Manoba and Cox: ICC System Poses Many Challenges for Victims’ Lawyers

Joseph Akwenyu Manoba and Francisco Cox represent one group of victims in the International Criminal Court (ICC) trial of a former Lord’s Resistance Army (LRA) commander, Dominic Ongwen. Manoba, an Ugandan, has practiced criminal law for more than 15 years. Cox, a Chilean, has been a criminal defense lawyer for more than 20 years. They represent 2,605 victims, most of whom lived in former camps for internally displaced people (IDP) in the northern Uganda towns of Abok, Lukodi, and Odek between 2002 and 2005. It is during this period that the 70 counts of war crimes and crimes against humanity Ongwen has been charged with are alleged to have taken place and he is alleged to have had a role in attacks on those camps. On August 12, Manoba and Cox spoke to the International Justice Monitor about their work as lawyers for victims. In this second installment of their five-part interview they talked about fundraising to represent victims and how they handle their clients’ psychological needs.

International Justice Monitor (IJM): As lawyers, what have been the challenges you have faced in representing victims in this trial?

Joseph Akwenyu Manoba: Well, we obviously have had a couple of challenges. From the onset when we were appointed or nominated by our clients, the victims, the court denied us access to the financial aid or legal aid budget of the court. Initially, for a whole year we had to spend from our own pocket but at the same time carry out fundraising on our own. That is quite demanding, because, as you can imagine trying to fundraise when you are not an NGO, you are just lawyers, nobody is willing to give you any money. So, you have to find creative ways of fundraising and initially we worked through an NGO that is registered here in Uganda, named AYINET [African Youth Initiative Network] and through whom which we received support. Now, while this was ongoing, we were finally able to obtain legal aid through a decision of the Registrar. We had earlier challenged the decision denying us legal aid without success, and even appealed to the ICC Bar Association, and other international organizations. The break-through came only after the Registrar was allowed the discretion to us grant legal aid, by the Trial Chamber, which itself declined to interfere with the impugned decision of Pre-Trial Chamber II.

Francisco Cox: Yes, I think the main challenge, as Joseph says, has been with the system. I have a lot of experience with Inter-American system of human rights. And in that system, with all its flaws and difficulties, victims are at the center of the system. It is not just token representation; it is real. So, after the struggle that Joseph has described, once we were granted legal aid, there is an expression in Spanish, “We are the invited statue.” As an analogy, it is like inviting somebody to the table, but you hope they do not speak; you hope that they do not eat. They are there, so you can show that the invited person is there, but they will not eat, will not drink, and will not speak. Sometimes that is what it feels like to represent victims at the International Criminal Court [ICC]. This is my first time [working at the ICC] and as I had mentioned, I come from a different background, from the Inter-American Commission [on Human Rights] and Court [of Human Rights]. For example, the Inter-American Commission, although it did not initially spell out how victims could participate, what they did is to include the lawyers of the victims among the delegation of the Commission. As such, this evolved into a system where victims now have full representation and are similar to a third party in the system.

Furthermore, this obsession [at the ICC] that you cannot have victims’ legal representatives become second prosecutors, something which is repeated constantly, is awkward. If I were a defense lawyer I would not mind victims participating and asking questions. I would be more concerned and want the resources that OTP [the Office of the Prosecutor] has. I mean, if you really want to talk about equality of arms in the system, ideally, you should not be concerned about whether victims’ counsel speak more or less or ask questions on these or other subjects, but rather that the defense has equal resources as the OTP. So, the manner in which article 68(3) has been interpreted can be frustrating as the system gives little standing to victims. For instance, we are there representing our clients, but we are limited in the questions that we can ask. We are limited in the amount of people and witnesses and clients that we can bring. To me, this is really strange. You have to explain to your clients why some are going to give testimony and others are not. Of course, we respect their confidentiality and we would never disclose who these people are; however, these are small communities, so you can suspect that maybe if somebody leaves for some period of time they can deduce that somebody was a witness.

Manoba: There are a couple of other challenges that we have had to deal with, but I think we have managed to get through them. Obviously, things like having two teams of lawyers representing victims and amongst these victims, families are divided. Parents may be represented by one team and their children represented by another team. It is a big challenge because then you have situations where parents and their children, or whatever it is, are divided and not allowed to participate in the meetings since they are represented by different legal teams. The issue with this division is that you often have to seek certain clarifications from the parents or guardians and if you engage the parents there could be an accusation from the other team that you are consulting with their client, on the one hand, and also because you represent the child, you cannot provide a transport refund to the guardian and yet the guardian may have spent money bringing the child to attend the meeting.

Cox: Or participate in the meetings together.

Manoba: The other challenge, perhaps, is that we deal with victims who have been traumatized, and have experienced very horrific things. For instance, we are talking about children as young as 12, as young as 10, eight, who have witnessed their families being killed. We are not counselors or trained psychiatrists but you have to deal with this kind of situation. As the child is narrating their story, you think, “am I really able to deal with this? Let alone the child herself?” So, we have had to deal with these challenges in quite, I might say, a difficult way because we are not trained. But I think using our own instincts to know not to proceed with the story because otherwise the risk of retraumatizing this child from the terrible experiences is very high.

Obviously, the court has a section that is mandated to provide support of this nature [the Victims and Witnesses Section]. When an ongoing trial is on then it becomes challenging for us actually. It has been the fact that the section could not give us any of their staff because they had to deal with preparing witnesses who were travelling to the court. So, it has left us in situations where we are on our own, we do not have the budget to hire experts to deal with this situation because it is quite challenging and costly for us to be able to get an expert in this field to deal with the kind of situations we find ourselves in while on mission. So, there have been a lot of these types of challenges and many others obviously that we cannot all outline here. But along the way we have tried to do our best.