Liesbeth Zegveld, who worked with a group of victims in the Ruto and Sang case until she was forced to stand aside in order to let a court-appointed representative take over, thinks the ICC regards victim representation more as a nuisance than as an asset in legal proceedings.
“The ICC seemed to regard victims [gradually] as a bit of a problem, in terms of the time that they consume and the difficulties they present at various stages of the legal proceedings,” she said. “The court obviously preferred to focus on the accused or other issues that were important to its survival and reputation, rather than spend too much time on the victims.”
Zegveld says that this goes against one of the founding concepts of the ICC, which is that victims should be at the very heart of justice.
“We had been working for these victims for years and we were trusted by the local communities, so it was amazing that the ICC chose to appoint someone new,” said Zegveld. “It upset me that they seem to be undermining the very idea of independent representation. Victims are supposed to be at the forefront of the whole concept of the ICC.”
Other lawyers agree that restricting victims’ choices in this manner could undermine the quality of the legal representation they receive.
Raymond Brown, who represents victims from Darfur in the case against Sudanese president Omar al-Bashir, argues that with a trend towards assigning victim representation to the OPCV rather than allowing people to choose, “The effect is to make victims less visible and less dynamic in the victim participation process.”
Walleyn argues that if the OPCV becomes the sole source of victim representation, this must reduce competition.
“It is like if you would have a law firm which has the monopoly of all defence [work],” Walleyn said. “Of course there will formally be a defence, but it is not the same.”
Massidda says that there is no danger of the OPCV becoming sole representative of victims. Instead, she foresees a system in which the OPCV takes the lead role in the process, since it is based in The Hague, but works closely with external lawyers in the field. This is working well in the Ntaganda and Gbagbo cases, she says.
POSSIBLE CONFLICTS OF INTEREST
Nonetheless, many lawyers see the general trend as a matter of concern, arguing that granting the ICC too much control could result in conflicts of interest.
In the Kenyatta and Ruto cases, the victims represent two opposing sides in the post-election violence of 2007-08. Walleyn thinks it would not be a good idea for the same office to represent the interests of both groups.
Massidda defends the OPCV’s approach and argues that it is capable of acting on behalf of different groups with opposing legal interests.
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