Manoba and Cox: Victims Should be Allowed to Ask Questions About All Issues

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 fourth installment of their five-part interview, they explained how they collaborate with the other legal team representing victims and were critical of the limited scope of questions victims’ lawyers have been allowed to ask in court.

International Justice Monitor (IJM): You represent one group of victims. There’s a team from the OPCV (the Office of the Public Counsel for Victims) that represents a separate team of victims. But all of you are representing victims. Presumably your interests are the same. How do you collaborate? How do you work?

Francisco Cox: Yes, we have tried to collaborate on as many joint filings as we can and coordinate on certain issues of mutual concern. But sometimes, we do not agree on a common approach on certain points and each team works its way out. So, like I had mentioned, there has not been support, but there has been collaboration in our coordination among the teams. As you say, we have the same interests; we are independent but we try to coordinate as much as possible.

Manoba: Our approaches are definitely different because we cannot speak for the other team, the OPCV team, but we do our best to visit the victims that we represent monthly in a system that we have designed to have small group meetings where we speak individually to certain groups of victims. Because of the numbers we also have smaller group meetings just to try and kind of capture those unique stories of suffering at the individual level. In the large meetings we provide information or updates in terms of what has been going on in the court; trying to tell them the kind of witnesses that have been in court for a particular period; what they said and what the defense thought about it; and what questions that we posed as victims’ counsel to these witnesses that have appeared. And, of course, many other things that play out in the proceedings that we try and share with clients including the filings that we have made. Obviously, there are numerous filings that you would not know from just following the proceedings, but there is a lot of work that goes on behind the scenes in terms of filings and so on. So, we do provide this information.

Now having said that we do not know if the other team actually uses the same approach or not. But we find that our clients look forward to hearing from us quite often in terms of the style that we have adopted. So, they are eager to have information, to be consulted, to share their views on certain things.

IJM: A number of victims registered in the Ongwen trial testified as prosecution witnesses. Questions were raised about discrepancies between their applications to be registered as victims and their st0atements to prosecution investigators. Why were there discrepancies between the two documents?

Cox: I think this issue also relates to the fact that many are unaware of the intricacies of the application process. It is a very quick process and carried out by facilitators or intermediaries. I can tell you that the completion of victim application forms is done very quickly, for long hours, and I assume the people assisting with the completion of these victim application forms get tired. In addition, intermediaries are trained very quickly and so, the focus is completely different than when you have an investigator of the OTP (the Office of the Prosecutor), that wants someone to give testimony. Even from our work, we can share our experience. When we were thinking about witnesses to bring to trial we would have consecutive interviews and the information would be enriched each time. Sometimes something that was misunderstood by the person that was taking the notes was clarified. This is very common when you have interviews with people. I mean probably if you interview us two days from now about something that you understood someway we would say, “Oh no, what we meant was this.” So, I think it is something that is usually used by defense to try to attack the credibility of a witness. But if you know what the application process is like, you would realize that there are no profound discrepancies.

Manoba: But at the same time also you have situations where language affects whatever is said because in this setting of the Acholi and Lango communities where this case is located, a father could be called by another title or someone could be called a father when in reality the term father is used to identify the person, not because he’s the biological parent.

IJM: But could be an uncle.

Manoba: Exactly.

IJM: Or an older relative.

Manoba: Precisely. So, this has been something that has found itself in most of those victim application forms, so what is said to the prosecution, turns out to be different but in reality. It is about the language, it is about culture and custom in these communities. So, if I say to you, “He’s my father,” and yet he is my uncle, you would not make the distinction unless you try to enquire further about the parental issue to just make that distinction very clear.

IJM: I think we touched on this issue a bit but maybe we can focus on it a bit more. And this is a question of how far lawyers for victims were allowed to question prosecution witnesses. And the defense at times was concerned that the lawyers for victims were asking questions that had less to do with the harm victims have suffered and more to do with evidence of crimes. Do you think the chamber struck the right balance between allowing you as a victims’ lawyers to ask your questions while protecting the fair trial rights of Ongwen?

Cox: I do not think that the right balance was struck in this respect. By that I mean that victims have the right to the truth and not allowing questions that go beyond harm is inconsistent with the Rome Statute.

Furthermore, it is not only inconsistent with the Rome Statue; it is inconsistent with all the evolution of human rights, international human rights law. Victims have a right to truth. This has been said by the Inter-American Court [of Human Rights] constantly and Latin America has a lot of experience on transitional justice issues and that is why our jurisprudence has developed so strongly. This means that victims are able to participate in a meaningful way, which is something that should be replicated at the ICC. As such, victims should give their views and concerns and participate on all those issues that have an impact and effects their personal interests.

I ask, what is more meaningful than if the person that you are trying is convicted or not convicted, is responsible or not responsible, or if the crimes were committed against those victims? Crimes are not committed against institutions or prosecutors or OTPs. They are committed against people. Those people are the victims. Victims participate in the process, so they have a right to ask questions about individual responsibility, about the elements of the crime, about all the issues. The limits to victim participation should ensure that you do not replicate the work of the prosecutor, however there is no violation of due process when you allow victims to participate in a meaningful way in their determination of the responsibility of the person that you are trying.

IJM: But going by the experience of, for example, the Kenya cases at the International Criminal Court, especially the trial that went on before it was terminated the victims’ lawyer there had to apply in advance to ask questions. The judges then would determine whether they would allow those questions. Whereas here it seems you had much wider latitude in the sense that all you needed to do was say yes or no we’re going to question this witness as the proceedings are going on. And then you’re given whatever time it is you’re given to ask questions to that particular witness.

Cox: Yes, however the problem is when … this is once again the vision that you have of victims and the role of victims when you can only ask about harm. It even sounds misplaced. This is not the stage for harm. That is the reparations phase where you would talk about harm suffered by victims. Now we are trying to determine who is responsible and which crimes have been proven beyond a reasonable doubt. So, these formalities regarding submitting advance questions, yes, I think it is an improvement that this is no longer required by LRVs, but also, we have been limited on the subject matter that we can ask about which are fundamental for the interests of our clients. I think the prosecution team is pretty solid and the evidence has been well put. But imagine that some of the attacks on the IDP camps were not supported with sufficient evidence or the questions that we believe should have been asked of witnesses, had not been asked? Why shouldn’t we be able to do our job to make sure that our clients who are victims of that attack are able to put forward questions that have not been covered by the OTP?

Once again, the fairness of the trial, to me, is not affected by having victims participate in a meaningful way, and assisting in the determination of who is responsible for which crimes. If this was a violation of due process you would have to wipe out the jurisprudence of most of Latin American criminal courts that allow participation of victims by asking questions, bringing charges, and accusing the accused or the defendant and you would have to wipe out the French system because all these systems allow for victims to ask questions, and to ask for a penalty. In most systems in Latin America the prosecutor can require X amount of sentence. And the victims can ask for more, less, the same. If this was a violation of due process, then I’m telling you the whole Latin America, south, from Mexico down you would have to wipe it out because it would be a violation of due process.

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