the younger female lawyer should have just asserted herself against the more experienced team leader. The Disciplinary Board rejected this argument. At the hearing in September, Djunga expressed remorse and acknowledged that perhaps he should not have acted as he did.

The incident within the defence team of the Bemba et.al. contempt case highlights the broader issue of sexual harassment and abuse that is causing debates under the broad #MeToo label. In the film and entertainment industry, in politics and most recently in the humanitarian sector, revelations of sexual abuse and inappropriate behaviour of mainly men in power positions have led to outrage worldwide.

In the past, the ICC has seen other allegations of grave sexual misconduct. In 2008, then chief prosecutor Luis Moreno Ocampo was accused of having forced a journalist in South Africa to sleep with him. The allegations were not substantiated, but the handling of the case attracted sharp criticism. The prosecutor simply fired the whistleblower - a member of his team.

In 2013, allegations surfaced that an ICC staff member had sexually assaulted four individuals who were under the court’s protection program in Congo. Other staff members in DRC also engaged in what was called “likely inappropriate conduct.“ Several staff were sanctioned or dismissed and an independent expert panel identified operational and organizational shortcomings at the ICC, such as failures to carry out supervisory and oversight duties.

The most recent case involving a defence counsel highlights that these structural problems have not been resolved completely. The revelations of sexual harassment in the Bemba et.al. bribery case “decry [a] gap in legal regulation as concerns sexual harassment and abuse in legal teams,” defence counsel Melinda Taylor tweeted. At the ICC, defence lawyers are not employed by the court but work independently. Their behaviour is governed by the Code of Professional Conduct for counsel which does not specifically cover harassment and abuse of team members. It mainly contains provisions on the counsel’s relationship with witnesses, victims and clients, such as Article 9(4) prohibiting “any improper conduct, such as demanding sexual relations, coercion, intimidation (...) in his or her relations with a client,” but not with each other.

The ICC’s own “Administrative Instruction on Sexual and Other Forms of Harassment” and other staff regulations for ICC employees do not apply to counsel because they are independent.

The president of the ICC Bar Association (ICCBA), Karim Khan, has confirmed to Ms Taylor that a Working Group on harassment was set up in 2017, in response to her letter stating that “it is imperative that this gap is filled, as a matter of urgency.” Binding regulations, including rules on sexual harassment and abuse, in order to protect everyone on the teams for the defence and victims’ representation are up for consideration.  

A growing group of prominent lawyers including Karim Khan, Melinda Taylor and Peter Robinson have declared in the last days that they will follow the ICC’s Administrative Instruction on a voluntary basis.

Still, the case highlights the need within the legal profession to adopt and apply stricter rules to prevent and punish sexual harassment and abuse.

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