She pointed out that when her office was asked to provide lawyers to support the leading counsels in the two Kenyan cases, she informed judges that in order to prevent any perception of conflict of interest, the cases would be handled by completely separate teams, sitting in different offices.
“We have an obligation as lawyers, under the code of professional conduct, to verify whether or not there is any conflict of interest,” she told IWPR.
However, a lawyer with extensive experience of how the OPCV works, who spoke to IWPR on condition of anonymity, said that in practice, it was very difficult to keep cases separate within the office.
“Basically anyone at the OPCV can have access to any of the evidence or any of the elements gathered by any of the two teams,” he said. “They represent completely opposite interests but have exactly the same access to the same documents.”
There is also the bigger question of how objective a court-appointed lawyer can be.
Sureta Chana, an international lawyer who represented victims in the Ruto and Sang case, is against the OPCV being assigned to provide lead counsel for victims. She argues that independent lawyers take a broader view and are more able to ask awkward questions.
Chana said some of the submissions she made on behalf of victims were seen as a “nuisance”, for example when she questioned the prosecution’s investigative methods in Kenya.
“This is the not the kind of argument that the OPCV would ever come up with,” she said, adding that she believed the court wanted to appoint its own lawyers to “neutralise” victims’ concerns.
Massidda denied that the OPCV would fail to articulate victims’ concerns to the court or provide less robust representation than an external lawyer would.
“It has to be very clear that when we act as counsel, we are completely independent,” she told IWPR. “Nobody except the victims can question what we do in the courtroom, and I can assure you that it’s really like this. Victims can always say, ‘I don’t like my lawyer, I want someone else’.”
WIDER ICC ENGAGEMENT
Besides questions about how best to serve victims’ interests, turning victim representation into just another function of the court carries other, less tangible risks. Brown argues that it removes a channel through which the ICC can engage with the wider world.
At a time when the court was seeking to establish itself as a force for good and work with supporters in a range of countries, reducing the involvement of external lawyers was “an opportunity lost”, he said.
“The proper use and engagement of external counsel was a way for the ICC to engage with the human rights community across the globe,” Brown said. “To the extent that the role of counsel is broadly diminished, the court is injuring itself.”
(This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation)
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