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Victim Participation in International Criminal Justice pp 433–465Cite as

Communication Between Victims’ Lawyers and Their Clients

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Part of the book series: International Criminal Justice Series ((ICJS,volume 11))

Abstract

This chapter looks at the goals and framework of communication between lawyers representing victims and their clients, with a view to offering specific and practical advice for initiating, maintaining and improving that communication. It will first look at the goals and framework of communication between representatives and victims, and how such goals can be set. Then it will address the content of the communication from lawyers to victims and vice versa, namely how victims should be informed, consulted and involved throughout their representation. Thirdly, the chapter will elaborate on the manner and methods through which communication should be achieved. Practical examples based on past ECCC, ICC and STL experience will be offered throughout the chapter. Although its main purpose is to address communication between victims’ lawyers and their clients, the chapter can also be useful to registry officials, Prosecution and Defence lawyers, as well as judges and legal officers involved in the victim participation process.

Kinga Tibori-Szabó is legal officer for the Kosovo Specialist Chambers. She has previously worked for the Legal Representative of Victims at the Special Tribunal for Lebanon. Barbara Bianchini, Clinical psychologist, Victims and Witnesses Unit of the Special Tribunal for Lebanon. Anushka Sehmi, lawyer, former Legal Assistant and Case Manager for the Legal Representative for Victims in the case of The Prosecutor v. Uhuru Muigai Kenyatta before the International Criminal Court and former Field Officer for the Victims Participation and Reparations Section at the ICC. Silke Studzinsky, Head of Victims Participation Office at the Kosovo Specialist Chambers, former Legal Adviser to the Trust Fund for Victims at the International Criminal Court and former international civil party lawyer before the ECCC. The views expressed herein are those of the authors and do not necessarily reflect the views of the employing organisations.

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Notes

  1. 1.

    ICC, Code of Professional Conduct for Counsel, Resolution ICC-ASP/4/Res.1 (adopted at the 3rd plenary meeting on 2 December 2005, by consensus), Article 15.

  2. 2.

    STL, Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon, STL/CC/2012/03 (adopted 14 December 2012), Article 8(F).

  3. 3.

    REDRESS (2005) Ensuring the Effective Participation of Victims before the International Criminal Court. Comments and Recommendations Regarding Legal Representation for Victims, http://www.redress.org/downloads/publications/REDRESS%20-%20Legal%20Representation%20for%20Victims%2023%20May%202005.pdf. Accessed 26 August 2016, p. 2.

  4. 4.

    Written correspondence with Christoph Sperfeldt, Ph.D. Scholar, Australian National University, 27 September 2015 and 5 October 2015 (records on file with the authors).

  5. 5.

    It is also worth noting that the ICC Registry does not have a field presence in all situation countries, which can make the task of conveying messages to victims difficult. In many cases security concerns mean that the VPRS and PIOS cannot operate in such situation countries, leaving a wide information gap.

  6. 6.

    For a more detailed consideration of the challenges involved in working with intermediaries, see Chap. 4.

  7. 7.

    Personal notes and experience of co-author Barbara Bianchini.

  8. 8.

    See, for instance: STL, Prosecutor v. Ayyash et al., STL-11-01/PT/PTJ, Decision on Victims’ Participation in the Proceedings, 8 May 2012, Dispositif; Second Decision on Victims’ Participation in the Proceedings, 3 September 2012, Dispositif; Third Decision on Victims’ Participation in the Proceedings, 28 November 2012, Dispositif; Fifth Decision on Victims’ Participation in the Proceedings, 18 July 2014, Dispositif; Sixth Decision on Victims’ Participation in the Proceedings, 6 November 2014, Dispositif.

  9. 9.

    Personal notes and experience of co-author Kinga Tibori-Szabó.

  10. 10.

    Written correspondence with Christoph Sperfeldt, Ph.D. Scholar, Australian National University, 27 September 2015 and 5 October 2015 (records on file with the authors).

  11. 11.

    Personal notes and experience of co-author Silke Studzinsky.

  12. 12.

    Sperfeldt 2013, p. 360; Written correspondence with Christoph Sperfeldt, Ph.D. Scholar, Australian National University, 27 September 2015 and 5 October 2015 (records on file with the authors).

  13. 13.

    Personal notes and experience of co-author Silke Studzinsky.

  14. 14.

    Written correspondence with Christoph Sperfeldt, Ph.D. Scholar, Australian National University, 27 September 2015 and 5 October 2015 (records on file with the authors).

  15. 15.

    As at April 2015, there were 839 participating victims in the Prosecutor v. Uhuru Muigai Kenyatta case, 850 in the Prosecutor v. William Samoei Ruto and Joshua Arap Sang case. Furthermore, as at April 2015, the Office of the Public Counsel for Victims (OPCV) represented, among others, 1120 participating victims in the Prosecutor v. Bosco Ntaganda case, 729 in the Prosecutor v. Laurent Gbagbo and Charles Blé Goudé case, and 512 in the Prosecutor v. Simone Gbagbo case. In total, the OPCV represents over 3000 victims across eight cases and situations. As at April 2015, it was composed of 11 members of staff.

  16. 16.

    Interview with Carine Pineau and Virginie Roche, legal assistants to Ms. Douzima Lawson, Legal Representative for Victims in Prosecutor v. Jean-Pierre Bemba Gombo, ICC, March 2015 (records on file with the authors).

  17. 17.

    Initially, two groups of participating victims were constituted in the Bemba case, each represented by one legal representative and a small team. After the 2014 death of Mr. Assingambi Zarambaud, one of the legal representatives, the court merged the two victims’ groups who have since then been represented by a single larger team under Me Douzima Lawson.

  18. 18.

    Interview with Carine Pineau and Virginie Roche, legal assistants to Ms. Douzima Lawson, Legal Representative for Victims in Prosecutor v. Jean-Pierre Bemba Gombo, ICC, March 2015 (records on file with the authors).

  19. 19.

    It is important to note here that the right to information is not a privilege of participating victims or civil parties only. Victims of crimes prosecuted before the ECCC, ICC and STL in general (“affected populations” in ICC parlance) have a right to information that is usually the responsibility of the relevant outreach sections.

  20. 20.

    Personal notes and experience of co-author Silke Studzinsky.

  21. 21.

    Interview with Carine Pineau and Virginie Roche, legal assistants to Ms. Douzima Lawson, Legal Representative for Victims in Prosecutor v. Jean-Pierre Bemba Gombo, ICC, March 2015 (records on file with the authors).

  22. 22.

    Personal notes and experience of co-author Anushka Sehmi.

  23. 23.

    Interview with Paolina Massidda, Principal Counsel, Office of Public Counsel for Victims, ICC, November 2014 (records on file with the authors).

  24. 24.

    Interview with Hélène Cissé, Legal Representative of Victims, Prosecutor v. Abdallah Banda, ICC, November 2014 (records on file with the authors).

  25. 25.

    Interview with Luc Walleyn, Legal Representative for Victims, Prosecutor v. Thomas Lubanga Dyilo, ICC, October 2014 (records on file with the authors).

  26. 26.

    For academic views on the benefits of having trials take place close to the location where the crimes were committed and/or where the surviving victims are see: Kamatali 2005, pp. 90–93; Clark 2011, pp. 521–545. Nonetheless, the same commentators also emphasise that security and the impartiality of the judicial process are essential factors to be taken in consideration.

  27. 27.

    ICC, Prosecutor v. Uhuru Muigai Kenyatta, LRV, Victims’ Observations in relation to the “Defence Application for change of place where the Court shall sit for Trial”, ICC-01/09-02/11-629, 7 February 2013, para 5.

  28. 28.

    ICC, Prosecutor v. Uhuru Muigai Kenyatta, LRV, Victims’ Observations in relation to the “Defence Application for change of place where the Court shall sit for Trial”, ICC-01/09-02/11-629, 7 February 2013, para 6.

  29. 29.

    Ibid., para 7.

  30. 30.

    Ibid., paras 8–9.

  31. 31.

    Ibid., para 12.

  32. 32.

    Ibid., para 13.

  33. 33.

    ICC, Prosecutor v. William Samoei Ruto and Joshua Arap Sang, LRV, Common Legal Representative for Victims’ Observations in Relation to the “Joint Defence Application for Change of Place Where the Court Shall Sit for Trial”, ICC-01/09-01/11-620, 22 February 2013, para 3.

  34. 34.

    Ibid., para 4.

  35. 35.

    Ibid., para 3.

  36. 36.

    Ibid., para 5 and Annex I (public).

  37. 37.

    Ibid., Annex II (public).

  38. 38.

    Ibid., para 17.

  39. 39.

    Ibid., paras 27–29.

  40. 40.

    STL, Prosecutor v. Ayyash et al., LRV, Public Redacted Version of the Request on Behalf of the Legal Representative of Victims to the Pre-Trial Judge to Refer Certain Facts to the President Under Rule 60bis(D), STL-11-01/PT/PTJ, 15 April 2013, para 34.

  41. 41.

    Written correspondence with Eleonor Fernandez, Senior legal consultant, Civil Party Lead Co-Lawyers Section, 28 September 2015 (records on file with the authors).

  42. 42.

    Personal notes and experience of co-author Silke Studzinsky.

  43. 43.

    Personal notes and experience of co-author Barbara Bianchini.

  44. 44.

    Adapted from National Victim Assistance Academy 2007, Chapter 5: Communication with Victims and Survivors, V-16; Ministry of Justice 2011. Personal notes and experience of co-author Barbara Bianchini.

  45. 45.

    Personal notes and experience of co-author Barbara Bianchini.

  46. 46.

    National Victim Assistance Academy 2007, Chapter 5: Communication with Victims and Survivors, V-16.

  47. 47.

    Personal notes and experience of co-author Barbara Bianchini.

  48. 48.

    Personal notes and experience of co-author Barbara Bianchini.

  49. 49.

    Kloch 2000, pp. 45–58.

  50. 50.

    Words are symbols and may be used in several ways and have different meaning. These barriers appear when victims and lawyers do not share the same semantic context, do not assign the same meaning to a particular word or symbol, or interpret the same word with a different level of understanding. A language barrier may also occur when the lawyer uses words which are too technical for the victim, or simply they do not speak a common language, and interpreters are not available. Personal notes and experience of co-author Barbara Bianchini.

  51. 51.

    For example, when someone is in distress or upset, he or she will often have difficulty in hearing, understanding, remembering and retaining information. See Henckens et al. 2009, pp. 10111–10119. Also, a stressed victim may not be as receptive to the message as if (s)he was calm, or lawyers who feel frustrated because of the negative outcome of the first meeting with the client might react emotionally to clients' requests for generic explanation.

  52. 52.

    Without an appropriate explanation to the victims about direct and cross-examination techniques as well as witness preparation or in-court dynamics, those who have been intimidated or subjected to severe abuse may be more suggestible or prone to give erroneous answers to leading questions. The Crown Prosecution Service 2002, para 9.5, http://www.cps.gov.uk/publications/prosecution/pretrialadult.html. Accessed 23 February 2015.

  53. 53.

    National Victim Assistance Academy 2007, Chapter 5: Communication with Victims and Survivors, V-17 to V-22.

  54. 54.

    Gazurek and Saris 2002.

  55. 55.

    Interview with Carine Pineau and Virginie Roche, legal assistants to Ms. Douzima Lawson, Legal Representative for Victims, Prosecutor v. Jean-Pierre Bemba Gombo, ICC, March 2015 (records on file with the authors).

  56. 56.

    Interview with Hélène Cissé, Legal Representative of Victims, Prosecutor v. Abdallah Banda, ICC, November 2014 (records on file with the authors).

  57. 57.

    Interview with Luc Walleyn, Legal Representative for Victims, Prosecutor v. Thomas Lubanga Dyilo, ICC, October 2014 (records on file with the authors).

  58. 58.

    Lewis and Jaramillo 2007, Chapter 5, v-14 to v-15.

  59. 59.

    Lewis and Jaramillo 2007, Chapter 5, v-4 to v-5.

  60. 60.

    The list is adapted on the basis of the personal notes and experience of co-author Barbara Bianchini.

  61. 61.

    Miller 2008, p. 89.

  62. 62.

    Miller 2005, pp. 277–298.

  63. 63.

    Lewis and Jaramillo 2007, Chapter 5, v-7.

  64. 64.

    Ibid.

  65. 65.

    Miller 2008, p. 89.

  66. 66.

    The list is adapted on the basis of the personal notes and experience of co-author Barbara Bianchini.

  67. 67.

    Dreeke and Navarro 2009, pp. 1–10.

  68. 68.

    Lewis and Jaramillo 2007, Chapter 5, v-14.

  69. 69.

    Ibid., v-9.

  70. 70.

    Ibid.

  71. 71.

    The list is adapted on the basis of the personal notes and experience of co-author Barbara Bianchini. See also Chap. 10.

  72. 72.

    Winick 2009, pp. 536–544. Personal notes and experience of co-author Barbara Bianchini.

  73. 73.

    Personal notes and experience of co-author Barbara Bianchini.

  74. 74.

    Lewis and Jaramillo 2007, Chapter 5, v-2.

  75. 75.

    Personal notes and experience of co-author Barbara Bianchini.

  76. 76.

    These guidelines are adapted from: Justice Solutions 2001; See also, generally: Foa et al. 2010; personal notes and experience of co-author Barbara Bianchini.

  77. 77.

    Justice Solutions 2001.

  78. 78.

    See, generally: Foa et al. 2010.

  79. 79.

    See, generally: Justice Solutions 2001.

  80. 80.

    McCann and Pearlman 1990.

  81. 81.

    Joinson 1992, pp. 116–122.

  82. 82.

    Figley 1995.

  83. 83.

    Sushelsky 2011.

  84. 84.

    Ibid.

  85. 85.

    Richardson 2001, p. 7.

  86. 86.

    Faith Community Professional Education Initiative 2002.

  87. 87.

    Williams and Sommer 1999, pp. 230–246; Pearlman 1999, pp. 51–64; Fischman 2008, pp. 107–115.

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Authors and Affiliations

  1. The Hague, The Netherlands

    Kinga Tibori-Szabó, Barbara Bianchini, Anushka Sehmi & Silke Studzinsky

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  1. Kinga Tibori-Szabó
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  2. Barbara Bianchini
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Correspondence to Kinga Tibori-Szabó .

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  1. Kosovo Specialist Chambers , The Hague, The Netherlands

    Kinga Tibori-Szabó

  2. Doughty Street Chambers , London, United Kingdom

    Megan Hirst

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Tibori-Szabó, K., Bianchini, B., Sehmi, A., Studzinsky, S. (2017). Communication Between Victims’ Lawyers and Their Clients. In: Tibori-Szabó, K., Hirst, M. (eds) Victim Participation in International Criminal Justice. International Criminal Justice Series, vol 11. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-177-7_15

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