Ongwen: Concerns over victims' legal representation

A group assisting Ugandan victims of crimes committed by rebels of the Lord’s Resistance Army (LRA) is seeking permission from the International Criminal Court (ICC) to intervene in the case against former LRA leader Dominic Ongwen. The group’s filing raises important questions about the ICC’s treatment of victims of mass crimes.

The Uganda Victims’ Foundation (UVF), a coalition of NGOs and community based organizations, filed a request on March 19 to intervene as amicus curiae in the case against Dominic Ongwen, the former associate of the LRA’s ICC-indicted leader, Joseph Kony.

The UVF explains that it has been approached by numerous victims who are concerned about their legal representation, and who wish to exercise their right to appoint counsel.  Notably, the filing expresses concern over “the lack of proper and effective legal representation that [victims] have received” at the ICC over the past ten years. The filing also expresses concern over the scope of the charges in the case against Ongwen.

So far two main systems for legal representation of victims have co-existed at the ICC. In some cases, victims have been represented by external independent counsel, while in others, victims have been assisted by the ICC Office of Public Counsel for Victims (OPCV). A combination of the two systems has been put in place in some of the most recent ICC cases.

In Uganda, the court appointed the OPCV to assist and represent victims in a series of decisions issued in 2007 and 2008. At the time, the Pre-Trial Chamber noted that “in light of the choice expressed by the victims, the limitations of the legal aid budget for 2008, and the current status of the proceedings, the Registrar recommended the appointment of members of the [OPCV] until such time as either the victims or the Court decide to appoint an external common legal representative.”

According to the UVF, over the years, victims have received very little information from the OPCV on the state of the proceedings against the leadership of the LRA, known as  Kony et al. Presenting this view to the ICC judges for the  first time, the UVF noted that “[d]espite the lack of judicial activity at the court in relation to this case, the OPCV was still duty bound to explain to the victims of the case why the proceedings had not commenced, any obstacles in the apprehension and prosecution of the suspects in the case; as well as answer any questions that the victims had regarding their status as well as the possibility of reparations.”

Communication between victims and their legal representatives is surely at the heart of victim participation. The role of the victims’ legal representatives is not to represent the victims’ general and abstract interest, but to liaise between the victims and the Court. For participation to be genuine and effective, it is essential that legal representatives interact with victims regularly, including during phases of the proceedings when there is little or no judicial activity. Because the vast majority of victims participate through their legal representatives, it is crucial that they are genuinely involved in the choice of their counsel.

Nevertheless, being consulted on their choice of counsel is something that has regrettably not always been allowed to victims before the ICC, especially in some of the court’s most recent cases.

The UVF filing also highlights victims concerns over the scope of the charges brought against Ongwen, as they “do not represent the totality of the crimes suffered by the victims during those particular series of attacks” and would foreclose many victims from participating in the case and from receiving reparations. Similar questions were raised in afiling made by the OPCV in January 2015.

The UVF amicus request is timely in light of the ICC Registry’s ongoing ReVision project, which aims to enhance the efficiency and effectiveness of court management, and has proposed changes to the system for victims’ legal representation. The initial proposal, dated October 2014, prioritized representation by in-house counsel. Civil society organizations have, however, expressed concerns that a system that excludes external counsel could be prejudicial to victims (see here and here).

In re-designing the system, the Registry should learn from the problems with legal representation in past and ongoing cases, which have included insufficient communication with victims. In addition, experience shows that the system must also provide for a mechanism to allow victims to lodge complaints when their counsel do not sufficiently consult with them, or whenever they have concerns about counsel not representing their interests genuinely.

This post originally appeared on the International Justice Monitor.