11 August 2009
On 22 July 2009, Trial Chamber II defined the modalities of the common legal representation of victims in the Katanga/Ngudjolo case. The Chamber has divided victims into two groups: the first group includes all victims except for child soldiers, and the second group includes the latter. Judges have decided that the victims will be represented by one common legal representative (who will choose an assistant) except for the child soldiers who will appoint a separate counsel.
In addition, Judges have explained that if any disagreements should arise between victims during the proceedings, the counsel would have to represent the divergent positions in an equitable fashion, but in the case where a conflict of interest develops, the Chamber shall take appropriate measures. Specifically, the Chamber could appoint the Office of Public Counsel for Victims (OPCV) to represent one of the conflicting groups of victims. Finally, the Registrar has received the order to propose a structure of assistance, in coordination with the common legal representation, so that he can effectively accomplish his duties.
This type of common legal representation is different from the one set out in the Thomas Lubanga case. The facts and the situations of the victims in both cases are different; it is thus understandable that the Judges have not reproduced the same legal representation system as in the Lubanga case. However the system adopted by the Judges is very restrictive and practical problems could arise during its implementation. One can only hope that certain aspects of the chosen solution - which is adapted to the specific characteristics of this case and could generate certain concerns - will not be interpreted as being a general precedent.
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| Uncertainty as to the justification of the order and victims’ freedom of choice
The Judges have justified their approach for reasons of procedural efficiency, arguing that victims’ participation should not harm the rights of the accused. However, can these demands justify such a restrictive common legal representation system? The Chamber has not made any reference to financial constraints related to legal aid, and it is true that such a basis is not clearly established in Regulation 90(2). In any case, victims are free to exercise their right to freely choose their legal representatives (Regulation 90(1)) when they are not financed by the Court’s legal aid system.
OPCV’s potential role
Questions also arise as to the possibility of the Judges to appoint the OPCV to represent victims in the case of a conflict of interest between the different victims represented by single counsel. At the heart of current debates, one principal concern relates to the possibility of a conflict of interest which could appear between the OPCV’s role in being a legal representative of victims and its principal mandate of assistance and support to legal representatives. In the present case, the OPCV could have difficulties in assisting the common legal representative because the latter would represent a group that would have a conflict of interest with the group represented by the Office.
Practical difficulties
Finally, practical difficulties can occur in the implementation of this order. Concerning victims’ files, different legal representatives are working on them until a common legal representative is appointed and files are transferred to the latter. From a practical perspective, it will be a long and difficult process for the single counsel and his assistant to have a good understanding of the files, adding to this the fact that the case is in reality a joining of two cases and that hundreds of victims will participate. Furthermore, the possibility that the counsel may have to represent divergent instructions of victims will pose additional constraints.
In conclusion, one can only hope that the Court will envisage the structure of assistance to be created for the common legal representative in a flexible fashion and that this structure will include a sufficient number of lawyers to be able to provide effective support to the common legal representative and his assistant.
Géraldine de Vries, Programme Associate, International Justice and Human Rights, Avocats Sans Frontières (Lawyers Without Borders) |
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4 August 2009
Credit: ICC-CPI
On 31 July 2009, ICC Trial chamber II rendered a decision on 345 applications for victim status to the proceedings in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The Chamber decided that 288 persons are granted victim status in the case. The Chamber rejected 5 applications. One person had filled 4 applications and is granted the status of victim participating in the proceedings. For the remaining 40 applications the Chamber requires a number of additional clarifications to make a decision; applicants have until 24 August 2009 to file these clarifications.
The Chamber applied rule 85 a) and b) of the Rules of Procedure and Evidence and the criteria defined by the Appeals Chamber (ICC-01/04-01/06-1432, para. 61 to 65), namely: i) the applicant must be a natural or legal person; ii) that the person suffered a harm; iii) that the crime causing the harm falls within the jurisdiction of the Court and that the crime appears in the confirmation of charges; and iv) that there is a causal link between the crime and the harm.
The grounds for the decision were not disclosed in the document. These grounds will be communicated subsequently with an annex including the Chamber’s analysis of each application.
The trial in the Katanga-Ngudjolo case is scheduled to open on 24 September 2009.
The decision is available in French.
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