At the ICC, victims are permitted to participate in trials by making their views and concerns known to the judges on matters that concern them, rather than be involved simply as witnesses. Looking at the Dominic Ongwen case, a recent Human Rights Watch report explores how the court makes decisions about victims’ legal representation in these proceedings.
Testimony before the International Criminal Court (ICC) resumed recently in the case against Dominic Ongwen, a Ugandan former commander of the Lord’s Resistance Army (LRA). The ICC has officially recognized over 4,000 victims to participate in the case, including people from Abok, Lukodi, Odek, and Pajule, in northern Uganda.
These victims are only a fraction of those who suffered during the long conflict there. But their participation represents one of the ICC’s key innovations: victims, represented by their lawyers, making their views and concerns known to the court’s judges. This can help bridge the gap between victims and their communities and the court’s proceedings.
In August, Human Rights Watch released a report looking at how ICC decisions are made about which lawyers represent victims. It is a narrow issue – and doesn’t relate to the defendant’s guilt or innocence – but by respecting victims’ choices for their legal representation, the ICC can help empower victims of serious crimes.
Not eligible to receive legal aid funding
The victims’ experiences around the issue of choosing legal representatives in the Ongwen case are important for future ICC cases. From talking to some of them, we found mixed results.
In Lukodi, we heard how community leaders – concerned that victims’ voices would get left out of the ICC’s proceedings – led a search for a lawyer. The ICC’s judge accepted that these lawyers could represent some victims. But the judge ruled that these lawyers were not eligible to receive the court’s legal aid funding to pay their costs and fees. Given that most victims before the ICC are unlikely to be able to afford their own lawyers, this could have undercut their choice. Victims would have had to go with lawyers chosen by the judge with little input from the victims.
Other court decisions in the Ongwen case have meant that the lawyers chosen in Lukodi and later, by victims in some of the other areas, are receiving ICC funding. And today, as the trial goes on, both teams of lawyers are giving victims a voice in the courtroom. Many of the people we spoke with expressed pride in seeing and hearing both sets of lawyers during the trial.
The ICC needs a new approach
Our report says, though, that the ICC needs a new approach to reverse what seems to be a trend of giving less and less weight to victims’ views in decisions about their legal representation.
Our recommendations are aimed at ICC officials and have little bearing on the broader transitional justice debates in Uganda. But our hope is that the ICC can learn from its recent experience in Uganda and ensure that victims in future cases, whether in the case against Joseph Kony, the LRA leader who remains at large despite a 2005 ICC arrest warrant, or in other countries where the ICC has investigations, will benefit from better and more consistent support in making their own choices about who will speak for them in their quest for justice.