Probationary performance report

After using the competencies model to frame the performance meeting, the supervisor will finally ‘complete the [lawyer’s] performance report and submit it to the reviewer’.816

811 _{M. Strathern, ‘Bullet-Proofing’, 181.}

812 _{D. Brenneis, ‘Reforming Promise’, 41, 64. According to Klikauer, ‘[i]n managerially distorted communication,}

nouns govern sentences in an authoritarian and totalitarian fashion’, T. Klikauer, A Critique of an Ideology (Palgrave 2013) 122.

813 _{On similar linguistic dynamics, see Bourdieu, ‘The Force of Law’, 820. The ‘violence’ of management-speak}

is explicated in F. Moretti and D. Pestre, ‘Bankspeak: The Language of World Bank Reports’ (2015) 92 New Left

Review 75, 80.

814 _{Competencies Model, 17.} 815 _{Competencies Model, 23.}

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According to the Administrative Instruction, the probationary performance report (PPR) is the repository for all appraisal information. It supplies a ‘record of the immediate supervisor’s assessment of the ability of the staff member to perform his or her duties, as well as of his or her suitability to work with the Court’.817 Upon the supervisor’s completion of the PPR, the lawyer will be given the opportunity to add their comments before both the PPR and comments are submitted to the reviewer for their signature and final appointment subject to the Prosecutor’s confirmation.

In the event that the supervisor is unsatisfied with the lawyer’s performance after the first appraisal, the supervisor ‘shall record in the [PPR] the ways and means suggested for the improvement of the staff member’s performance’.818 If there is no improvement by the end of the probationary period, the supervisor may decide either not to confirm the appointment or, if the lawyer ‘has the potential to perform adequately if given more time in the job’, the supervisor may request the Prosecutor for an extension of the probationary period for up to six months.819 At the end of that extension, the lawyer will either be confirmed in their post or not.

The PPR’s power to determine whether the professional will continue in their post gives the report considerable weight. Yet judging by the late and patchy implementation of the probationary system throughout the court’s organs, the power of the probationary process to remove inefficient individuals is not borne out statistically.820 Rather, the PPR exemplifies the court’s power to record, classify, rate, and improve the professional as an efficient, managerial subject. Like the competencies model, this power lies both in the content and form of the PPR. The PPR is a four-page form.821 _{It requires the supervisor to disclose details and ratings}

about the performance of their appraisee, the lawyer. These data include in Part I personal information about the appraisee: their name, functional title and level, unit and organ, and relevant appointment dates. The remainder of the form is divided into a series of tables designed to guide the supervisor to a comprehensive evaluation of the appraisee’s performance. These tables detail ‘performance objectives’, ‘core competencies appraisal’, ‘summary performance

817 _{AI Probationary Period, para. 4.2.} 818 _{AI Probationary Period, para. 8.2(g).} 819 _{AI Probationary Period, para. 5.1.}

820 _{The performance appraisal system framework was implemented systematically after 2010, when the CBF}

recommended that ‘the generic appraisal criteria be more broadly circulated, that systems be reinforced to ensure consistent and uniform application of the appraisal system throughout the Court, that the appraisal review process be reinforced and that appraisals be further linked to the strategic objectives and the contract renewal process’, ICC, Report of the CBF on the Work of its 14th _{Session, ICC-ASP/9/5, 6 July 2010, para. 63. In 2016/17, the most}

recent cycle for which figures are available, the completion rate for the performance appraisal system was 92 percent, ICC, Report of the Court on Human Resources Management, ICC-ASP/17/6, 11 May 2018, para. 95.

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rating’, ‘comments by the staff member’, ‘recommendation’, and ‘decision by Registrar/Prosecutor’ (see Appendix C). Most of these tables are filled with boxes which the supervisor must tick based on the appropriate rating. The first set of boxes relate to the ‘performance objectives’ set at the beginning of the probationary period and monitored during the performance appraisal meeting. Space is created for the supervisor to list up to five objectives. By the end of the probationary period, the supervisor will decide whether the appraisee’s ‘progress towards, or achievement of, [the] objective at [the] time of appraisal’ was either ‘satisfactory’ or ‘unsatisfactory’ (see fig. 9). If performance is unsatisfactory, the supervisor is required to ‘give full particulars’ in an extended probation report.822

The next section is designed to assess the appraisee’s compliance with ‘the most relevant competencies’. The supervisor and appraisee would have decided which of the competencies to focus on at the beginning of the probationary period. Again, the supervisor will rate the appraisee’s achievement of the selected competencies by ticking either the ‘satisfactory’ or ‘unsatisfactory’ box. The following section captures the ‘summary performance rating’ as a final determination on the appraisee’s performance. This, too, distinguishes between satisfactory and unsatisfactory ratings which the supervisor must tick (see fig. 10). The

822 _{The sections contained in the extended probationary report include ‘comments by the staff member’,}

‘recommendation’, ‘decision by Registrar/Prosecutor’, and ‘description of unsatisfactory performance’.

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supervisor, appraisee, and reviewer must then sign and date the form. The signatures of the appraisee and the reviewer affirm that they ‘have seen the appraisal of the immediate supervisor and [were] afforded an opportunity to provide comments’.

As this process suggests, the PPR demands significant time and attention from various institutional actors. Yet despite the apparently wide discretion of the supervisor to rate the appraisee’s performance, the PPR requires that the supervisor produce a particular kind of managerial view of the appraisee. It principally reinforces the technocratic assumptions on which contemporary ICJ operates by focusing on ‘minute organisational procedures’ and the optimisation of professional experts.823 The axis is one of satisfactory or unsatisfactory performance according to such standards (fig. 11). The satisfactory performance of individual objectives and the achievement of individualised competencies becomes the definition of professional and institutional success. Likewise, unsatisfactory performance of the individual is viewed as a major institutional flaw. As such, the institution itself must continue to devote resources to the optimisation of its professional staff if it is to remain an effective response to global injustice. The form thus reinscribes technocratic ICJ by affirming the centrality of its professional experts and the need to gradually improve their individual performance.

823 _{B. Townley, ‘Performance Appraisal and the Emergence of Management’, in C. Grey and H. Willmott (eds),}

Critical Management Studies: A Reader (OUP 2005) 304, 310.

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The PPR’s format and layout also affirms the limited discursive space in which the court’s actors must operate to reproduce a managerial reality.824 The form is not a timeless and static document, but ‘is created in anticipation of being filled in’.825 _{It is an interactive medium,}

which arranges institutional actors around it and disposes of those actors in particular ways.826

Within the court, the PPR creates a range of characters in the form of appraiser, appraisee, and reviewer. It demands the engagement of all three characters, especially the appraiser, whose job it is to complete the bulk of the form by ticking boxes and disclosing details of appraisee underperformance.827 _{Thus, while the form is ‘necessarily interactive’, it is determinative of a}

small number of outcomes, all of which will reaffirm the court’s managerial credentials: either by identifying the appraisee as an efficient professional or as an inefficient professional requiring optimisation. The form becomes a highly regulated channel for the institutionalisation of knowledge and the representation of all staff in managerial terms.

The limited space for engagement is embedded in the form’s signs and symbols. All the form requires in order to take on the quality of an official record is for the supervisor to place a series of ticks in the pages of boxes already provided.828 The need for minimal interaction is apparent in how completely the blank form dominates the page: even when the form has yet to be filled out, the page is almost entirely blackened by lines and text. Once the

824 _{M. Hull, ‘Documents and Bureaucracy’ (2012) 41 Annual Review of Anthropology 251, 253.}

825 _{D. Frohlich, ‘On the Organisation of Form-Filling Behaviour’ (1986) 5 Information Design Journal 43, 43.} 826 _{M. Hull, Government of Paper: The Materiality of Bureaucracy in Urban Pakistan (University of California}

Press 2012) 134. See also L. Lowenkron and L. Ferreira, ‘Anthropological Perspectives on Documents: Ethnographic Dialogues on the Trail of Police Papers’ (2014) 11 Vibrant: Virtual Brazilian Anthropology 76, 83.

827 _{Riles, ‘Introduction: A Response’, in Riles, Documents, 19.} 828 _{D. Brenneis, ‘Reforming Promise’, in Riles, Documents, 47–8.}

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form is completed, the page looks little different. The form of the PPR, then, blends with its substance as it creates an enclosed site for the official inscription of the appraisee’s identity. Like the competencies model, the PPR’s bureaucratic paraphernalia and voice guarantee its status as purveyor of professional truth. It bears the ICC’s crest on the top of the first page as a reminder that the data produced about the professional is the only data that has been officially verified. It is also a reminder that the data, in being produced by the institution, rather than individual actors, has an objective and scientific quality.829

The numerous instances of personal engagement with the form appear not to dampen its claim to capture the appraisee’s objective essence. For example, to notice the individual ticks in the form’s boxes is to appreciate that the determinations recorded therein are less scientific fact than opinion. Similarly, the signatures on the last page of the PPR recall the historically situated nature of the ‘facts’ recounted in the form, exposing it, even momentarily, as an assorted collection of individual views. Despite these interventions, the form reasserts the depersonalised voice of the institution when requiring the appraisee to sign the disclaimer that they have read the form and had an opportunity to comment on it. Should the appraisee disagree with the supervisor’s findings, these will be captured by the form as individual criticisms.830 The institutional voice thus raises the supervisor’s views to the level of official truth while simultaneously labelling the appraisee’s views as personal.

By the time the PPR is submitted to the HR Section to be placed in the lawyer’s official file, the lawyer will have moved through a network of meetings, models, reports, and forms. Having gone into the probationary process with some understanding of performance expectations, they will come out the other end as a managerial subject committed to the efficiency and effectiveness of the ICC.831 This identity is not just a feeling, but an officially authorised subjectivity contained in the court’s managerial documents as a true and objective account of the professional self.

829 _{Deetz, Democracy in an Age of Corporate Colonization, 281.}

830 _{Klikauer notes the tendency of managerialism to create and contain its own contradictions, Klikauer,}

Managerialism, 124.

831 _{One ICC official stated that ‘performance management is part of our culture now’, ICC Interview 1, 11 July}

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