Some of the victims had requested representation by six independent lawyers, but Judge Trendafilova ruled this out because of the costs to the court’s legal aid scheme.
A similar decision had been issued previously in the case against former Ivory Coast President Laurent Gbagbo. In that decision, taken June 2012, judge Silvia Fernández instructed the OPCV to provide lead counsel in the case, since this was “the most appropriate and cost-effective system” at that stage. The judge indicated that this system could be revisited later “in light of the views expressed by victims”, but the situation remains unchanged.
In the ICC cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto, judges selected external lawyers to represent victims – one for each of the two cases – while indicating that the OPCV would represent victims’ interests in court in situations where the common legal representative could not be present.
By the time this decision was made, victims in the Ruto and Kenyatta cases had already organised themselves into groups and chosen their own lawyers, who had to make way for the newly-appointed representatives.
Some lawyers argue that having judges simply appoint counsel to act for victims goes against ICC rules which state that victims are “free to choose a legal representative”.
Paolina Massidda, principal counsel with the OPCV, defends its approach to victim representation. She and others at the ICC maintain that having the OPCV as the centralised system for coordinating victims representation makes sense, since its lawyers are based in The Hague and able to attend all sessions.
One of the practical reasons for using in-house lawyers is money.
Luc Walleyn is an outside lawyer who represents victims in the case against convicted Congolese warlord Thomas Lubanga Dyilo. He says the trend has emerged due to the limits placed on the court’s spending by the 122 governments that fund it.
“From the state parties there is clearly a pressure to internalise the legal representation for financial reasons,” he said.
Fergal Gaynor, the external lawyer whom the OPCV appointed to represent more than 600 victims in the Kenyatta case, highlighted the shortage of funds allocated to victim representation, which is a time-and labour-intensive process given the numbers involved.
“The main problem is that there are a very large number of victims to be consulted, and the resources which are made available by the court to the victims’ legal representative to do so are very modest,” he said.
DECREASING FOCUS ON VICTIMS
Some lawyers worry that victims are no longer the focus of the ICC that they once were.
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