For the first time in history, the Rome Statute that created the ICC – tasked with prosecuting the most severe international crimes, such as genocide, war crimes and crimes against humanity – placed victims’ interests at the heart of proceedings.
The Rome Statute recognised that victims had the right to participate in all stages of the proceedings and should have their views and concerns presented and considered when their “personal interests” were affected. Behind the ability for victims to have their voices heard lays the notion that the ICC can, and should, deliver a justice that is reparative to victims and, ultimately assist in restoring their dignity. However, in practice, many obstacles remain that prevent victims from being empowered through the participation process. Below are some of the findings of a new report published by REDRESS, Representing victims before the ICC, which was also the focus of a recent Supranational Criminal Law lecture that it held at the Asser Institute in The Hague in conjunction with the Coalition for the International Criminal Court.
One of the main problems highlighted in the report is the extensive use of common legal representation of victims (CLRV) at the ICC and the process leading to the appointment of such common representatives. This is when a single or sometimes two lawyers are appointed to represent all victims in a case. It is usually done when practical, financial or other constraints dictate this need and has been mandated in all cases that have proceeded to trial so far before the ICC. An analysis of these appointments shows that, in most cases, they have been made by the chambers or the Registry, following a process during which victims had not been given a real opportunity to choose for themselves. This is despite the fact that, according to Rule 90 of the Rules of Procedure and Evidence, victims should be free to choose who will represent them and, when common legal representation is warranted, should be provided first with an opportunity to choose for themselves the counsel that will represent them all.
The Registrar has justified bypassing that process by citing resource and time constraints, but one wonders if more could and should be done when victims are being left out of the decision-making process in something as critical as their choice of counsel. One of the recommendations of the REDRESS report is that the Registry develops a policy document on victims’ legal representation that sets out how the Registry will implement its mandate to assist victims in choosing a counsel.
A number of further issues are identified in the report, including the lack of clarity in the criteria applied to select counsel and instances where victims have not been informed properly about the counsel representing them. In the Charles Ble Goude case, for example, some victims were shocked to learn that a new counsel had been appointed when they were watching the proceedings on television. Similar concerns were expressed in the case of Bosco Ntaganda.
Although it may be difficult to consult with all victims on the matter of legal representation when there is a great number of them, it remains important to take measures to ensure that victims understand the process and that they are involved. This is especially important since victims cannot often effectively challenge the appointment of a counsel. Although there exists a review mechanism under Regulation 79(3) of the Regulations of the Court, this is rarely used by the victims because they are not made aware of this possibility.
Another important finding from the report is that there are limited avenues for victims to complain about the quality of the representation they receive from court appointed lawyers. Part of the problem in that respect is the lack of common understanding as to what quality representation should look like. Representing large numbers of victims, many of them vulnerable, in international proceedings is likely to be new to many lawyers, even if they possess the requirement to practice before the ICC. In turn, many victims will not have had prior experience of a relationship with a lawyer and as a result may not be clear as to what they should expect from them.
Recently, the Registry was asked twice by Chambers to consult victims to assess whether they were satisfied with the lawyer appointed at the Pre Trial stage, and whether that counsel should continue the representation at trial. The results submitted by the Registry are quite telling: Over 80% of the victims consulted were satisfied with their counsel; however victims also indicated that they did not really have enough information to make an informed assessment of whether their counsel’s performance was adequate. REDRESS recommends that the Registry and judges work together with counsels, victims and other relevant parties to improve the quality of legal representation, and consider developing a clear framework for what quality or effective representation of victims before the ICC entails.
During the lecture that REDRESS chaired in The Hague on the 10th of June, the matter of the legal representation of victims was discussed further.
Fiona McKay, Chief of the ICC Victims Participation and Reparation Section, highlighted that victims wanted to be treated as individuals and not as another case file to be solved. As a result, she advanced, lawyers should possess the soft skills required to work with victims. Another speaker, Fidel Nsita, who represents victims in the Germain Katanga case, explained that victim participation was somewhat new for some lawyers and judges at the ICC and that there was sometimes a need to reassure them that victims’ lawyers are not a second prosecutor, that they fulfil different roles and sometimes pursue different objectives. Another concern, voiced by Jean Philippe Kot, from Avocats Sans Frontieres, was the lack of guidelines at the ICC on the meaning of quality representation. This concern was echoed by the other participants who called for a clearer framework.
One thing was clear: the time has come for an improvement in the legal representation of victims. The reviews currently underway within different organs of the court, including the Registry and amongst judges, to improve the current system offer a unique opportunity to consider new ways that can result in a better delivery of the court’s victims’ mandate, from the victims’ perspective. The Court needs to remove the obstacles that are preventing it from realising the Rome Statute’s vision of justice, where victims of the gravest crimes at last are heard and empowered through their participation in the proceedings.
Gaelle Carayon is a legal officer for REDRESS.