Victims’ legal representation at the ICC in the Ongwen case and beyond

Victim participation in proceedings before the International Criminal Court (ICC) is a central innovation in international justice: in addition to potentially being witnesses called by a party or the court, victims of crimes tried before the ICC may stand before the court as participants in their own right.

This right of participation is not absolute. But it can nonetheless provide a key bridge between victims and affected communities and ICC proceedings by helping to ensure that justice is not only done, but seen to be done by those impacted by the crimes being prosecuted by the court. In doing so, it has the potential to enhance the court’s legitimacy by serving victims meaningfully.

Few victims will participate in person in ICC proceedings; they participate in its trials through legal representatives.

Victims have a right under court rules to choose a lawyer. That right is not absolute—the court’s judges, for example, can ask victims to select a “common legal representative” (CLR) with the help of its Registry and, if they are unable to do so, the judges may ask the Registry to choose one for them. The Registry also has a general mandate to support victims in organizing their legal representation. These provisions theoretically give the court considerable scope to ensure that victims are informed, respected, and enabled in their choice of legal representation.

In practice, however, budgetary pressures from ICC member countries and growing caseloads mean that Chambers have increasingly given weight to cost and efficiency implications when making decisions about victims’ legal representation. Such implications are legitimate. But they have meant that Chambers have appeared to treat victims’ views on their legal representation as a relevant, but not a determinative or predominant, consideration.

This report takes a closer look at these issues through the lens of the ICC trial of Dominic Ongwen, a former child soldier-turned commander in the Lord’s Resistance Army (LRA). He is charged with 70 counts of war crimes and crimes against humanity committed in attacks on internally displaced persons (IDP) camps in northern Uganda in 2003-2004—Abok, Lukodi, Odek, and Pajule—as well as sexual and gender-based crimes, persecution, and recruiting child soldiers.

Two teams of counsel are representing 4,107 victims at trial.

Based on court documents and policies, interviews with Ugandan and international civil society representatives, journalists, ICC officials, victims participating in Ongwen’s trial, and members of their leadership and organizing groups in their communities, this report considers how and why victims made choices about legal representation and the role the ICC played in facilitating—and at times undermining—those choices.

Drawing on the case, the report makes recommendations for the ICC’s future practice, designed to point towards a new way for the ICC to approach victims’ legal representation. This new approach should reflect a shared vision between Chambers and the Registry that prioritizes support to victims in making their own choices about representation.

Read the full Human Rights Watch report

Background: The Ongwen Case

On December 6, 2016, the trial began for former Lord’s Resistance Army (LRA) commander, Dominic Ongwen, for 70 counts of war crimes and crimes against humanity in the International Criminal Court (ICC) in The Hague.

The LRA, a Ugandan rebel group led by Joseph Kony, originated in 1987 in northern Uganda among ethnic Acholi communities. The Acholi suffered serious abuses at the hands of successive governments in the turbulent 1970s and 1980s, and the campaign against the Ugandan government initially had some popular backing.

But support waned in the early 1990s as the LRA became increasingly violent against civilians, including fellow Acholi. The group abducted and killed thousands of civilians in northern Uganda and mutilated many by cutting off their lips, ears, noses, hands, and feet. Brutality against children was particularly severe; Ongwen himself was abducted by the LRA. The impact of his abduction on his mental capacity has become a significant issue at his trial.

The ICC issued an arrest warrant for Ongwen in 2005, although nearly a decade passed before he was in custody and transferred to the ICC in January 2015. The war crimes and crimes against humanity charges Ongwen now faces—including murder, torture, enslavement, and pillaging—stem from LRA attacks he is said to have commanded as an adult against four internally displaced persons (IDP) camps—Pajule (October 2003), Odek (April 2004), Lukodi (May 2004), and Abok (June 2004)—as well as other crimes committed in these and other communities. These crimes include the conscription and use of children under the age of 15 in hostilities; rape, sexual slavery, and forced marriage of abducted women and girls; and persecution.

Initially, only people from Lukodi could apply to participate as victims in Ongwen’s trial because charges in the original arrest warrant were limited in geographic scope. Additional charges were subsequently brought in respect of Pajule, Odek, and Abok, as well as the other crimes described above. Following a January 2016 confirmation of charges hearing, on March 23, 2016, 70 charges were confirmed against Ongwen.

Two teams of lawyers represent, between them, 4,107 victims in the trial. Of these victim participants, 2,605 are represented by two independently retained or “external” counsels, Joseph Akwenyu Manoba and Francisco Cox, and 1,502 victims are represented by Paolina Massidda, the principal counsel of the ICC’s Office of Public Counsel for Victims with the assistance of a Ugandan field counsel.

Further reading

ICC: Support Victims in Choosing Counsel (Human Rights Watch) (Acholi translation)

Interview: Victims need a greater say at ICC (Human Rights Watch)

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