The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.
Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.
The process of appointing a legal representative is set out in rule 90 of the ICC Rules of Procedure and Evidence (RPE). These can be divided into three sequences. First, victims are generally free to choose their counsel (rule 90(1) RPE). Second, this right is not absolute – the Chamber may, for purposes of effectiveness, request victims to choose a common legal representative(s) (CLR) with assistance of the Registry. Third, if victims are not able to do that, the Chamber may request the Registry to choose a CLR for them (rule 90(3) RPE). But there is also regulation 80 of the Regulations of the Court (RoC) which gives judges a possibility to appoint a CLR for victims “when [undefined] interests of justice so require”, including counsel from the Office for Public Counsel for Victims (OPCV). This regulation de facto allows the Chambers to bypass rule 90 RPE, which, at least in theory, is more inclusive towards victims’ views. The Court’s practice shows that legal representatives are most often appointed either under rule 90(3) RPE or with reference to the requirements of “interests of justice”, and as some argue, without sufficient consultation with victims (see Redress report on Representing Victims before the ICC for a comprehensive analysis).
Judge Cuno Tarfusser, the Single Judge governing the Pre-Trial proceedings against Dominic Ongwen, issued a decision on 27th November 2015 which feeds into the debate on the representation of victims before the Court. Who is best suited to represent victims – is it primarily the role of the OPCV or should it rather be left in the hands of external counsel? And are all participants entitled to apply for financial assistance paid by the Court?
The Single Judge recognized the appointment of external counsel – Joseph Akwenyu Manoba and Francisco Cox – by 249 victims. At the same time, acting under regulation 80(1) RoC, he appointed counsel from the OPCV as a CLR for the remaining 294 unrepresented victims. By 11th January 2016 the number of victims admitted to participate in the case had increased to 2026, 1434 of whom are represented by two external counsel of their own choosing, with the remaining 592 represented by the OPCV.
The Single Judge appointed the OPCV as a CLR, excluding the possibility that the external counsel could take that role. Why? The judge argued that the two external counsel have not been selected pursuant to a transparent and competitive procedure organized by the Registry. However, no such process was initiated by the Registry or the Chamber. Quite the opposite, the Single Judge chose to appoint CLR pursuant to regulation 80(1) RoC. In the decision he refers to regulation 81(4)(e) RoC, according to which, one of the OPCV’s tasks is to “represent victims throughout the proceedings on the instruction or with the leave of the Chamber, when the interests of justice so require”. But does this conjunction of regulations mean that judges appointing a CLR under regulation 80(1) RoC are bound to appoint the OPCV? Among many of the OPCV’s tasks is also “providing general support and assistance to the legal representative of victims and to victims, including legal research and advice” (regulation 81(4)(a) RoC). It is hard not to agree with the Single Judge that appointment of the OPCV is reasonable due to the fact that it has represented some victims in the case against Kony and Vincent Otti and in the situation in Uganda. This representation has been questioned by the Uganda Victims Foundation who pointed out insufficient communication between the OPCV and its clients (see also Mariana Pena’s comments here and here). However, when considering these claims it is important to remember that since 2005 when the arrest warrants were issued for the top LRA commenders, the Court, including the OPCV, scaled back its presence in Uganda as there were no arrests and no proceedings. This has changed with the arrest of Dominic Ongwen. Finally, the Single Judge topped his argument in favor of appointing the OPCV as a CRL, by stating straightforwardly that the appointment of external counsel would bring a disproportionate and unjustified burden to the Court’s legal aid budget (Decision, para. 20).
This leads on to the question of participants’ eligibility to obtain financial assistance from the Court. One of the most interesting issues discussed in the decision of the 27th November 2015. The single judge’s take on this matter is rather a radical one. According to the decision, only victims represented by a CLR, be it the OPCV or external counsel, appointed by the Court may benefit from financial assistance from the Court. The Single Judge’s reasoning in this regard is based on rule 90(5) RPE, which states that “a victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance”. This is a somewhat strict understanding of rule 90(5) and it seems to be inconsistent with the objective of rule 90 RPE when read in its entirety, namely, effective appointment of a diligent counsel in a procedure enabling due consideration of victims’ preferences. Without financial assistance from the Court, counsel chosen by victims will be disadvantaged compared to a CLR appointed by the Court. This may naturally lead to situations in which victims who are able to use their right to choose a legal representative, be it with the assistance of the Registry or without it, are induced to renounce their right and subject themselves to the will of the Court.
The Single Judge’s take on eligibility for financial assistance is also difficult to reconcile with regulation 113(1) of the Regulations of the Registry (RoR). This regulation explicitly provides that “[f]or the purpose of participation in the proceedings, the Registry shall inform victims that they may apply for legal assistance paid by the Court, and shall supply them with the relevant form(s).” The Single Judge makes a brief reference to regulation 113, but only to its section (2) and he does so in support of appointing the OPCV as a CLR. Regulation 113(2) stipulates that in deciding whether to grant financial assistance to a victim, the Registrar should take into account, among other things, the possibility of asking the OPCV to act (Decision, para. 21). This, however, is only one out of the factors listed in regulation 113(2) that the Registrar ought to take into account. The other ones include, among others, factors mentioned in article 68(1), complexity of the case, special needs of the victims, and availability of pro bono assistance.
To that end, it is worth noting the point made by external counsel in their response to defence’s request for postponement of confirmation of charges hearing, filed on 4th January 2016. Emphasizing their “concerted efforts to obtain independent funding to cover costs and pro bono assistance where possible”, external counsel informed the Chamber that they had been unable to obtain independent funding, in the absence of legal aid from the Court, thus they were unable to retain field assistants, and their ability to travel throughout northern Uganda was restricted (paras 14-15). This was one of the points made by external counsel to justify their support for postponement of the confirmation of charges hearing by mid-March requested by the defence. In his Decision rejecting the postponement request, the Single Judge reminded the external counsel of the Code of Professional Conduct and suggested that if they are unable to properly represent victims who had chosen them, they have a duty to refuse a representation agreement (Decision of 11th January 2016, para. 17).
To conclude, the argumentation of the Single Judge regarding participants’ access to financial assistance, in light of his decision to appoint the OPCV as a CLR, is not convincing enough. Perhaps the OPCV, with its knowledge and experience in the ICC procedure, is best suited to act as a CLR for victims in the Ongwen case. However, when appointing a CLR under regulation 80(1) RoC, Chambers should ensure an in-depth consultation with victims, especially in circumstances such as in this case, when more than a half of participants had expressed their wish to be represented by an external counsel. This is even more so, when victims who choose an external counsel as opposed to a Court appointed CLR are automatically denied access to any financial assistance from the Court.
Victims who are able to exercise their rights under the Rome Statute and the RPE and appoint external counsel as their CLR, should be eligible for some financial assistance from the Court, possibly, subject to subsequent review of counsel’s performance. The Single Judge’s argument based on rule 90(5) RPE, Regulation 81(4)(e) RoC and Regulation 113(2) RoR, extracted from their broader context, leaves an impression that the “interests of justice” can be easily watered down to “interests of the Court’s budget”. The Single Judge’s decision regarding victims’ representation and access to legal aid, instead of enhancing victims’ representation rights before the ICC, seems to be preemptively protecting the Court’s budget from unjustified financial claims of their counsel.
Given the potential for inequality between the CLR and the external counsel created by the Single Judge’s decision, it will be interesting to see how things play out if the charges are confirmed and the case goes to trial, whether the current scheme of representation will change or not.