Gaelle Carayon is the ICC Legal Officer at REDRESS. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.  

One of the most unique and innovative attributes of the Rome Statute is the ability of victims to be able to participate in all stages of proceedings. However, despite the provisions that allow for victim participation, there are serious concerns about how these are being implemented, especially when it comes to victim representation before the International Criminal Court (ICC).  This is why last November my organization, REDRESS, convened a seminar in The Hague in which counsel for victims, intermediaries, representatives of the Registry, and others were invited to exchange their views on the current system of legal representation for victims. During discussions, it emerged that victims in cases before the ICC have had in most cases little or no say about the counsel representing them. This article discusses the main findings of the seminar and additional research carried out by REDRESS, available in a new report, Representation of Victims before the ICC, which will be presented in The Hague this Wednesday.

One of the fundamental problems exposed in the report relates to the appointment of common legal representatives of victims (CLRV), who are lawyers appointed by the court when practical, financial, or other constraints dictate the need for the court to do so. Common legal representation has been mandated in all cases that have proceeded to trial before the ICC.

A review of these appointments shows that most have been made by chambers or the Registry, usually without giving victims an opportunity to make a choice for themselves. Rule 90 of the Rules of Procedure and Evidence of the court foresees that victims should first be asked to choose a common legal representative, if necessary with the assistance of the Registry. It is only when victims fail to choose a legal representative that the chamber can ask the Registrar to appoint one for them. In practice, however, resource and time constraints have been advanced by the Registrar to justify the failure to consult with victims on their choice of counsel. For example, at the pre-trial phase of the William Ruto et al. case, the single judge instructed the Victim Participation and Reparation Section of the Registry (VPRS) to take steps to organize common legal representation ahead of the confirmation of charges hearing. However, the Registry later informed the chamber that it had only conducted limited consultations with victims due to resource and workload constraints and selected a common legal representative relying on views expressed by some victims during earlier stages of the proceedings.  The chamber endorsed the Registry’s choice without inquiring into whether victims had been given a genuine opportunity to choose counsel themselves.

Another major problem identified in the report is the increasing use of Regulation 80 by chambers and single judges to appoint counsel. This regulation provides that “where the interests of justice so require” a chamber may on its own motion appoint a legal representative, giving judges broad discretion to decide in which circumstances they should take over the appointment of counsel. A key issue with this appointment mechanism is that they are not susceptible to challenge: no review or appeal mechanism exists. Thus, it should only be used as a last option.

While timeliness might justify an appointment under Regulation 80, a careful review of the decisions appointing counsel under this provision fails to show a consistent interpretation by the various chambers of the circumstances that warrant its application. In some cases, chambers have appointed counsel without referring to Regulation 80 and only made that reference when a challenge to the appointment was introduced. For example, it only became clear that one counsel had been appointed under Regulation 80 at the pre-trial stage of the Ruto et al. case when some victims attempted to challenge that appointment.

While there may be limitations to involving large number of victims fully in the direct selection of a common legal representative, more could be done to involve victims and to ensure that they understand the process. In addition, a number of further issues have arisen in practice, including the lack of transparency in the criteria applied to select counsel, and in some cases, the change of counsel throughout the proceedings for reasons that are not a result of a challenge brought by victims or a consequence of poor performance. For example, in the Kenya cases, Pre-Trial Chamber II indicated that continuity of legal representation was not per se a key factor in the choice of a legal representative and appointed a new counsel. That counsel was then replaced about a year and half later when the case moved to trial, following a decision by the majority of Trial Chamber V that an essential criterion for legal representation would be the ability of counsel to be based in Kenya.

In some cases, victims have not been properly informed when a new counsel was appointed. Intermediaries have stressed that the appointment of the Office of Public Counsel for Victims as common legal representative in the Charles Ble Goude case came as a shock for some victims and those working with them who only learned of the appointment when watching the proceedings on television. Similar concerns were expressed in the case of Bosco Ntaganda.

It is also incredibly difficult for victims to challenge the appointment of counsel, including when appointed by the Registrar. A limited review mechanism exists under Regulation 79(3) of the Regulations of the Court, but in practice it is seldom used or known by victims. Judges reviewing such appointments have limited themselves to scrutinize only whether “all reasonable steps to ensure that the distinct interests of the victims are represented and any conflict of interest is avoided.” REDRESS advances that victims should be able to seek a review of the process that led to the appointment, the criteria used to make that choice, as well as the ultimate choice made by the Registry as to the specific counsel to be appointed.

Right now is a key moment for the court to develop a better functioning system when it comes to representing victims’ interests. There are ongoing reviews both within the Registry (the Registrar has formulated proposals to streamline the work of his office, including the creation of a single victims’ office and the strengthening of field functions) and amongst judges (a group of judges is considering ways to improve the Court’s judicial processes). It is time for the court to take a closer look at how such reviews could go beyond internal efficiency to achieve better delivery of the court’s victims’ mandate, from the victims’ perspective. Among the recommendations set out in the REDRESS report is a call for the Registry to develop a policy document on victims’ legal representation that sets out how the Registry will implement its mandate to assist victims’ in choosing a counsel.

Finally, more needs to be done to ensure quality and effective representation for victims. In a recent filing in the Dominic Ongwen case, a Uganda based network of victims’ organizations alleged that counsel was not meeting victims’ expectations. REDRESS is particularly concerned about reports that some victims have never or rarely met with their lawyer. While the reasons for victims’ dissatisfaction may be beyond counsel’s control, such as the practical challenges to consult thousands of victims and inadequate resources or support in the field, it is necessary to develop a clear framework for what quality or effective representation of victims before the ICC entails. The Registry should work together with the counsel community in that regard while at the same time providing lawyers the support they need to better serve the needs of their clients.

Judges and the Registry should continue to consult with counsel, victims, and other relevant stakeholders working closely with victims to strengthen the quality of legal representation and to ensure victims’ authority in designating their representation. The court should ensure that its processes empower victims and give them sufficient agency in the exercise of their rights, including their undeniable and legitimate right to choose who best represents their interests.