The Human Rights Watch Report on the Ongwen Case and Beyond: Who should represent the victims at the ICC?

The quality of the legal representation victims receive is essential to their meaningful and effective participation in ICC proceedings.¹

ICC court decisions have repeatedly articulated the need to “ensure that the participation of the victims, through their legal representative, is as meaningful as possible, as opposed to purely symbolic.”²

Victims’ choice matters because it can be a way for the victims represented to develop confidence that the counsel who stands for them before the court will represent their views, in turn building confidence in the court process itself.³

Last year, in a post following the establishment of the International Criminal Court Bar Association (ICCBA), I raised an issue which, quite evidently, was on the mind of many Counsel who are on the ICC List of Counsel: the Office of Public Counsel for Victims’ (OPCV) taking over the legal representation of victims, and the subordination of (and running roughshod over) Counsel selected by the victims to the OPCV.

Many Counsel representing, or on the List to represent, victims before the ICC perceived, rightly or wrongly, that they, along with their clients, were being disenfranchised. Perceptions count, especially if the purpose for introducing victims’ participation was to permit victims to present “their views and concerns”((Rome Statute of the International Criminal Court (“Rome Statute”), Art. 68(3). )) and make the proceedings more relevant and meaningful for the victims.

I recommended that the newly elected ICCBA Executive Council convene a commission with insiders and representatives of civil-society NGOs to prepare a report with viable options to be discussed with the Registrar.

The issue remains as ripe as ever. To the best of my knowledge, the ICCBA has done nothing so far to advance the discussion on this issue, just as it did nothing constructively on the legal aid scheme, which, beyond cavil, is a matter attendant to victims’ representation (and which affects all Counsel and their staff). The issue is as complex as it is contentious. But this is why, in part, the ICCBA was established: to tackle issues that impact their clients’ rights. And this issue pits List Counsel (and in situ external Counsel who may not be on the ICC List of Counsel) against the OPCV – whose head has recently been re-elected to the Victims Committee.

This issue is not going away any time soon. Nor, to be fair, is it an issue that can be resolved by the ICCBA. It will take a collective effort of creative thinking and flexibility, with a heavy dose of pragmatism. But ultimately, this being an issue that has significant budgetary implications, the Assembly of States Parties will need to be brought along. It is one thing to afford a right to the victims, it is quite another thing to provide the necessary funding to allow for those rights to be afforded as envisioned. And lest there be any misunderstanding, the right of a victim to representation at the ICC is not on par with the rights accorded to suspects and charged persons. The victims’ right to representation can be expressed in a variety of ways, thus giving way to a variety of interpretations on what exactly is meant by representation and the extent to which victims are entitled to participate in the proceedings. ICC victims are not accorded the status of being a “party,” like the Civil Parties at the Extraordinary Chambers in the Courts of Cambodia.((See ECCC Internal Rule 23(1): “The purpose of Civil Party action before the ECCC is to: a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and b) Seek collective and moral reparations….”))

The Registry made efforts in 2014 to resolve the issue through its ReVision project. Poignantly, the Registrar noted:

The possibility for assignment of either OPCV and external Counsel (under the Court’s legal aid system) as common legal representatives of victims has in instances led to competition and tensions between these two groups, in addition to sometimes conflicting views on how to approach the representation in a specific case.((Registry ReVision Project, Draft Basic Outline of Proposals to Establish Defence and Victims Offices, 31 October 2014, p. 3.))

The Registrar recommended that a single Victims Office be created, consolidating the OPCV and the Registry’s Victims Participation and Reparations Section, and redefining some of the functions performed by the Counsel Support Section, such as:

(i)Establishing first contact with victims, informing them about the opportunity to participate in the proceedings, and providing assistance with filling-in the relevant forms (the function will be performed by personnel in the Field Offices under the supervision of a senior Head of the Field Office);

(ii)Administering and processing of victims’ applications for participation and reparation (a dedicated unit within the Victims Office would be established for that purposes);

(iii)Maintaining a single central victims’ database containing all essential information relating to victims;

(iv)Providing information about the cases and relevant trial developments to participating victims and intermediaries;

(v)Providing uniform and coherent information and more effective assistance to the Judges on all relevant issues, including victim applications, types and groups of victims, relevant developments in a given situation country, etc.;

(vi)Providing legal advice and representation to victims through the appointment of a (common) legal representative from within the Victims Office.((Id., pp. 4-5.))

Under ReVision, the “instances [that] led to competition and tensions” between OPCV and external Counsel, would effectively persist, since the Registrar – for what can only be understood as cost-effective reasons – called for “a pool of independent lawyers”((Id., p. 5.)) to be in the Victims Office “available” to be assigned to groups of victims at all times, while external Counsel “could also be added in each case for the duration of the case.”((Id., (emphasis added). )) Hardly a solution that gave priority to the wishes of the victims or preference to external (List) Counsel.

For a variety of reasons, the proposed ReVision changes did not go beyond the conceptualization phase and a few hours of discussion at a round table conference hosted by the Registrar on 23-24 March 2015. Having participated in that conference, I recall the ReVision proposal going over like a lead balloon amongst Counsel representing victims before the ICC.

The Human Rights Watch (HRW) Report of August 2017 on victims’ legal representation at the ICC may be just what is needed to revive and kick-start the discussion on who should be representing the victims who are relying on the ICC to pay for their legal representation.

Noble intentions – disparate approaches

The starry-eyed drafters of the Rome Statute, boldly going where no other international tribunal had gone before in providing for victims’ participation in the proceedings – with no template from which to draw – were seemingly unappreciative of the complexities associated with selecting, appointing, and financing Counsel for the victims. Noble concepts come with consequences when put in practice – consequences that can be unintentional, though in hindsight, exceedingly obvious.

Who is a victim, who should represent the victim, and who will pay for the victim’s representation are the key questions. Mass atrocities can have hundreds, if not thousands of victims, spanning large geographical areas, involving different groups of victims. The victims may share the commonality of being a victim of a crime or crimes, but their interests and expectations may differ. Moreover, each victim or group of victims has their own narrative that begs to be told. For these reasons, who represents them – individually or collectively – is exceptionally important. And it comes with a cost. Not every victim can have his or her own legal representative paid by the ICC. Rationally combining victims into identifiable groups is cost-efficient, and assuming that sufficient funds are provided and the victims have access to their legal representative, their collective narrative (told by some of the victims and through other evidence) can be heard, and their interests pursued.

But who should be representing these victims? Do they have the right to select who represents them when the ICC is paying for the representation? Are there cost-effective means and due diligence (professional responsibility) measures to ensure that victims are receiving the representation due to them under the Rome Statute?

The OPCV was effectively set up as a resource outlet. It plays two essential roles and serves, essentially, two distinct clients. Its first role is to provide an institutional link between the victims (through their legal representatives) and the ICC. The second role is to be a resource to the Chambers, and by this, I mean to assist the Chambers when called upon to represent the interests of the victims – a role similar to that of a public defender office dedicated to a court, being at its disposal when an indigent suspect or accused is in need of legal representation, presumably for limited purposes and time until “external” Counsel is appointed (as opposed to virtually supplanting the use of them).

Truth be told, given the complexities of representing victims at the ICC, neither Counsel selected or assigned to represent victims nor the OPCV can effectively function without one another. The OPCV has the inside track on what is going on at the ICC. It is imbedded in the luxurious labyrinth that houses the ICC and all its organs and sections. It deals on a daily basis with the byzantine, ever-changing, and often ridiculous administrative practices. It scrupulously follows the proceedings and any relevant jurisprudence that emerges from the ICC. And it is appropriately funded and resourced. Counsel on the List or in situ where the victims are located may or may not be up to snuff with the latest jurisprudence or administrative practices. Some may not know how to draft effective submissions. Some may have little or no experience in the practice of international criminal law. And so on. Then there are others who are exceptionally experienced and competent, who may or may not necessarily need anything from the OPCV. After all, no self-respecting lawyer would (or should) outsource legal research and drafting, or rely on others to provide strategic and tactical directions on matters related to the representation of their clients. And in the mix of things are the Chambers, driven by their judicial obligations to ensure fair and efficient proceedings for all, including the victims: a balancing act of affording the requisite rights to the parties and victims in the most efficient and cost-effective manner.

Victims’ right to legal representation at the ICC is set out in Article 68(3) of the Rome Statute. It calls for victims “views and concerns” to be considered on various issues affecting their personal interests which “may be presented by the legal representatives of the victims where the Court considers it appropriate.” The gist of victims’ legal representation under the Rules of Procedure and Evidence (Rules) and Regulations of the Court (Regulations) can be summed up as follows:

• Rule 90(1) gives victims the right to choose their own legal representatives.
• When there are a number of victims, Rule 90(2) allows the Chamber to request the victims or particular groups of victims to choose a Common Legal Representative (CLR), with assistance from the Registry.
• If the victims cannot agree on a CLR, Rule 90(3) allows the Chamber to request that the Registry appoint one or more CLRs.
• Victims, or groups of victims, who cannot pay for CLRs appointed by the Court may receive financial assistance from the Registry under Rule 90(5).
• Under Regulation 80, the Chamber can effectively commandeer the Rule 90 process and simply appoint a CLR or Counsel from the OPCV to represent the victims.
• Regulation 85 requires the Registry to decide whether legal assistance should be paid for by the Court.

Over the years, the practice at the ICC shows that there is no set approach in selecting the legal representatives for victims. The Chambers decide who represent the victims on a case-by-case basis – unless, of course, the victims have retained their own Counsel who are not dependent on ICC funds((In almost every case before the ICC, the legal representatives of victims have been paid by the Court. The two exceptions are the Comoros Situation and the Abu Garda case. See Human Rights Watch, Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond, August 2017, p. 21, fn. 35.)) – with no discernable trend. The following examples demonstrate the point.

In Lubanga, at the pre-trial stage, some of the victims already had legal representatives and the Chamber did not make any orders concerning CLRs. At trial, the Chamber asked the Registry to make proposals for CLRs under Rule 90. The Registry’s proposals, based on consultations with the victims, were accepted by the Chamber.((See Prosecutor v. Lubanga, ICC-01/04-01/06-1119, Decision on victims’ participation, 18 January 2008; Prosecutor v. Lubanga, ICC-01/04-01/06-1432, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008.))

In Bemba, at the pre-trial stage, the Chamber ordered the Registry to organize CLRs under Rule 90(2), or under Rule 90(3), in case the victims did not agree on a CLR before the set deadline.((Prosecutor v. Bemba, ICC-01/05-01/08-322, Fifth Decision on Victims’ Issues Concerning Common Legal Representation of Victims, 16 December 2008, p. 7.)) For victims who objected to being represented by a CLR, or where a conflict of interest existed, the Chamber appointed an OPCV Counsel as the CLR.((Id., p. 8. )) At trial, the Chamber ordered the Registry to organize CLRs under Rule 90(2) through consultations with the victims’ legal representatives.((Prosecutor v. Bemba, ICC-01/05-01/08-1005, Decision on common legal representation of victims for the purpose of trial, 11 November 2010, para. 2.)) The Chamber accepted the Registry’s proposal on organizing CLRs and authorized it to appoint two separate CLR teams for two groups of victims.((Id., para. 9.))

In Ruto and Sang and Muthaura et al., to overcome logistical, timeframe, and security complications in organizing consultations with victims, the Registry proposed a new “systematic” approach to organizing CLRs:

(a) early action on common legal representation;

(b) meaningful consultation with victims; and

(c) an open transparent and objective selection process.((Prosecutor v. Ruto and Sang, ICC-01/09-01/11-243, Proposal for the common legal representation of victims, 1 August 2011, para. 3; Prosecutor v. Muthaura et al., ICC-01/09-02/11-214, Proposal for common legal representation of victims, 5 August 2011, para. 3.))

In Banda and Jerbo, the Registry proposed the same scheme for organizing CLRs. However, due to logistical and timeframe problems, the Registry did not conduct specific consultations on CLRs with victims and appointed CLRs after a “transparent and competative selection process.”((Prosecutor v. Banda and Jerbo, ICC-02/05-03/09-209, Order inviting the Registrar to appoint a common legal representative, 6 September 2011; Prosecutor v. Banda and Jerbo, ICC-02/05-03/09-337, Decision on common legal representation, 25 May 2012. See also Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 16))

In Gbagbo, the Chamber ordered the Registry to organize CLRs early on at the pre-trial stage.((Prosecutor v. Gbagbo, ICC-02/11-01/11-138, Decision on Victims’ Participation and Victims’ Common Legal Representation at the Confirmation of Charges Hearing in the Related Proceedings, 4 June 2012, para. 4.)) In consultations with victims, the Registry did not conduct extensive consultations, but rather gathered the victims’ preferences as to the general criteria and qualities for selecting a CLR.((Prosecutor v. Gbagbo, ICC-02/11-01/11-120, Proposal for the Common Legal Representation of Victims, 16 May 2012, para. 10.)) The Registry recommended Counsel based on a transparent selection process.((Id.)) However, the Chamber rejected the Registry’s recommendation and appointed an OPCV Counsel as the CLR under Regulation 80.((Prosecutor v. Gbagbo, ICC-02/11-01/11-138, Decision on Victims’ Participation and Victims’ Common Legal Representation at the Confirmation of Charges Hearing in the Related Proceedings, 4 June 2012, paras. 42-44. See also id., p. 26. ))

In Ntaganda, the Pre-Trial Chamber used a similar process, but the Registry did not recommend any specific Counsel for a CLR.((Prosecutor v. Ntaganda, ICC-01/04-02/06-160, Decision Concerning the Organization of Common Legal Representation of Victims, 2 December 2013, para. 2.)) Instead, the Chamber appointed two OPCV Counsel as CLRs for two groups of victims under Regulation 80.((Id., p. 11.))

From these cases, it reasonably follows that the Chambers – driven by efficiency, economy, and other case-dependent concerns – increasingly invoked Rules 90(2) and 90(3) or Regulation 80 by default, using the top-down approach to appointing CLRs.

Then came Ongwen

The Ongwen case deals with the attacks on Lukodi, Pajule, Odek, and Abok – four internally displaced persons’ (IDP) camps in northern Uganda – in 2003-2004, where the number of victims recognized for legal representation at the ICC exceeds 4000. Of these victims, 2605 are represented by external Counsel Joseph Akwenyu Manoba and Francisco Cox, who were chosen by the victims under Rule 90(1). 1502 victims are represented, pursuant to Regulation 80, by the Principal Counsel of the OPCV, Paolina Massida, with the assistance of a Ugandan field Counsel.

Initially, the arrest warrant was limited in geographic scope, so that only people from Lukodi could apply for victims’ participation.((Prosecutor v. Kony et al., ICC-02/04-01/05-57, Warrant of Arrest for Dominic Ongwen, 8 July 2005.)) Lukodi applicants benefited from strong local community/civil society leadership, which initiated a search for a lawyer, helping Lukodi victims to select Joseph Akwenyu Manoba, an external Counsel who is not on the ICC List, as their legal representative before the ICC.((Human Rights Watch, Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond, August 2017, pp. 30-34.))

When the Office of the Prosecutor expanded the scope of the charges to include three other IDP camps, victims from these communities became eligible for participation. Because of the timeframes, the ICC’s outreach activities were limited, and in the absence of strong leadership and organization such as was present in Lukodi, victims from these communities had little or no opportunity to make a choice on legal representation.((Id., pp. 46-51.))

In line with the previous practice of top-down decision-making on CLRs, the Registry recommended the Chamber to order the organization of CLRs under Rules 90(2) and 90(3).((Prosecutor v. Ongwen, ICC-02/04-01/15-303, First Report on Applications to Participate in the Prceedings, 18 September 2015, para. 24.)) The Registry indicated that if such an order is given, it will conduct a “transparent selection process” for a CLR team, potentially including OPCV Counsel.((Id., para. 24, fn. 35: “If so ordered, the Registry would be able to conduct a transparent selection process aimed at identifying common legal representative(s) for the victims, or assistants to common legal representative(s), based on the criteria mentioned by the victims and any instructions of the Single Judge. The Registry also notes that individual(s) from the Office of Public Counsel for Victims could be designated to represent victims in the proceedings, whether as principal counsel or as a member of the team of legal representatives.”))

The Pre-Trial Judge accepted Mr. Manoba as the validly selected legal representative of a number of the victims, but refused to appoint him as the CLR, because he had “not been selected pursuant to a transparent and competitive procedure organised by the Registry.”((Prosecutor v. Ongwen, ICC-02/04-01/15-350, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, 27 November 2015, para. 20.))  Instead, the Pre-Trial Judge appointed an OPCV Counsel under Regulation 80.((Id., para. 24.)) The Pre-Trial Judge also denied the external Counsel’s application for legal aid under Rule 90(5), reasoning that legal aid was limited to Counsel appointed by the Court as a CLR.(( Id., para. 18.)) This decision was upheld at trial.((Prosecutor v. Ongwen, ICC-02/04-01/15-445, Decision on the “Request for a determination concerning legal aid” submitted by the legal representatives of victims, 26 May 2016, para. 8.))

During the course of the trial proceedings, the external Counsel team had grown and re-applied for legal aid to the Registry under Regulation 85.((Legal Representatives of Victims, “Application for Legal Assistance Paid by the Court”, Letter addressed to the Chief of the Counsel Support Section, 10 October 2016, p. 2.)) The Registry requested further guidance from the Trial Judge as to whether the external Counsel team was eligible for legal aid.(( Prosecutor v. Ongwen, ICC-02/04-01/15-581, Registry’s request for clarification on the issue of legal assistance paid by the Court for the Legal Representatives of Victims, 1 November 2016.))

The Trial Judge recalled that “as a matter of law, the plain contextual and teleological interpretation of Rule 90(5) makes it clear that victims who individually choose their own legal representative do not qualify for financial assistance as a matter of right from the Court.”((Prosecutor v. Ongwen, ICC-02/04-01/15-591, Decision on the Registry’s Request for Clarification on the Issue of Legal Assistance Paid by the Court for the Legal Representatives of Victims, 14 November 2016, para. 2, referring to the Pre-Trial Judge’s Decision, Prosecutor v. Ongwen, ICC-02/04-01/15-445, Decision on the “Request for a determination concerning legal aid” submitted by the legal representatives of victims, 26 May 2016, paras. 6-12.)) At the same time, the Trial Judge did not consider that “a new or amended guidance on the matter be given by the Chamber if the Registry deems it necessary to decide on its own the [legal representatives of victims’] further request for legal assistance paid by the Court according to Regulation 85(1) of the Regulations.”((Prosecutor v. Ongwen, ICC-02/04-01/15-591, Decision on the Registry’s Request for Clarification on the Issue of Legal Assistance Paid by the Court for the Legal Representatives of Victims, 14 November 2016, para. 3.))

The Registry granted legal aid to the external Counsel team under Regulation 85(1).((Human Rights Watch, Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond, August 2017, p. 40.)) As the trial goes on, both teams of Counsel (external and OPCV) are acting as the victims’ voice in the courtroom, ensuring the victims’ participation in the proceedings.

Who will stand for us?

This is the question HRW set out to answer in its Report on victims’ legal representation at the ICC.

Having concerns about how decisions on victims’ legal representation are made, namely, that “Chambers have appeared to treat victims’ views on their legal representation as a relevant, but not a determinative or predominant, consideration,”((Id., p. 2.)) HRW analyzed this problem through the lens of the Ongwen case.

Ongwen highlights many of the issues and conflicts surrounding victims’ legal representation at the ICC, and thus serves as an excellent case study to make an assessment and provide recommendations for the ICC’s future practice. HRW’s report is based on in-person, telephone, and email conversations with the victims, representatives of civil society organizations, academics, journalists, and ICC staff. The purpose of the report was to come up with a new approach, which would prioritize victims’ support in making their own choices about legal representation, and yet be acceptable for the Chambers and the Registry in terms of efficiency and resources.

HRW does not disappoint. It has produced an informative, thoughtful, and measured 66-page report, cogently setting out among other things: the jurisprudence of the ICC, how various Chambers have dealt with the issue of who is to represent indigent victims, the concerns voiced by the victims about having their Counsel of choice representing them, the practical considerations given for appointing OPCV Counsel to represent the victims irrespective of the victims’ wishes, and practical recommendations worth considering.

Recommendations by HRW & Others

HRW observed a trend in the ICC practice that gives less and less weight to victims’ views in decisions about their legal representation. Seeking to reverse this trend and enhance the ICC’s legitimacy, the report provides a number of recommendations on how to facilitate and support the victims’ own choices about legal representation and streamline the ICC’s procedure and practice.

HRW’s recommendations build on similar assessments and recommendations by Independent Panel of Experts (assisted by Amnesty International and REDRESS) and Avocats Sans Frontières (ASF).((Human Rights Watch, Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond, August 2017, p. 53.)) Both the Independent Panel of Experts and ASF recommended that priority be given to external Counsel over the OPCV in the representation of victims, especially where candidates for Counsel have knowledge of the country, culture, and local communities, and have established trust and relationship with the victims.((Independent Panel of Experts, Report on Victim Participation at the International Criminal Court, July 2013, p. 27; Avocats Sans Frontières, Catherine Denis, Legal Counsel, Victims’ choice vs. legal aid? Time for the ICC to re-think victims’ participation as a whole, May 2016, paras. 31-37.)) The Independent Panel of Experts recommended that victims ought to have a direct say in the choice of their Counsel, noting that victims have little opportunity to challenge the Chamber’s appointment of Counsel, and that the continuity of legal representation is essential to maintain relationships and trust.((Independent Panel of Experts, Report on Victim Participation at the International Criminal Court, July 2013, p. 27.)) ASF makes the argument that the OPCV may not be the most cost-effective means of CLR of victims, noting that external Counsel are paid according to time sheets and are not accorded the same benefits (health insurance, a pension, etc.) as ICC staff members.((Avocats Sans Frontières, Catherine Denis, Legal Counsel, Victims’ choice vs. legal aid? Time for the ICC to re-think victims’ participation as a whole, May 2016, paras. 31.))

HRW recommends a “sequential approach” (a term apparently coined by REDRESS) to victims’ representation under Rule 90,((Human Rights Watch, Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond, August 2017, p. 15.)) which essentially follows a plain reading of the text of the Rule:

Step 1: As a priority, the Chambers and the Registry should facilitate and support the victims’ own choice of legal representative under Rule 90(1);

Step 2: If the Chamber decides to organize CLRs under Rule 90(2), the priority should be to facilitate the victims’ own choice as a group, and where necessary, have the Registry provide assistance and suggestions as to legal representatives, drawing from the List of Counsel; and

Step 3: As a last resort, when the victims cannot agree on a CLR, the Chamber should instruct the Registry to choose one or more legal representatives under Rule 90(3).((Id., p. 53-54.))

HRW also advocates for extending legal aid under Rule 90(5) to the victims’ choice of external Counsel.(( Id., p. 58.))

My take

A nuanced approach must be found to accommodate the rights, expectations, and budgetary limitations associated with victims’ representation. Therein lies the rub. Legitimate concerns abound by all involved in this issue.

Victims must have Counsel who they feel genuinely represents their interests. Ownership in the process links the victims with the ICC, which is located thousands of miles away from the conflicts being examined. Such ownership also contributes to the reconciliation and restoration process, ensuring “that justice is not only done, but seen to be done, by victims.”((Id., p. 7)) Equally important is the fact that the number of victims, the serious logistical and security issues involved, and other complications attendant to victims’ representation, make the consultation process in the field clumsy, cumbersome, and costly. There is no getting around this paradox.

To maximize and rationalize the time and resources, the Judges and Chambers must exercise their inherent authority in ensuring that victims are effectively represented in accordance with the letter and spirit of the Rome Statute and the implementing framework provided by the Rules and Regulations. And this means stepping in to organize CLRs – be it through the OPCV or from the List.

Likewise, irrespective the wishes of the victims, the Registry must have the authority to reject the assignment of legal representatives who have undertaken to represent victims on their own, expecting at some point to be appointed and compensated by the ICC. There is a need for accountability of the funds to be allocated for such representation, and there is the ethical issue of inappropriate solicitation – ambulance-chasing, if you will. It would be reckless if the Registry, responsible for the proper expenditure of funds at its disposal for victims’ representation, did not have in place procedures for the appointment of legal representatives whose work and associated costs would be paid from the ICC budget.

Accordingly, when it comes to legal representation financed by the ICC, the victims’ choices and preferences as to who gets to represent them cannot be treated as the only consideration and priority. The issue here, however, is not cost-effectiveness. The real issue is to what extent the ICC can continue to rely on the OPCV as a sole representative of victims? Is there some middle ground that would ensure that the victims have ownership in the process, the victims and their representatives do not feel disenfranchised, and the selection process is not too cumbersome?

There is no easy and pain-free answer. Dissatisfaction and dissent will continue, but a workable accommodation is not beyond reach. It is mainly a question of whether there is a will to make changes, which, inexorably, will have a budgetary impact – the extent of which is not readily calculable. But, so what?!

I continue to think that a blue-ribbon panel should be set up – preferably by the Registry – to seriously examine this issue. This means rolling up sleeves, investing time, and having intense discussions. In other words, the process cannot be that of the ReVision, where the Registry proposed its recommendations and then held a discussion that effectively was more of a validation process. I am suggesting a serious working-group process. The ICCBA has thus far shown little to no interest in leading on this issue or in the much larger and connected legal aid scheme issue, but considering that many Counsel on the List are members of the ICCBA, it does carry some clout and should be part of the process. Other Counsel on the List who are not members of the ICCBA should also be involved, as should outside organizations and NGOs that have dealt with the issue of victims’ representation. The Chambers should also be invited and have a representative sit on and participate in the panel.

My personal preference is to have Counsel from the List taking the lead in representing victims. A minimum of two Counsel should be assigned – one whose primary function would be to cover the proceedings, while the other would be in the field.

This may be anathema to the OPCV, but I think its role should be circumscribed primarily – though not exclusively – to providing advice and assistance to Counsel appointed to represent victims. The OPCV would still have Duty Counsel to make court appearances when necessary, but it should not be seen as, or turned into, an in-house legal aid section where it virtually becomes the office representing victims and where Counsel on the List and preferred by the victims are relegated to a subservient role of an investigator or hand-holder for the OPCV Counsel (who would periodically parachute into the field, having little connection to or trust from the victims).

Though this is my basic take, I am sure there are other compelling approaches that should be explored. For now, however, and until there is a meaningful process by the Registry and others to seriously discuss and hammer out solutions on who should represent victims at the ICC, the recommendations by HRW are as practical as they are implementable. A suitable solution, until a better one is found.

About Author

Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

See author's posts

1. Independent Panel of Experts, “Report on Victim Participation at the ICC”, July 2013, para. 12 [↩]
2. Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 9 quoting Prosecutor v. Ruto and Sang, ICC-01/09-01/11-460, Decision on victims’ participation and representation, 3 October 2012, para. 59 [↩]
3. Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 11 [↩]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy. View all posts by Michael G. Karnavas