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

Judiciary – Key Decisions Legal Representation
willingness to engage in client solicitation a more
significant factor’ than other criteria. 1907 However, the
Registry also acknowledged that appointing existing
counsel as common legal representative allowed for
continuity of representation, which is all the more
important when common legal representation is
applied late in proceedings, as participating victims
may have established long-standing relationships with
their legal representatives, making the imposition
of new counsel ‘disorienting and upsetting for the
victims’. 1908
In its filing, the Registry noted that it has commenced
a process of establishing a ‘systematic approach’ to
common legal representation, which incorporates
the following principles: (i) early action on common
legal representation; (ii) meaningful consultation with
victims; and (iii) an open, transparent and objective
selection process. 1909 The Registry did note, however,
that in the present case it had ‘yet to fully realise this
approach’. 1910 The filing set out the general criteria to
be applied by the Registry in selecting common legal
representatives, including the following factors: a
relationship of trust with the victims; a demonstrated
commitment to working with vulnerable persons; a
familiarity or connection to the Situation country;
relevant litigation experience; sufficient availability;
and basic information technology skills. 1911 In
particular, the Registry emphasised that gender would
be a relevant criterion in assessing the potential of
counsel to establish a relationship of trust with the
participating victim, specifically where the Registry
believes that the gender of counsel would enable
victims to speak frankly about the crimes experienced
by them, especially in relation to sexual crimes. 1912
Surprisingly, the Registry did not explicitly set
admittance to the ICC’s List of Legal Counsel as one of
the criteria for selecting common legal representation.
The Registry outlined that it had taken the following
steps in relation to organising common legal
representation in the Kenyan cases:
n
Victim grouping had been determined taking into
account the views and information provided by
victims and intermediaries;
1907 ICC-01/09-01/11-243-Anx1 and ICC-01/09-02/11-214-
Anx1, para 10.
1908 ICC-01/09-01/11-243-Anx1 and ICC-01/09-02/11-214-
Anx1, para 11.
1909 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 3.
1910 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 4.
1911 ICC-01/09-01/11-243-Anx3 and ICC-01/09-02/11-214-
Anx3.
1912 ICC-01/09-01/11-243-Anx3 and ICC-01/09-02/11-214-
Anx3, para 4.
n
n
n
Selection criteria and the respective weight
accorded to them had been established, again
taking into account the views and information
provided by victims and intermediaries as well as
the Registry’s previous experience;
An invitation had been sent out to the List of
Legal Counsel to elicit expressions of interest to
represent victims in the Kenya cases; 1913 and
The Registry had taken into consideration the work
performed by legal representatives in the case to
date.
Acknowledging its statutory obligations to consult
with victims about the appointment of their counsel,
the Registry noted with concern that it had not
been able to consult with all victims in the present
case. 1914 The Registry also acknowledged that when
common legal representation is decided upon prior
to the acceptance of victims in the proceedings, as
is the case in the present proceedings, 1915 ‘there is
a risk that victims’ views may be sidelined’. 1916 To
solve this issue, the Registry explained that it had
sought to consult with members of various victim
communities throughout Kenya to seek their views
on the issue of legal representation. The Registry
noted that ‘while this approach has its limitations,
the Registry considers that it has been able to
establish an understanding of victims’ preferences
regarding their legal representation’. 1917 The Registry
acknowledged that consultations with existing legal
representatives concerning the issue of common
legal representation, which has been the Registry’s
approach in previous cases, would have provided it
with a wealth of information about victims’ views
and concerns in the Kenya cases, but rightly stressed
that ‘their input cannot replace direct consultations
with victims’. 1918 Unfortunately, however, the Registry
has not been able to conduct a ‘tailored and specific
consultation’ with victims on the issue of common
legal representation. In an attempt to explain its lack
1913 The Registry noted that this was the first time such a
step had been taken in the process of recommending
victims’ representation. ICC-01/09-01/11-243 and ICC-
01/09-02/11-214, para 4(c).
1914 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 5.
1915 At the time of filing the proposal for common legal
representation, no victims had yet been accepted to
participate in the proceedings. A decision was issued
three days after the submission of the Registry’s
proposal accepting 327 victims as victim participants.
This decision is discussed in detail in the section on
Victim Participation in this <strong>Report</strong>.
1916 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 6.
1917 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 6.
1918 ICC-01/09-01/11-243 and ICC-01/09-02/11-214, para 7.
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