Challenges of Legal Representation in the Case of Dominic Onwgen

Dominic Onwgen is a former top commander of the Lord’s Resistance Army (LRA) whose trial is due to commence on December 6, 2016 at the International Criminal Court (ICC) in The Hague. Ongwen is charged with war crimes and crimes against humanity allegedly committed in the villages of Lukodi, Odek, Pajule, and Abok, all located in Northern Uganda.

As his trial date looms closer, however, complications have arisen around the issue of legal representation for victims. At the moment, 2,036 victims have been approved for participation in the trial, with more still being registered by the ICC field office in Uganda. The problem stems from the existence of two separate teams of lawyers representing them, a factor that has turned out to be confusing for the victims. As one community member who was consulted noted, “I don’t understand why we cannot be represented by just one group of lawyers or why the two cannot work together.”

Under Regulation 80 of the Regulations of the Court, a chamber of the ICC can appoint a legal representative of victims “where the interests of justice so requires.” In addition, Rule 90(1) of the ICC Rules of Procedure and Evidence stipulates that “victims are free to choose a legal representative of their choice.” In either case, through this representative, victims can then apply for participation in trials, reparations, and assistance from the court. However, Rule 90, in particular, implies that all victims can individually or collectively choose a legal representative.

To manage the large numbers of victims that apply for participation, Rule 90(2) of the Rules of Procedure goes on to stipulate that “the Chamber may for the purposes of proceedings, request victims or particular groups of victims…to choose a common legal representative or representatives.” Rule 90(3) says that “if the victims are unable to choose a common legal representative or representatives…the Chamber may request the Registrar to choose one or more common legal representatives.”

In accordance with Regulation 80, in November 2015 the ICC appointed Paolina Massida from the ICC’s Office of the Public Counsel for Victims (OPCV) to act as the victims’ common legal representative in the case of Ongwen. She was also directed by Single Judge Cuno Tarfusser to hire a local assistant based in Uganda, thus leading to the subsequent appointment of Jane Adong to the legal team. Together they represent 592 victims who have so far been accepted for participation.

But, as indicated above, the ICC rules of procedure also empower victims to choose a legal representative of their choice. Therefore, the trial chamber acknowledged the powers of attorney that victims provided to two lawyers, Joseph Akwenyu Manoba and Francisco Cox, who are independently representing an additional 1,434 victims. The right of victims to choose their own legal representative in accordance with Rule 90(1) was initially recognized in the pre-trial chamber decision from November 2015 and further confirmed on June 17 of this year by the trial chamber.

Victims in the case of Ongwen are now represented by two teams of lawyers, with one team appointed by the court, and another team independently chosen by the victims themselves. The presence of two legal teams representing victims is ideally a big boost for victim participation. It could allow more effective representation of numerous victims – 2,036 were accepted to participate at the pre-trial stage of the case. More victims are expected to participate at the trial phase. In fact, with the ICC field office in Uganda still registering additional victims for participation the number is set to rise.

However, it has also created challenges that threaten cohesion among the victims they represent. As noted by one of the teams in a June 6 submission to the court “victims generally do not understand why they are represented separately although efforts have been made to explain this.”

Another obstacle noted by both teams was the representation of members of the same family by different legal representatives. The independently appointed legal representatives in their submission said that they had “been informed by some clients that child members of their families [were] participating in the proceedings and [being] represented by OPCV, while some adult members of their families were being represented by them.” This created challenges especially in situations where child clients belonging to one set of lawyers needed to meet with their attorneys in the presence of their parents who also belonged to another set of lawyers.

Other challenges noted in the submissions of both legal teams included: victims not knowing which other members of their community were being represented together with them; difficulty in arranging meetings with only clients of one legal team because community leaders and persons needed to keep track of large numbers of participants and carefully identify which teams of lawyers were representing each person, and also because community leaders were themselves participating victims represented by one team; and, difficulty in maintaining confidentiality concerning the discussions held among different sets of victims.

Community members consulted for this article acknowledged the problem and expressed different opinions. While some felt it was a problem that could affect the work of the community members, others downplayed it.

One community leader noted that the presence of two legal representatives could require more financial resources. “The problem I see is that more resources will be required because there are many people involved. The good thing is that they can divide up the work among them. Otherwise, I see no need for the two lawyers to conflict. Both of them have proved to be experienced and approachable, so they should work together.”

Regarding the issue of separate representation for the same family members, community members who were consulted did not consider this to be a big problem, although they did not rule out the possibility of this causing divisions. As one family member said: “I see no problem with family members being represented by separate lawyers because at the end of the day the parents of the children will still be consulted, and they will all benefit regardless of who represents them. The most important thing is for the lawyers to work together.” Another family member noted that “division among family members can be a problem [as a result of separate representation]. One relative may think that the other is getting something better. The lawyers need to organize themselves in such a way that they do not divide up family members. If family members are being represented separately, the lawyers should ensure that information relayed to them is uniform.”

Local leaders in Abok village consulted for this article acknowledged that while separate representation created an extra task for them, it did not discourage them from working for their people. One leader noted that “I have no problem because I work well with all community members regardless of who is representing them. But of course there are other leaders who could favor groups in which they belong. For me I do not mind. My work is to mobilize people so that they participate”.

Overall, community members recommended that the two teams of lawyers work together and meet the community members together. As one community member remarked, “If possible, the two [teams of] lawyers should come to the community and together meet the victims and talk to us about their different roles and whom they represent. This is because they represent us all. There should be no competition between them. If they do not cooperate, then they will not be working for the good of the victims. And if we as victims miss out on compensation because of their fighting, then we shall not be happy with them.”

A further challenge that also needs to be resolved by the court regards financial assistance for the legal representatives. Rule 90(5) of the ICC Rules of Procedure stipulates that “a victim or 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.” However, according to the trial chamber in this case, the rule does not apply to independent lawyers directly chosen by victims. Commentators have, however, challenged this interpretation and argued that it limits victims’ rights regarding who they can select to represent them.

So while the trial chamber recognized the right of victims to appoint their own legal representatives, it also denied the independent lawyers’ request for financial assistance. This creates difficulties, given that the lawyers have to meet their own costs of representing the victims, which is expensive and may not be sustainable in the long run. As Paolina Massidda herself conceded in a previous interview with International Justice Monitor, “you need quite some funds in order to be able to meet with hundreds of victims regularly and keep them informed.” As a result of the imbalance in financial resources, community members claimed that the OPCV lawyers were in a better position to facilitate their clients every time they met as compared to the independent lawyers, a factor that was also causing division. The matter of financial assistance, therefore, will remain a challenge for the independent legal representatives unless resolved by the court.

Victim representation continues to be a complicated matter for the ICC. The filings of the legal representatives and feedback from community members reflect some of the inherent tensions in having only two teams of legal representatives represent thousands of individual victims, who have suffered various types of harm. They also reflect the difficulties of representing individuals with diverse views. Given the scope of the charges against Ongwen, it is inevitable that not all victims will share the same perspective about their role in the trial. In some cases there may also be tensions between the victims and those community leaders that support them, some of whom are themselves also victims, but play also play a representation and liaising role in their communities which, adds on another layer of interests.

In addition, the presence of two teams of victims’ representatives presents opportunities and challenges. As an opportunity, victims are assured of additional legal representation, a factor that will contribute to their proper representation before the trial chamber. The opportunity to appoint independent lawyers can also not be overlooked because lawyers who are ICC staff and those who are not may have different litigation strategies and view victims’ claims in a different manner.

However, as noted above, the presence of two legal teams has also created challenges. Concerns raised by the independent legal representatives that the current arrangement is “neither the most efficient nor the most effective” need to be taken seriously. With the trial due to commence on December 6, these challenges need to be resolved to avoid any future bottlenecks.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development, and economic recovery in Northern Uganda.

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