ICC: Victims’ choice vs. legal aid?

Brussels, 31 May 2016 – Since 2010, ASF has been implementing a project on international criminal justice and transitional justice in Uganda. ASF has conducted close consultations with victims and affected communities about prosecution of alleged perpetrators of war crimes and crimes against humanity. Victims have shown a strong interest and willingness to be involved in criminal proceedings, both at international and national levels. They seem, however, lacking sufficient information and understanding as to their rights and  as what participation to criminal proceedings might encompass. This situation is not new to ASF. Similar concerns have been expressed by victims and affected communities in other contexts. Through a working paper released today, ASF seeks to share its experience and reflexions on victims’ representation and participation to proceedings before the International Criminal Court (ICC). It aims at prompting further discussions amongst stakeholders, including the ICC. On 27 November 2015, the Single Judge in the case against Dominic Ongwen (“Ongwen case”) issued what some might consider as a quite unusual decision on the representation of victims and legal aid before the ICC. While upholding the choice of some victims to be represented by two designated lawyers, the Single Judge decided to appoint the Office of the Public Counsel for Victims (OPCV) as the “common legal representative” for the remaining victims who had not mandated these two lawyers. The Single Judge further observed that these two designated lawyers did not qualify for financial assistance by the Court as they were “counsel chosen by victims” and not “common legal representatives” chosen by the Court. The Judge stressed that this observation was prompted by the mention in the Registry’s report that the two designated lawyers had informed the victims that they “would be free of charge as the associated costs could be borne by the Court”. In his decision, the Judge further noted the Registry’s comments that a number of powers of attorney included a statement that (i) the lawyers would represent the victims on a pro bono basis, (ii) the lawyers explained the victims that they would submit a request for legal aid from the Court once appointed, and (iii) the Registry had no information on whether or not the choice of some applicants to designate the lawyers was influenced by this reference to a pro bono assistance. At the time of this decision, 249 victims admitted to participate to the proceedings had granted powers of attorney to these two lawyers, while 294 participating victims had not made such a choice (and were thus to be represented by the OPCV). Since then, after further review of the victims’ application forms by the Registry, these two lawyers are representing more than 1400 victims, while the OPCV is representing a group of around 500 victims. This decision has been confirmed by the Trial Chamber (following a request by the designated lawyers to review the Pre-Trial Single Judge’s decision on legal aid). The Single Judge’s decision has prompted a wide range of questions and concerns amongst victims’ communities, victims’ counsel and some civil society organizations. Particularly, some queried its  impact on future proceedings, including as whether this would imply that victims  would not be able to effectively choose their counsel unless under the presumption that they would then be deprived from any legal aid from the Court. ASF’s article Victims’ choice vs. legal aid? Time for the ICC to re-think victims’ participation as a whole seeks to answer these concerns and, more widely, it discusses legal representation and participation of victims before the ICC in light of its current practice.

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