Trial Chamber III of the International Criminal Court (ICC), currently hearing the case against Jean-Pierre Bemba Gombo (Bemba) has ordered that all victims seeking to participate at trial will be represented by one of two lawyers designated by the court. On November 18, the court ruled on the applications of the first 772 victims seeking to participate at trial and authorized 624 them to proceed to trial. An additional 653 victims have filed requests to participate in the trial, those applications are still pending.
In an order issued just prior to the beginning of trial, the chamber re-iterated the decision that the victims would be represented by two lawyers at trial, and determined that the 653 victims whose applications have not yet been decided would be represented by the Office of Public Counsel for Victims (OPCV):
On 10 November 2010, the Chamber issued it “Decision on common legal
representation of victims for the purpose of trial” whereby it, inter alia,
authorised the Registry to designate two common legal representatives from the
Central African Republic (“CAR”) to represent the totality of the victims allowed
to participate in the case and recalled that where it is appropriate, the OPCV may
appear before the Chamber in “respect of specific issues.”
Those two representatives, Marie-Edith Douzima Lawson and Assingambi Zarambaud are now the sole lawyers authorized to appear at trial on behalf of the 624 victims whose applications have been approved and of those whose applications are eventually approved. This of course, raises the question, can two lawyers effectively represent more than a 1,000 victims in a single case during trial?
As noted by the court, the victims have a right to participate in the trial:
The Trial Chamber notes that, pursuant to Article 68(3) of the Rome Statute,
“the Court shall permit the victims to present their views and concerns at stages
of the proceedings determined to be appropriate by the Court and in a manner
which is not prejudicial to or inconsistent with the rights of the accused and a fair
and impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.”
Can two lawyers, engaged full time in trial have time to consult with more than a thousand victims and then timely present their “views and concerns” to the court?
The court noted that many of the victims have not selected counsel, or have indicated a willingness to be represented by the OPCV or by one of the two lawyers selected to represent victims at trial.
the Chamber is of the view that, in the present circumstances and in
light of the time constraints, it is to the benefit of the Applicants to be represented
by the OPCV in court at the commencement of the trial until a decision on their
applications to participate in the trial proceedings is issued, at which point they
will be represented by one of the two common legal representatives designated
by the Registry.
The chamber does not specifically address the question of what happens if a victim selected their own counsel who is not the OPCV or one of the selected representatives, but presumably this order means that the victim’s selected counsel may not appear at the trial to present that victim’s “views and concerns.”
Has the court gone too far in restricting victim’s right to counsel? It does appear that the court is concerned that victims slow down the process and is looking for ways to expedite the cases and limit victim participation. Because the court and the process is new, the answers are not clear, but it seems unlikely that two lawyers, even with a small staff, engaged full time in a mass atrocity trial could effectively communicate with 1,000 or more clients and seek their input on the case. Whether this case will be a model for future ICC cases or its approach will be scrapped remains to be seen. The question for the chamber should be how seriously do we take the right of the victims to participate, and what steps should be taken to ensure adequate and direct representation of the victims? Following the trial the victims have an opportunity to seek reparations for the harms they have suffered, will they still be restricted to one of two lawyers at the reparations stage?
The ICC prosecutes cases of war crimes, crimes against humanity and genocide. Are they focused on getting the cases tried and over with, on building a record of the alleged crimes, on a fair trial for the accused, or on justice for the victims? Certainly speed of the trial should be last consideration, not the first.