Legal Representatives Submission July2009[1]

THE ORGANISATION OF LEGAL REPRESENTATION LEGAL AID AND THE OPCV : COUNSELS’ EXPERIENCE

1. Principles Under Rule 90.1, the basic principle as adopted by States provides that “a victim shall be free to choose a legal representative”. Paragraph 2 of the same Rule brings a nuance to this principle, stating that the Chamber may request that victims organise a system of common representation in order to facilitate the coordination of victim representation. This principle is based not on reasons of economy, but to ensure the effectiveness of the proceedings. An Office of Public Counsel for Victims was established under Regulation 81 of the Regulations of the Court; the function of this Office is determined under point 4 of this Regulation, which provides that the Office “shall provide support and assistance to the legal representative for victims and to victims, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues” However, Regulation 80.2 states that the OPCV can itself be appointed legal representative of victims by the Chamber.

2. The OPCV in The Prosecutor v. Thomas Lubanga Dyilo proceedings

Legal representatives before the Pre-Trial Chamber in the Lubanga case benefited from extremely precious assistance from the OPCV. During the confirmation of charges hearing, the Office provided counsel with daily hearing analyses, served as de facto case manager for the two teams of legal representatives, and spontaneously provided legal advice on all points of law raised during hearing discussions. During the course of the entire preparatory phase, two to three members of the Office were present at each hearing in order to provide assistance to legal representatives, who regularly gave the Office mandate to represent them at status conferences.

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In its decision dated 6th of March 20061, the Chamber deemed that, “during this early stage in the Court's existence it is critical that the Office concentrates its limited resources on the core functions given to it under the Rome Statute framework which, as set out above, is to provide support and assistance to the legal representatives of victims and to victims who have applied to participate (rather than representing individual victims)”. The Chamber consequently decided that “As regards those victim applicants currently represented by the Office of Public Counsel for Victims, the Office shall continue to represent them until the Chamber issues a decision on their application to participate. Thereafter, the Registrar shall arrange for a legal representative to act for them, […]”. Legal representatives have supported this approach. It has not been possible to fully implement this decision however, due to the fact that authorisation to participate in proceedings was granted to the majority of victims only a few weeks before the opening of the trial; this notably resulted in a problem for four victims represented by the OPCV and who were to appear as witnesses in the first weeks of trial. Exceptionally, the Chamber therefore maintained the appointment of the Office as counsel for the entire course of the proceedings for these victims, but invited four other victims, who they themselves were not to testify, to choose between the already constituted teams of legal representatives. This decision was carried out without a problem. Although this decision was taken in agreement with the legal representatives, it changed the relationship between them and the OPCV. The Office now functions as an independent team, alongside the two teams of independent counsel. These teams are both represented by a single counsel each at hearings (the different team counsel each participate in turn according to a rotation scheme) and assisted by a case manager. The OPCV is generally represented at hearings by a lead counsel and two assistant counsels, and is supported by a case manager. There is therefore a disproportion between the independent legal representatives and the OPCV, who benefits from (much) more important means to represent only 3% of the total number of victims. Certainly, the two OPCV legal assistants following the hearings are in principle available to all counsel. As the Registry’s report underlines, the means made available to legal representatives take into account the fact that counsel benefit from support from the OPCV for research and drafting legal briefs. In practice however, these OPCV members now constitute with the lead counsel a third team of legal representatives. The Office no longer shares with the other teams the hearing analyses undertaken by its legal assistants. It no longer spontaneously provides legal representatives with legal advice but only does so when a legal representative formally requests it in writing. 1

ICC-01/04-01/06-1211

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This situation has also resulted in a different relationship between legal representatives and the OPCV when it comes to taking a position on issues of common interest. Each team of counsels can have its own judicial strategy and its own interpretation of certain legal questions, and this even in the absence of a formal conflict of interest. In the past, legal representatives had the possibility of freely using the legal advice issued by the Office in order to independently draft their own submissions, and where appropriate, a common submission for all teams. The Office generally submits the position that it feels is the most legally correct, while legal representatives largely analyse available elements of law according to the interests they represent. Certain submissions filed by legal representatives could therefore develop arguments that were not those of the OPCV. This particular function of the Office as “neutral expert at the disposal of legal representatives” is today under pressure. Its analyses on questions of common interest now constitute the position of one of the three teams. In the event of disagreement between the Office and one or more of the other teams of counsel, it is difficult to request that the Office carry out research that will be used to support a position that is not its own. However, it has happened that the Chamber follow a common position issued by legal representatives and to which the Office had initially been opposed. The assignment to the OPCV of a role of “team of legal representatives” has thereby reduced its availability to the other teams and imposes on the latter a heavier workload in terms of legal analysis and drafting of documents. There is a real risk of seeing a spirit of competition develop between the Office and independent counsel. In the Lubanga case, legal representation of victims could therefore have been organised in a more efficient manner, under a system whereby all victims would have been represented by the two teams of independent counsel, the latter being supported by the four members of the OPCV currently working on the case. Legal representatives of victims in the “Katanga/Ngudjolo” case have mentioned that subsequent to an indication by Pre-Trial Chamber 2, whereby the OPCV’s role during the confirmation of charges hearing of the case should be limited to “support to counsel outside of the courtroom”, the Office reduced its availability to the legal representatives. The Office declared that it no longer had French-speaking staff to make available to the legal representatives as this staff was already assigned to the Lubanga case. In a case such as “Katanga/Ngudjolo”, where there are clear conflicts of interest between the victims (ex. Katanga), having an Office who has to support all counsel teams, and at the same time represent victims whose interests are in opposition to those of victims represented by the other teams, would be even more problematic. 3

3. Independent counsel In the Lubanga case, the majority of victims who applied to participate in proceedings or for reparation approached external counsel, often through the intermediary of a local or international NGO. Only in a minority of cases did victims find their way to the Court via outreach activities organised on the ground by the Registry. Over the course of months and years, victims have built a relationship of trust with their counsel. It is clear that this was easier for victims to do with a counsel of their own country, of their own region even, and who preferably speaks their own language. With one exception, victims were admitted to legal aid but a short time before the opening of the trial. More months, even years, their counsel worked pro bono and/or assisted by an NGO. In the Lubanga case, legal representatives were able to obtain a number of precedents which were not a foregone conclusion: ­ possibility for vulnerable victims to participate in proceedings under anonymity ­ possibility to question witnesses and to submit evidence during the hearing of a witness. ­ possibility to question context witnesses in the same conditions as the parties ­ possibility to have victims personally testify ­ possibility to educe elements of sexual slavery through precise questions to girl witnesses and submissions addressing the issue of an possible requalification ­ communication in advance of documents produced by the OTP and the Defence, to victims ­ appointment by the Chamber of an expert suggested by the victims following the filing of observations on a point of fact (the practice of names in the DRC) ­ provision of elements of Congolese law during confirmation of charges proceedings… Without underestimating the input of the OPCV, notably its legal research work, it can be said that the intervention of independent counsel has each time been decisive. In the Katanga case, independent counsel have also brought forth important elements of Congolese law in the debate on admissibility.

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4. Suggestions and recommendations Legal representatives believe that the “mixed” solution (OPCV as legal representative alongside teams of independent counsel) exceptionally applied to the Lubanga case is far from constituting a “model” for trial proceedings, and that OPCV intervention during the entire course of a trial is counterproductive. Decisions on applications for participation in proceedings and on the organisation of a common legal representation should be taken by the Chambers as soon as possible, before the confirmation of charges hearing or at least a number of months before the start of the trial, so that the different lawyers composing a given team can get accustomed to collaborating, have time to coordinate and to familiarize themselves with all the victims represented by the team. If the OPCV does ensure the representation of victims in debates on admissibility of these requests, it should on the outset inform the victims of their right to an independent counsel as soon as their request is accepted. During the confirmation of charges hearing and during the trial, it is primordial that counsel can independently elaborate a judicial strategy in coordination with their clients and within their respective teams. it is just as important that counsel can count on effective support on the part of the OPCV , not only for research and legal advice, but also to represent them during the numerous status conferences which usually last only one or two days. Good collaboration and a relation of trust between legal representatives and the OPCV should enable counsel to avoid having to travel to The Hague for a large number of status conferences. By representing a counsel, the Office must follow the latter’s instructions and draft a report of its intervention. Total internalisation of legal aid to victims could moreover result in a sharp decrease in the number of victims who find their way to the Court. The Office would find it more challenging than for independent counsel to maintain contact with all the victims, and would have to devote more resources to this. There is a risk that victim representation would evolve towards a situation which could be compared to one of an “amicus curiae”, instead of enabling victims to intervene in proceedings, which was the aim of Article 68 of the Statute. This could cause frustration among the majority of victims who contacted a lawyer in view of an intervention before the ICC, and who have built a relationship of trust with that lawyer. Communication with the victims on the ground and representation at hearings are the “strong points” of independent counsel. The Office, however, shall always be stronger than counsel where management of legal information and of research tools 5

is concerned. The two are therefore very complementary. Valorisation of the role of the Office as support to legal representatives could improve victim representation as a whole. The OPCV could notably play a more important role as “collective memory” of victims, compared to legal representatives who come to The Hague for each case and then go, but also because it holds the information and the memory of what is happening in the other cases.

The Hague, 6 July 2009

Luc Walleyn Hervé Diakiese Jean Mulamba Franck Mulenda Carine Bapita Paul Kabongo Joseph Keta Fidel Nsita Flora Mbuyu

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