Meaningful victim participation – but only if you can pay for it?

 

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Near Gulu, Uganda

 

On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial  assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.

Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation?  No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading

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