One of the most progressive elements in the creation of the ICC was the decision to give victims their own voice in the proceedings – Article 68.3 of the ICC’s founding Rome Statute states that “where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered.” To that end, the court has an established system for enabling the participation of victims: victims collectively may be represented by external lawyers, who may be paid for by the ICC’s legal aid scheme, and supported by the ICC-staffed Office of Public Counsel for Victims (OPCV), which can itself represent victims in proceedings if needed.

But the question of who represents the victims before the ICC—and at what cost—has now been thrust to the fore by a recent pre-trial ruling in the case against Dominic Ongwen, a former commander of Uganda’s Lords Resistance Army (“LRA”) rebels due to stand trial this year charged with war crimes and crimes against humanity. At issue is the question of whether the ICC’s judges now see internal counsel from the OPCV as the best way of representing victims, over the original stress on bringing in external counsel.

Ongwen is accused of participating in murder, enslavement, abuse of civilians and other crimes during LRA attacks carried out in Northern Uganda in 2004. At least 2,050 victims from Northern Uganda had applied to participate in the ICC proceedings against Ongwen by mid-November 2015 and more applications may have been received since then. Approximately 1,300 of the individuals who want to participate in the trial have asked to be represented by a team composed of two lawyers: Joseph Akwenyu Manoba from Uganda and Francisco Cox from Chile. In a decision issued on November 27, 2015 Judge Cuno Tarfusser confirmed the appointment of Manoba and Cox as representatives of 249 members of the group of 1300 (others may be added as their applications are processed by the court). But Judge Tarfusser also ruled that this group of 249 is not entitled to legal aid to pay their legal team—a decision at odds with previous general court practice.

Citing Rule 90 of the ICC Rules of Procedure and Evidence, Judge Tarfusser reasoned that victims who had chosen the external lawyers could not benefit from legal aid because their legal representatives have not been “chosen by the court.” While he considered the possibility of appointing the external lawyers as common legal representatives for all victims involved in the case, Judge Tarfusser concluded that that “is not appropriate in the present circumstances, considering that they have not been selected pursuant to a transparent and competitive procedure organized by the Registry….” Instead, Judge Tarfusser instructed the external lawyers to inform their clients that while they cannot benefit from legal aid, they might opt for representation free of charge by the legal team of the OPCV (the judge also appointed the OPCV to represent a separate group of 294 victims who have sought to participate in the trial and had not named their own counsel). In practice, refusing victims the funding they would need to pay external lawyers may effectively rule out the option altogether.

The question is: where does Judge Tarfusser’s ruling on legal aid for the preferred external legal team leave the court’s stated obligations to the victims?

The main principle enunciated in Rule 90 is that victims “shall be free to choose a legal representative.” This principle can be overridden to ensure “the effectiveness of the proceedings,” for example to avoid nominating too many lawyers, which would disrupt the proceedings. It is in such exceptional circumstances that the court may intervene. In other words, the court is only meant to interfere with the appointment of legal representatives in order to assist victims, not to impose counsel on them, unless there are reasons to be believe that respecting the victims’ choices would negatively affect the effectiveness of the proceedings, the rights of the accused, or the fairness and impartiality of the trial.

The decision cites costs  as one of the factors to be considered. But it also argues that “knowledge and experience in the procedure before the Court” is an important factor to weigh when appointing legal representatives, and asserts “that counsel from the OPCV will be able to satisfy the expectations of the victims.” No specific evidence is offered to support the latter argument, although last year, victims from Northern Uganda expressed concerns about the performance of the OPCV, arguing that it had failed to inform affected communities about developments in its case against the leadership of the LRA.

Worryingly, the ruling does not consider other very relevant aspects of legal representation:

• Victim participation brings to the court perspectives from the communities most directly affected by the crimes. An external lawyer who comes from the same country as the victims may be particularly well suited to this challenge, helping the court understand the context in which the crimes were committed, and the impact that the atrocities had on individual victims and their communities.
• Engaging external lawyers from affected countries may also facilitate capacity-building in international criminal law, which could help disseminate expertise among practitioners who may intervene in domestic cases under the ICC principle of complementarity.
• Most importantly, the decision on legal representation is likely the most relevant decision that victims make in respect of participation in ICC proceedings. If victims are not truly and genuinely involved in selecting the person that will speak on their behalf, can we expect the participation process to be genuine and inclusive?

Similar rulings preferring the appointment of OPCV over external counsel were also made in the Ntaganda and Gbagbo & Blé Goudé cases. The Ongwen case goes one step further in confirming appointment of external counsel, but denying legal aid. The evidence suggests a growing tendency to appoint OPCV as legal representative of victims in various cases, including by neglecting consideration of victims’ views.

This approach is at odds with the role originally envisioned for the OPCV, which was tasked primarily with assisting external legal representatives. Indeed, using the OPCV staff to represent victims was only anticipated in exceptional circumstances (i.e. “in respect of specific issues;” although the regulations have been amended—by the judges—since).

Taken together, these recent developments suggest that the ICC has reached a point where it needs to reconsider how it goes about engaging victims in the process of justice. Any argument on what is in the victims’ best interest should be based on the expressed preferences of victims. Regrettably, the current situation may lead to the perception that the court mistrusts victims’ preferences and has reservations about the use of external lawyers; that it could have a preference for internal lawyers who may share an institutional vision of the court and its proceedings; or that it may not be up to the challenge (or equipped with the necessary resources) to let victims express their voices— which is what the very notion of participation seeks to promote.