Luke Moffett joins JiC for this fascinating article on the battle for victim participation and representation in the context of northern Uganda. Luke is a law lecturer in Queen’s University Belfast and is author of Justice for Victims before the International Criminal Court (2014).

An IDP camp in Kitgum, northern Uganda (Photo: Outreach Uganda.org/)

Victim participation before the International Criminal Court (ICC) is one of the innovations that distinguishes it from earlier tribunals. Ten years on from the first indictments being released by the ICC, the role of victims is becoming more settled, allowing more critical insight into how effectively victims’ interests are being represented and considered by the ICC. Important questions remain. How can the ICC effectively enable thousands of victims of international crimes to voice their views and concerns before the Court? Given the importance of victim participation at the ICC, who gets to decide who speaks for victims is under the spotlight in the Dominic Ongwen case.

Despite the first ICC situation in Uganda being dormant for nearly ten years, the beginning of 2015 saw a flurry of interest in the ICC, particularly following the arrest and transfer of Lord Resistance Army (LRA) commander Dominic Ongwen to the Court. Ongwen’s capture and surrender rejuvenated hope that the ICC could hold senior perpetrators to account, overturning the dismal end of 2014 that was marred with the collapse of the case against Kenyan President Uhuru Kenyatta and the Prosecutor shelving her investigation into the Darfur situation.

Yet, while there has been much written about Ongwen’s background as a child soldier, there has been little attention to victims’ views in the case. The question of which victims’ views the ICC is concerned with has been recently brought to the fore with the public fallout between the Office of the Public Counsel for Victims (OPCV), a body that is mandated with providing legal representation and support to victims and their lawyers, and the Uganda Victims’ Foundation (UVF), a coalition of human rights and civil society organisations working on victims’ rights.

The UVF and OPCV: A Battleground

The fallout is documented in submissions made by the UVF and OPCV in the Ongwen case. The UVF wanted to inform the Court that there has been a lack of proper and effective legal representation of victims’ interests before the ICC in the past ten years in Uganda. This is based on their view that there has been inadequate communication from the OPCV regarding relevant proceedings at the ICC. Accordingly, the UVF wanted to appoint independent legal counsel to represent victims before the ICC and to expand the charges against Ongwen to include crimes beyond those initially investigated by the Court’s investigators.

In response, the OPCV wanted the UVF submission rejected by the Court, arguing it was ‘unfounded’ and ‘premature’ as victim participation had not yet been ordered in the Ongwen case. The OPCV had in January 2015 submitted the views of victims. The OPCV also noted that it had kept in contact with the victims it represents but, given the absence of judicial activities in the case, had not been present in Uganda or carried out activities there in 8 years. Notably, the OPCV stated that the UVF “has not shown its legitimacy to speak on behalf of the victims represented” by the legal representatives.

Last month, Pre-Trial Chamber II rejected the UVF submission on the grounds that there are no victims currently participating in the case and any identification of charges is exclusively in the hands of the Prosecutor. This latter point I would argue is incorrect. Victims should be able to request a right to review decisions not to prosecute certain crimes in order to ensure transparency and accountability of the Office of the Prosecutor. The OPCV and UVF have both been arguing for this on behalf of victims, yet such views are not being fully considered at the ICC.

Dominic Ongwen during hearings at the ICC (Photo: ICC)

What is interesting is the contest of legitimate victim representation; who should speak for victims? Both the UVF and OPCV work closely for victims, but the Ongwen case at the moment focuses only on the 2004 Lukodi massacre in northern Uganda. Based on my research, there has been little or no engagement from either the UVF or the OPCV with the victims of the Lukodi Massacre. Despite thousands of victim applications to participate at the ICC, the mothballing of the Kony and others case means that only a few victims (forty-one) are recognised to participate through the OPCV, most of whom relate to other crimes committed by the LRA and not specifically Lukodi. It really brings into question which victims and intermediaries have access to the ICC and can have their voice heard.

In April 2015, the OPCV conducted a visit to re-establish contact with victims and intermediary groups like the UVF, many of whom were unhappy with the absence of the OPCV in Uganda. Perhaps given the limited resources of the OPCV, it is unrealistic for it to provide in-country support to victim groups in each situation, especially in dormant or long-term cases. However, quarterly or monthly updates, even produced on the ICC website and disseminated to local victim groups or intermediaries could provide an accessible way to keep victims’ informed.

The views from Lukodi

I have been fortunate enough to work with a few victim groups in northern Uganda, including the Lukodi community. In research in 2011 and more recently in April 2015, I found that victims were very keen to participate in ICC proceedings and have their views and concerns presented before the Court. However, the Lukodi community pointed out that the UVF or the OPCV had not yet visited them. The victims wanted to have their own lawyer appointed, either from the OPCV or externally. Their primary concern was to participate in proceedings and to claim reparations, to have their voices represented, not getting bogged down in the politics between the OPCV or UVF. Such divisions inhibit victim representation. With many of the victims in old age, the slow grinding wheels of justice at the ICC will mean that many will not see justice or reparations.

Another organ in the ICC, the Victims Participation and Reparations Section (VPRS), has been working closely with the victims in Lukodi and other victim communities, keeping them informed of developments and helping them to fill out relevant application forms. Yet, the absence of legal representation or at least consistent engagement with victims in Lukodi raises serious concerns of how effective victims’ views and concerns are being advocated before the ICC.

Reform of victim representation at the ICC

All of this arises against the background of reform of representation of victims in participating before the ICC. Under its ReVision plans, the ICC’s Registry, is seeking to reduce the cost of victim participation by combining the OPCV and VPRS into a new Victim Office. Victim lawyers cost €1.29 million in legal aid in 2014 and are forecasted to cost €2.25 million in 2015. Victim representation would generally be drawn from within this new Victim Office, with external lawyer appointed when needed from the situation country. Civil society organisations such as REDRESS and FIDH have been heavily involved in victim participation and have expressed concerns that these reforms could undermine the independence and effectiveness of victim representation.

Last week, REDRESS released a damming report into the current selection and appointment of victim legal representatives of the ICC. REDRESS found that on examining decisions on victim representation before the ICC, insufficient attention was paid to victims’ choice of which lawyer should represent them, with the Court often making the decision for them or changing representation without fully consulting victims or providing their reasoning. Moreover, victims were not informed of their right to challenge appointments of counsel. REDRESS suggests that legal representation of victims at the ICC itself lacks transparency and standards to assess its quality of counsel.

In the situation in Uganda, the fallout between the OPCV and the UVF epitomises the division between those who speak for victims. While the OPCV has a long track record of advocating for victims at the ICC, there remains trepidation as to how effective victims’ views and concerns will be represented at the ICC in the future. Crucially, such problems of victim representation raise concerns as to whether the Court’s judges view the role of victims in proceedings as symbolic rather than meaningful. Despite both the OPCV and UVF making representations to widen the charges in the Ongwen case, the Court consistently refuses to review the discretion of the Prosecutor. In Lukodi there is a strong willingness from victims to have their voices heard and their interests represented at the ICC. But it remains to be seen how effective and meaningful such representation will be.