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

Judiciary – Key Decisions Legal Representation
CAR
The Prosecutor v. Jean-Pierre Bemba Gombo
The first time an issue was raised concerning the
appointment of a counsel by a Defence team, was in
January 2010 in the Bemba case when the Prosecution
raised concerns with Trial Chamber III about the
appointment of Nicholas Kaufman as a legal consultant
to the Defence team. 1959 From 5 May 2008 until 4
May 2009, Kaufman had worked as a P-4 Trial Lawyer
for the Prosecution, focusing particularly on the DRC
and Uganda Situations. On 18 November 2009, Lead
Defence Counsel Nkwebe Liriss informed the Office of
the Prosecutor of the appointment of Kaufman as a legal
consultant to the Defence team. 1960 The Prosecution
objected to the appointment of Kaufman, stating that in
his position as trial lawyer, Kaufman had been accorded
‘full access to confidential and under seal information in
all cases and situations’, including information about the
Bemba case that is not accessible to the accused and his
counsel. 1961
Following the formalisation of his appointment as legal
consultant on 12 January 2010, on 18 January 2010
the Prosecution filed a request with the Chamber to
invalidate this appointment on the basis of a conflict
of interest under Articles 12 and 16 of the Code of
Professional Conduct for Counsel. 1962 The Prosecution
argued that Kaufman had knowledge of the strengths
and weaknesses of the Prosecution case, as well as its
strategy in the case against Bemba. The Prosecution
cited in particular to his regular interaction with
Massimo Scaliotti, one of the Prosecution trial lawyers
in the Bemba case, with whom Kaufman had shared
an office, and his participation in Division meetings in
which prosecutorial strategies for the different cases
were discussed. In addition, the Prosecution outlined
that, for the purpose of preparing a task in relation to
the Lubanga case, Kaufman had been given access to an
under seal document (the application for a Warrant of
Arrest against Bemba) which was not yet available to the
Defence in unredacted form. 1963 Finally, the Prosecution
stated that Kaufman himself acted in contravention
of Article 24(1) of the Code of Conduct, which requires
counsel to ‘take all necessary steps to ensure that his
actions or those of other members of the team are not
prejudicial to the ongoing proceedings and do not bring
the Court into disrepute’.
1959 ICC-01/05-01/08-670-Conf, cited in ICC-01/05-01/08-769.
A public redacted version of the filing was later made
available: ICC-01/05-01/08-670-Red.
1960 ICC-01/05-01/08-670-Red, citing ICC-01/05-01/08-670-
Conf-AnxA.
1961 ICC-01/05-01/08-769, para 4 citing ICC-01/05-01/08-670-
Conf-AnxB.
1962 ICC-01/05-01/08-670-Conf, cited in ICC-01/05-01/08-769.
A public redacted version of the filing was later made
available: ICC-01/05-01/08-670-Red.
1963 ICC-01/05-01/08-670-Red, para 17.
On 7 May 2010 Trial Chamber III issued a decision
rejecting the Prosecution request. 1964 The Chamber
found that by virtue of being a ‘legal consultant’,
rather than a counsel for the Defence, Kaufman is not
subject to a representation agreement, cannot make
oral submissions on behalf of the accused and as such
cannot be considered to be ‘practising before the ICC’
for the purposes of the Code of Conduct. As such, the
Chamber found that the Code of Conduct does not
apply to Kaufman as a legal consultant. However,
Defence counsel is subject to the Code and cannot
appoint a member to its team if that appointment
creates a conflict of interest or is otherwise prejudicial
to the ongoing proceedings. The Chamber stressed
that ‘the determinative issue is whether Mr Kaufman,
whilst working for the prosecution, became aware
of more than de minimis confidential information
relevant to the case, which a member of the defence
team should not possess’. 1965 Having analysed the
information submitted to it by the Prosecution, the
Chamber was not convinced that Kaufman was
indeed privy to more than de minimis confidential
information. The Chamber stated that the Prosecution
merely hinted at the possibility, rather than providing
conclusive evidence of the existence of the alleged
conflict of interest. 1966 Taken together with Kaufman’s
‘unequivocal assertions’ that he is unaware of any
relevant confidential information, the Chamber
rejected the Prosecution’s request and granted
Kaufman full access to the case record. 1967 However,
during a trial hearing on 25 November 2010, the Trial
Chamber clarified that Kaufman could not make any
oral interventions during the trial proceedings, by
virtue of his status as a legal consultant. 1968
In a trial hearing on 29 November 2010, the
Prosecution again raised concerns with the Trial
Chamber about Kaufman’s position when it had
been informed that his status had changed from
consultant to associate counsel for the Defence. 1969
The Trial Chamber advised the Prosecution that in its
previous decision it determined that, although the
Code of Conduct did not apply to Kaufman as a legal
consultant, it had not found any conflict of interest
to warrant the invalidation of his appointment
even if the Code would have applied to him. 1970
The Chamber noted, however, that the Prosecution
was free to raise the issue in a written filing, which
1964 ICC-01/05-01/08-769.
1965 ICC-01/05-01/08-769, para 42.
1966 ICC-01/05-01/08-769, para 43.
1967 ICC-01/05-01/08-769, paras 45-47.
1968 ICC-01/05-01/08-T-35-Red-ENG, p 2 lines 19-24.
1969 ICC-01/05-01/08-T-37-Red-ENG, p 3 lines 1-2.
1970 ICC-01/05-01/08-T-37-Red-ENG, p 3 lines 6-20.
307