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.

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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.

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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

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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