Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Legal Representation
Disbarment of a legal representative in
Mbarushimana and Lubanga
In a decision of 11 August 2011 in the Mbarushimana
case, 130 victims were granted participatory status
in the proceedings. 1856 Only 48 of the 130 victim
participants had legal representation, which
necessitated common legal representation for the
remaining 82 victim participants. Due to the security
situation in the Kivus, the Registry believed that
consultation with these victim participants regarding
their preferred legal representation would not be
possible within the short time-frame prior to the
confirmation of charges hearing in that case, initially
scheduled to take place on 16 August 2011. Single
Judge Monageng therefore ordered that the Registry
should assign legal representation for the purposes
of the confirmation hearing to the unrepresented
victim participants from one or more of the legal
representatives already recognised, namely Hervé
Daikiese (LRV Daikiese), Mayombo Kassongo (LRV
Kassongo) and Ghislain Mabanga (LRV Mabanga). 1857
LRV Diakiese had been included on the List of Counsel
since February 2007 and had also acted as one of the
legal representatives of victims in the Lubanga case.
The Registry divided the 82 unrepresented victims into
three groups, principally based on their geographic
locations, and assigned one of the three legal
representatives in the case to each of the groups. 1858
However, in a decision of 19 August 2011, the Registrar
removed LRV Diakiese from the List of Counsel. 1859 The
Registry received a letter from the President of the
National Bar of the DRC dated 25 July 2011, informing
them that Diakiese had been disbarred pursuant to a
decision of 10 March by the National Bar Council of the
DRC. 1860 The Registrar noted that ‘in matters of ethics
and professional conduct, disbarment on the grounds
of a breach of professional ethics is generally the most
serious disciplinary measure which may be imposed
on a lawyer’, but went on to note that a decision
to disbar an individual ‘in order to be credible and
justified, must be … founded at least on concrete facts,
devoid of obvious errors or flaws, and issued pursuant
to legal provisions … or within a legal system affording
minimum safeguards of compliance with fair trial
principles’. 1861 However, the Registrar went on to note
that LRV Diakiese’s admission to the List of Counsel had
been based on his status as a lawyer at the Bar of Bas/
Congo and that his disbarment had fundamentally
changed this status.
1856 ICC-01/04-01/10-351. A gender breakdown of these
victims is not currently available.
1857 ICC-01/04-01/10-351, paras 45-48.
1858 ICC-01/04-01/10-387, para 3.
1859 ICC-01/04-01/10-385-AnxII-tEng.
1860 ICC-01/04-01/06-2791.
1861 ICC-01/04-01/10-385-AnxII-tEng, p 3.
In light of the requirement that all counsel included on
the List of Counsel – and particularly those assigned
a mandate by the Court – must comply with the
high standards of ethics and professional conduct
imposed by the Code of Professional Conduct, the
Registrar concluded that the disbarment of LRV
Diakiese constituted a serious offence ‘considered to be
incompatible with the nature of the office of counsel
before the Court’ for the purposes of Regulation
67(2). Regulation 71 also states that the Registrar
shall remove an individual from the List of Counsel
when that person no longer meets the criteria for
inclusion. 1862 LRV Diakiese was therefore removed
from the List of Counsel. He applied to the President of
the Court for review of the Registrar’s decision, 1863 but
this request was denied. 1864
LRV Diakiese represented 30 victims in the
Mbarushimana case and also acted as a legal
representative of victims in the Lubanga case. 1865
In the Mbarushimana case, the Registry recommended
that, for the purposes of the confirmation hearing, LRV
Mabanga should take over the legal representation
of the 30 victim participants formerly represented by
LRV Diakiese. This recommendation was again based
primarily on the geographic location of the victims
and the Registry’s assessment that LRV Mabanga was
best placed to effectively represent the victims in
that particular geographic area. 1866 On 9 September,
Single Judge Tarfusser ordered the appointment of LRV
Mabanga as the legal representative for the 30 victim
participants previously represented by LRV Diakiese. 1867
Common legal representation for the confirmation
hearing in the Mbarushimana case was therefore
organised as follows: LRV Mabanga represented 93
victims (31 who nominated him in their application
and 62 designated by the Registry) while LRV
Kassongo represented 37 victims (13 who nominated
him in their applications and 24 designated by the
Registry). 1868
In the Lubanga case, despite Diakiese’s removal from
the List of Counsel and the unfortunate passing of
Legal Representative of Victims Jean Chrysostome
Mulamba Nsokolon (LRV Mulamba), no change in the
common legal representation of victims was necessary
as LRV Diakiese and LRV Mulamba acted as common
legal representatives within a team. 1869
1862 Regulation 71(1)(a).
1863 ICC-01/04-01/10-388.
1864 ICC-RoC72-01/11-4.
1865 ICC-01/04-01/10-387, para 4.
1866 ICC-01/04-01/10-387, para 5.
1867 ICC-01/04-01/10-409.
1868 ICC-01/04-01/10-387, para 6. A gender breakdown of
these victims is not currently available.
1869 ICC-01/04-01/06-2771.
296