Victims of crimes committed by the Lords’ Resistance Army (LRA) in Northern Uganda have been waiting for justice for a long time. Dominic Ongwen surrendered to the ICC in January 2015, ten years after arrest warrants were issued for the top five LRA commanders. Perhaps not surprisingly, victims of LRA crimes have taken great interest in the Ongwen case and many have decided to apply for participation in the case before the ICC. On November 18, 2015, the ICC Registry reported that it had received approximately 2,050 victim applications to participate in proceedings.

On November 27, 2015, the single judge of the Pre-Trial Chamber issued the first decision on victims’ applications, which also covers their legal representation and the way in which victims will be allowed to participate in proceedings related to the confirmation of charges. This post is part of a three-part series that will address: 1) the application process; 2) legal representation for victims; and 3) modalities for victims to participate in proceedings. Together the three posts will provide a summary of developments in the case, as well as analysis.

New Attempt to Simplify the Decision-Making Process for Victims’ Applications

Over the past few years, the ICC has been reconsidering the model it uses for reviewing and ruling on victims’ requests to participate in ICC proceedings. In yet another attempt to simplify the decision-making process regarding victims’ applications (for a comparative analysis of decisions on the same matter by other ICC Chambers, see here), Single Judge Cuno Tarfusser established the following steps in a decision issued on September 3, 2015:

1. The Registry analyzes the applications, and transmits to the chamber and the parties (prosecutor and defense) only those that are complete and fall within the scope of the case (e. have been lodged by victims who suffered from one or more of Ongwen’s alleged crimes).
2. The parties have 14 days to raise objections on individual applications.
3. Applications that are not objected to are automatically admitted to the proceedings, as long as the single judge does not reject them. No clarity is offered in the decision as to what circumstances could lead to such a rejection.
4. The single judge makes decisions on acceptance/rejection of any application contested by either party.

The ICC Presidency and chambers have been reviewing and comparing different decision-making processes on victim applications in various cases, with a view to possibly establishing a new unified system. (For a review of the various systems used to date, see the report prepared by the ICC Presidency, in the annex of this report.) Judge Tarfusser’s September 3 decision recognizes that it is prompted by “the need for harmonization of diverging practices in relation to admission of victims for participation in the proceedings across different cases and different stages of the proceedings” and builds upon the latest of those schemes, established by Trial Chamber IV at the trial stage of the Bosco Ntaganda case:

• Under the scheme articulated in Judge Tarfusser’s September 3 decision, a simplified one-page application form is maintained. This is a striking difference from the initial 17-page form drafted by the Registry for the first ICC cases, which was later amended as a seven-page form. Simplified forms facilitate the process for both the court as well as victims and “intermediaries,” those who normally help victims fill out application forms in the field. According to the ICC judges, using a simplified form is justified considering “the very limited and clear purpose of the application phase,” e. determining whether a person qualifies as victim.
• The Registry is instructed to group applications for the purpose of a report that it must submit to the chamber into three groups: a) victims that meet the requirements to participate in the case; b) situations where it is unclear whether a person can be considered a victim for the purpose of the case; and c) persons who do not qualify as victims in the case. However, unlike in the scheme established by Trial Chamber IV for the Ntaganda case, and in accordance with the ICC rules, the Registry is asked to transmit to the parties all the applications that fall within the scope of the case and not only the dubious ones. Transmission of the applications to the defense requires that the applicants’ name and other identifying details be redacted.
• Similar to the scheme established by Trial Chamber IV for the Ntaganda case, under Judge Tarfusser’s proposal, the chamber is only called upon to make decisions on a limited number of applications. However, the applications on which the judges must make a determination are those contested by the parties, as opposed to those that the Registry considers dubious.

Overall, the scheme established by Judge Tarfusser presents the benefit of increased involvement of the prosecution and defense, by giving them an opportunity to review all applications and express any objections that they may have. As such, the decision-making process is more than a mere administrative procedure and involves elements of litigation. It is relevant to note that the opportunity to contest applications has not been abused by the parties in the Ongwen case. Out of 545 applications, the prosecution objected to only one, while the defense objected to 25.

The ICC judges have been trying to review the decision-making process in relation to victims’ applications for participation to ensure that it is more efficient and streamlined. Judge Tarfusser’s scheme appears to maintain a workload for the chambers that is comparable to the one required by the scheme established by Trial Chamber IV for the Ntaganda case, which is significantly lower than in previous cases where judges needed to review and decide on every single application one-by-one.

Judge Tarfusser’s scheme, however, appears to place an extra burden on the Registry, which must apply redactions on all applications for the purpose of sharing them with the defense. While justified, applying redactions is a time-consuming effort. The single judge has considered, however, that given the simplified application form and work already undertaken by the registry “any process of redactions to the applications can be carried out expeditiously.”

The parties’ workload is also likely higher given that they receive and review all applications for participation and not only some. However, as highlighted above, that gives them more opportunities to be involved in the decision-making process. It also allows the parties to identify other information relevant for the case. For example, the prosecution can identify victim applicants who are also witnesses and disclose that information to both the judges and the defense.

Where Are the Victims from?

The registry has processed the victim applications in batches. To date, it has reviewed and forwarded 1,208 applications. Out of those 1,208 applications, 96% belong to victims from the attack on the Lukodi internally displaced peoples’ (IDP) camp. The original arrest warrant issued against Ongwen concerned only the Lukodi IDP camp. However, in late September 2015, the prosecution  notified the chamber that it intends to expand the scope of the case to include other crimes and incidents committed in other locations. One conclusion that can be drawn is that because the initial scope of the case concerned the Lukodi IDP camp only, the registry’s activities to reach out to victims focused primarily on that location, at least during the first few months. Communication of an expanded scope in late September appears to have given the registry little time to reach out to groups in other areas.

Out of the 1,208 applications shared, the single judge has made a decision on 545 applications, all of which have been accepted. The single judge still has to consider over 600 applications transmitted in mid-November, as well as others that the Registry has received, and may have reviewed and transmitted by the December 7, 2015 deadline for transmission of application forms. The confirmation of charges hearing is scheduled to start on January 21, 2016.

The figures and the fact that most of the applications transmitted so far relate to only one location indicate that the number of victims applying to participate in future stages of the proceedings potentially could be very high. The volume of victim applications was one of the reasons cited in a defense request made in mid-November for the confirmation of charges hearing to be postponed (other reasons included the breath of the charges brought against Ongwen, including a more ample geographical scope than initially anticipated; the amount of materials disclosed by the prosecution; and another, confidential reason). The request for postponement was recently denied by the chamber.

Next Steps

The application process is the only “point of entry” for victims to participate in the proceedings. The ICC has spent considerable time and effort assessing how to simplify the application and decision-making process in relation to victims’ requests for participation. Comparatively, far less thought has been given to actual participation in the proceedings, which starts once the victims have been accepted. In order for participation to be meaningful for victims, as well as useful for the court and the proceedings, it is important to consider how victims can be best supported to be genuinely involved. Any such consideration must seek to view victim participation not only from the perspective of the courtroom, but also and primarily from the perspective of victim communities’ dynamics in the field. A relevant way to do that is to carefully reflect upon the way in which victims are represented in court and their engagement in the appointment of representatives. The next post of this series will look into that matter.