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

Judiciary – Key Decisions Legal Representation
directly with the participating victims in the case. 1894
The Registry argued that its ‘ability … to assist victims
to make their own choice … is highly dependent on
resources and time, both of which were regrettably
limited in the present instance’ and ‘[f]or these reasons
the Registry considers that the victims in the present
case have been unable to choose a common legal
representative’. 1895 The Registry also sought to dismiss
the objections raised by LRV Nice and LRV Dixon on
the basis that the objections had been raised by the
victims’ legal representatives and not the victims
themselves, despite the obvious fact that victims can
only express their views and concerns through their
legal representatives. 1896
On 22 August, the legal representatives of all of the
victims in the case again filed joint observations,
noting that their previous filing of 18 July had been
based on the express instructions of the victims
themselves, and arguing that ‘the Registry is entitled
to provide “assistance” to the victims “if necessary”,
but not to oppose the victim’s choice of counsel
and impose different counsel’. 1897 On 25 August,
the Registry filed a proposal for common legal
representation in which it claimed to have not been
made aware of ‘any significantly distinct interest or
other factor that would require victims to be grouped
separately for representation in the present case’,
therefore leaving ‘no reason why all participating
victims could not be represented by a single legal
team’. 1898 The Registry recommended the appointment
of Helene Cissé (LRV Cissé) as principal counsel and
Jens Dieckmann (LRV Dieckmann) as associate counsel
for all 89 participating victims in the case. Pursuant
to the Chamber’s decision of 6 September noting
the Registry’s recommendation on common legal
representation, 1899 LRV Cissé and LRV Dieckmann
were appointed as the legal representatives of victims
by the Registry on 14 September 2011. 1900 Victims
a/1646/10 and a/1647/10 (represented by LRV Nice
and LRV Dixon) filed a request on 30 September 2011
seeking reconsideration of the Registrar’s appointment
of common legal representatives by the Trial Chamber
pursuant to Regulation 79(3), but at the time of
writing this <strong>Report</strong> no decision has been issued.
1894 ICC-02/05-03/09-187.
1895 ICC-02/05-03/09-187, paras 3-4.
1896 ICC-02/05-03/09-187, para 5.
1897 ICC-02/05-03/09-200, para 5.
1898 ICC-02/05-03/09-203, paras 7-8.
1899 ICC-02/05-03/09-209.
1900 ICC-02/05-03/09-215.
Common legal representation in the
Kenyan cases
On 1 August 2011 the Registry (VPRS) filed its proposal
for common legal representation in the case of Ruto
et al. 1901 An identical filing was made in the Muthaura
et al case on 5 August 2011. 1902 In its proposal for
common legal representation of victims, the Registry
set out the steps taken and the arrangements
proposed for the common legal representation. The
Registry noted that common legal representation
had previously been organised and applied in the
Lubanga, Katanga & Ngudjolo and Bemba cases. 1903
The Registry acknowledged that common legal
representation had previously been arranged at a
late stage in proceedings, with participating victims
being represented either by counsel appointed by the
victims, without the Registry’s involvement, or by the
OPCV up until that point. The Registry noted, however,
that the organisation of common legal representation
had tended to minimally interfere with the role of
existing counsel, either by permitting counsel to form
teams and work together (as occurred in the Lubanga
case) or by appointing one or more of the existing
counsel as the common legal representative. 1904
The Registry argued that the approach of selecting
common legal representatives from among existing
counsel had encouraged the practice among counsel
of ‘fishing’ for clients by proactively approaching
participating victims or potential applicants for
victim participation, either directly or through the
intermediaries assisting applicants. 1905 The Registry
concluded that an approach to common legal
representation under Rule 90(3) 1906 which prioritises
the appointment of counsel already representing
victims in the case risked ‘unduly rewarding the
practice of “fishing” by making an ability and
1901 ICC-01/09-01/11-243.
1902 ICC-01/09-02/11-214.
1903 ICC-01/09-01/11-243-Anx1 and ICC-01/09-02/11-214-
Anx1, para 7, noting that common legal representation
had been put in place immediately before trial
proceedings began in the Lubanga, Katanga & Ngudjolo
and Bemba cases, as well as prior to the confirmation of
charges hearing in the Bemba case. As discussed above,
subsequent to this filing by the Registry, it also provided
recommendations for common legal representation of
participating victims in the Banda & Jerbo case.
1904 ICC-01/09-01/11-243-Anx1 and ICC-01/09-02/11-214-
Anx1, para 7.
1905 ICC-01/09-01/11-243-Anx1 and ICC-01/09-02/11-214-
Anx1, paras 8-10.
1906 Rule 90(3) permits the Registry to choose a common
legal representative or representatives if the victims
have been unable to do so during the period of time
determined by the Chamber.
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