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.

The rules

Rule 90 of the ICC Rules of Procedure and Evidence sets out the basic scheme for appointing victims’ legal representative. According to this rule, victims are free to choose their legal representative (rule 90(1)), with the caveat that when the number of victims and the need to ensure effectiveness of proceedings so require, the Chamber may request victims to choose a common legal representative(s), with assistance of the Registry if need be (rule 90(2)).

Most victims do not attend ICC hearings in person. They take part in proceedings before the ICC through their legal representatives. This is why victims should be represented by someone who they trust. If only feasible, they should be given a possibility to choose a person who, from their perspective, understands their interests and is best suited to represent them before the Court. This is essential not only to ensure victims’ effective representation but also for the recognition of the Court among victims’ communities.

If the victims are unable to choose their own legal representative, the Chamber may request the Registry to choose a common legal representative for them (rule 90(3)). This is when rule 90(5) comes into action. Rule 90(5) provides 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”.

Conflicting interpretations of Rule 90(5)

The Registry’s single policy document on legal aid recognizes that: “experience before the Court has demonstrated that in order to ensure the effective exercise of the rights afforded to victims under the Court’s legal framework, the Court must ensure that legal aid resources are made available to indigent victims” (Registry’s single policy document on the Court’s legal aid system, ICC-ASP/12/13, 4 June 2013, para. 20).

The problem is that grounds for funding representation of victims are not clearly defined in the Court’s legal texts. Rule 90(5) is the only rule which refers explicitly to financial assistance for legal representation of victims before the Court. Interpretations of this rule have been inconsistent. In the Lubanga, Katanga, Abu Garda, Banda and Jerbo and Mbarushimana cases, victims represented by counsel of their own choice were granted legal aid by the Court – a fact highlighted by the LRVs in the Ongwen case (Request, paras 26-29). However in the Ongwen case, the Pre-Trial Chamber interpreted rule 90(5) to mean that financial assistance should be provided only to victims for whom the Court has chosen a common legal representative.

Opposing this approach, in mid-May the LRVs presented to the Trial Chamber IX extensive arguments in favor of adopting a more  permissive interpretation of rule 90(5) for the trial phase. They argued that rule 90(5) relates specifically to cases when a CLR is selected pursuant to rule 90(2) or (3); but does not preclude victims who chose their own legal representative from seeking legal aid from the Court.

The Single Judge of the Trial Chamber rejected this argument, stating: “The fact that victims who individually choose their legal representatives before the Court do not qualify for financial assistance by the Court (contrary to those victims for whom a common legal representative is appointed by the Court) stems from the plain language of Rule 90(5) of the Rules. Any attempt to qualify this provision as ‘permissive’ rather than ‘limiting’ is unpersuasive. Indeed, should the LRVs’ interpretation of Rule 90(5) be upheld, the qualifier that such provision is only applicable with respect to ‘a victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court’ would be deprived of any meaning” (Decision, para. 8, emphasis added).

The Single Judge’s “plain language” interpretation of rule 90(5) suggests a restrictive meaning which is inconsistent with the objective of rule 90 and puts upside down the scheme established in this provision. The purpose of the scheme is to balance victims’ rights to choose their representative and the need to ensure effectiveness of the Court proceedings. Selective and literal interpretation of rule 90(5) given by the Single Judge effectively renders useless rule 90(1) and (2), which allow victims to choose their own legal representatives. Most, if not all, of the victims participating in the ICC proceedings are indigent. Hence, if legal aid is granted only when the Court chooses a CLR, the vast majority will be unable to exercise their right to choose a legal representative  in accordance with rules 90(1) and 90(2). The Single Judge’s interpretation of rule 90(5) therefore appears irreconcilable with rule 90 as a whole.

Up to this point the process of appointing a common legal representative under rule 90 was never initiated by the Chamber in this case. The majority (2/3) of the victims decided to appoint an external counsel to represent them in the proceedings. The CLR was appointed but pursuant to regulation 80 of the Regulations of the Court (subsidiary to the Rules), which gives judges a possibility to appoint a CLR for victims “when interests of justice so require”.  Nevertheless, in substance the nature of legal representation of the 2/3 of all victims participating in the case is exactly the same as the one of the CLR chosen by the Court. The LRVs and the CLR currently represent victims from the same communities, sometimes families (here, para. 25 and here, paras 39-40). Still, the Single Judge’s decision favors the group of victims represented by the OPCV (funded from the Court’s budget), and by doing so creates unjustified negative consequences for the remaining victims represented by the LRVs. The only reason for such differential treatment is that the 2/3 of victims successfully exercised their right guaranteed in the same Rule.

Would a permissive interpretation lead to “an inevitably unwieldy system”?

Another argument the Single Judge makes against a permissive interpretation of rule 90(5) is that it would result in an “inevitably unwieldy system”. “[T]he scheme established by rule 90 is intended to provide a balance between the victims’ right to choose their own legal representative(s), on the one hand, and the effectiveness of the proceedings and cost containment, while preserving victims’ participatory rights before the Court, on the other hand. To accept the LRVs’ interpretation would prejudice this balance and result in an inevitably unwieldy system whereby the Court, when upholding the right of victims to appoint counsel of their own choice, would also be obligated to provide financial assistance to any legal representative appointed by any victims’ group, even if this results in dozens of such representatives being part of the legal aid scheme for a single case” (Decision, para. 12).

This reasoning  does not take into account the existence of rule 90(2). In fact, it seems to assume that this provision does not exist. But it is there and its “plain language” is quite straightforward – when the number of victims and effectiveness of proceedings so require, the Chamber may request the victims or groups of victims to choose a common legal representative, if need be, with assistance of the Registry (Rule 90(2)). If they fail to agree, the Chamber may request the Registry to choose a CLR for these victims pursuant to rule 90(3). When reading Rule 90 as a whole and not each section selectively, it is quite clear that under the current scheme, there is no real threat of an “inevitably unwieldy system”, in which the Court would be required to provide financial assistance to “dozens of representatives for a single case”. The safeguards are already there and there is no need to seek them in a limiting interpretation of rule 90(5).

Conclusion

Denial of legal aid to victims participating in the Ongwen case only on the basis of “plain language” of rule 90(5) of the Rules comes across as irrational and overly formalistic. It is not only inconsistent with the Court’s previous practice, it also goes against the victims’ participatory rights provided for in the Rome Statute and in the Rules and effectively strips victims of their right to choose their legal representative in proceedings before the ICC.

In the context of this particular case, the decision of the Single Judge goes against participatory rights of victims, unjustly differentiating between victims represented by the OPCV and the majority of victims represented by external counsel. The decision does not even touch upon the potential consequences that denial of legal aid to indigent victims may have on their participation in the upcoming trial. It is clear that without legal aid from the Court, the external legal representative of victims might be unable to conduct any, not only meaningful representation, and might be forced to resign from their function. More importantly, the Single Judge has backed the majority of victims participating in the Ongwen case into a corner, pressing them to either accept their unjustly disprivileged position in the proceedings and pay for their own legal representation (an option that is clearly unrealistic) or revoke their right to choose a legal representative and accept to be represented by the OPCV.

Hopefully, the Single Judge’s limiting interpretation of the rules will not be followed in the future. Reading further limits into the rules of financial assistance for victims’ counsel is unnecessary. The Rules recognize that victims have a right to choose their legal representative and at the same time establish a scheme which ensures effectiveness of proceedings. As regards victims participating in the Ongwen case, the LRVs recent submission suggests that a remedy to the Single Judge’s decision on legal aid may come through reorganization of victims’ legal representation. There still is a possibility to initiate the process of appointing a common legal representation to rearrange the current scheme of representation in accordance with rule 90(2) or 90(3). The question is whether the Court will take this path, and whether the process will be conducted transparently and with due consideration of the victims’ views.

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