Sir John Chilcot's report on lessons to be learned from the 2003 invasion of Iraq has taken seven years to produce. David Cameron has said it should not be about "punishing" British soldiers, but holding senior people to account. However, 13 years of numerous inquiries and criminal investigations into alleged war crimes by UK military personnel in Iraq have so far produced little in terms of criminal accountability, especially for senior military and political figures.

The mother and son of Baha Mousa hold pictures of him at their house in Basra on September 7, 2011.

© 2011 Reuters

Now that Chilcot's report is out there will be many calls to put senior people on trial for 'war crimes' – including at the International Criminal Court (ICC) in The Hague. But the ICC is not in a position to do this concerning the actual decision to invade Iraq. The court does not have the authority – yet - to prosecute people for the crime of 'aggression', such as the unlawful military invasion of another country.

But the ICC, which the UK helped establish, does have jurisdiction over 'war crimes' committed during a conflict or military occupation itself. While the ICC is designed to be a court of last resort, its prosecutor, Fatou Bensouda, has opened a preliminary examination into alleged war crimes by UK nationals in Iraq. Bensouda's office will consider whether the gravity of war crimes — provided there is evidence for them —warrant its involvement and, crucially, whether the UK authorities are willing and able to properly investigate and prosecute war crimes themselves.

Allegations of war crimes by some UK soldiers quickly surfaced after the invasion, but more than a decade on we are little advanced in knowing the whole truth about these claims, let alone in seeing anyone put on trial. Two public inquiries into specific incidents were forced on reluctant British governments by UK courts.

The first, in 2011, found that Baha Mousa, an Iraqi hotel receptionist, had died in British custody in Basra in 2003 after suffering at least 93 injuries over two days of abuse, including food and water deprivation.

The second, the Al Sweady inquiry in 2014, dismissed allegations of deliberate murder of detainees in a 2004 incident, but still found that UK interrogators had committed serious abuses against Iraqis – including deprivation of food and sleep and sight – that have all previously been found to constitute torture. Hundreds more allegations of abuse of detainees by UK nationals have been submitted to various courts, including the ICC.

So far, many of these allegations have not been properly investigated. It seems the only UK conviction for war crimes in Iraq is of Corporal Donald Payne, who received a one-year prison sentence in 2006 after pleading guilty to the war crime of inhumane treatment in connection with the death of Baha Mousa. In 2010 the government set up the Iraq Historic Allegations Team to conduct criminal investigations into alleged war crimes, but six years on there are still no new prosecutions. The findings of serious abuses in the Baha Mousa and Al Sweady inquiries did not result in new prosecutions.

UK authorities have also shown little interest in investigating whether senior military and political figures are criminally liable for any war crimes. This is despite a powerful new law of 'command responsibility' enacted in UK law in 2002, which states that military and civilian commanders should be held criminally liable for war crimes committed by people within their chain of command when they knew, or should have known, of the crimes but failed to take necessary measures to prevent them or ensure they were investigated. For civilians – for example politicians commanding the armed forces - the test is whether they knew of the crimes or 'consciously disregarded' information about them.

Given that some of the crimes allegedly carried on for years, that some allegations were published by the British media early on during the occupation, and even that the International Committee of the Red Cross' concerns about abuses in UK detention reached the desks of ministers, one would expect investigations into criminal liability of senior figures to have been launched. But there is no evidence this has happened.

The UK's previous investigative failures suggest it's more important than ever for senior figures to be held accountable after Chilcot. It is vital that UK authorities now launch prompt and thorough investigations into these grave allegations – without governmental interference – both to clear the innocent, and hold those responsible to account. The UK authorities also need to show themselves genuinely willing and capable of investigating senior military and political figures and, if the evidence warrants, prosecuting them for command responsibility for war crimes. The UK clearly has the law and the resources to bring about these prosecutions. But if it is not willing to do so, the ICC could step in.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

 

On May 30, 2016, judges at the Extraordinary African Chambers in the Senegal court system will deliver their verdict in the trial of former dictator of Chad, Hissène Habré. Habré faces charges of crimes against humanity, torture and war crimes, and the prosecutor has asked the court to hand down a life sentence. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré was president.

The trial began on July 20, 2015 and ended on February 11, 2016, after testimony from 93 witnesses and final arguments. It was the first trial in the world in which the courts of one country prosecuted the former ruler of another for alleged human rights crimes. It was also the first universal jurisdiction case to proceed to trial in Africa. Universal jurisdiction is a principle of international law that allows national courts to prosecute the most serious crimes even when committed abroad, by a foreigner and against foreign victims. The New York Times has called the case “a milestone for justice in Africa.”

The following questions and answers provide more information on the case.

  1. Who is Hissène Habré?
  2. What are the charges against Habré?
  3. What crimes fall within the jurisdiction of the court?
  4. Why did it take so long to bring Habré to justice?
  5. What was the role of the Chadian government in bringing about Habré’s prosecution?
  6. How did the chambers carry out their investigation?
  7. Why was Hissène Habré the only person standing trial?
  8. What about Idriss Déby, Chad's current president?
  9. What were Habré's rights before the Extraordinary Chambers?
  10. Habré and his chosen lawyers refused to cooperate with the chambers. What effect did that have?
  11. How did the trial proceed?
  12. What were some of the highlights of the prosecution's evidence?
  13. What was the defense lawyers' strategy?
  14. How was information about the trial disseminated? 
  15. What is the maximum punishment Habré could receive if found guilty?
  16. What was the victims' role in the trial?
  17. Will the victims receive reparations?
  18. Can there be an appeal? 
  19. How are the Extraordinary Chambers structured and administered?
  20. How were the prosecutors and judges assigned?
  21. What about the trial in Chad of Habré-era security agents?
  22. How are the chambers funded?
  23. What will happen to the Extraordinary Chambers after the trial? 
  24. What were the key steps in the campaign to bring Habré to justice?
  25. What is the significance of Habré's prosecution under universal jurisdiction?
  26. How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?
  27. Why wasn’t Habré prosecuted in Chad?
  28. Why couldn’t the International Criminal Court prosecute Habre?

 

1. Who is Hissène Habré?

Habré was president of the former French colony of Chad from 1982 until he was deposed in 1990 by Idriss Déby Itno, the current president. Habré has been living in exile in Senegal ever since.

A 714-page study by Human Rights Watch documented evidence of Habré’s government’s responsibility for widespread political killings, systematic torture, and thousands of arbitrary arrests. The government periodically targeted civilian populations, including in the south (1983-1985), and various ethnic groups such as Chadian Arabs, the Hadjerai (1987) and the Zaghawa (1989-90), killing and arresting group members en masse when the administration perceived that the groups’ leaders posed a threat to Habré’s rule.

A 1992 Chadian Truth Commission accused Habré's government of systematic torture and said that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS), whose directors reported directly to Habré. The four successive directors belonged to Habré’s inner circle, some to the same ethnic group, Gorane anakaza, and one to the same family as Habré.

The United States and France supported Habré as a bulwark against Libya's Muammar Gaddafi, who had expansionist designs on northern Chad. Under President Ronald Reagan, the United States gave covert CIA support to help Habré take power in 1982 and then provided his government with massive military aid. The United States also used a clandestine base in Chad to organize captured Libyan soldiers into an anti-Gaddafi force in the late 1980s. Despite the abduction of the French anthropologist Françoise Claustre by Habré’s forces in 1974 and the murder of Captain Pierre Galopin, who went to Chad to negotiate her release in 1975, France also supported Habré against Gaddafi after he took power, providing him with arms, logistical support and information, and carrying out military operations “Manta” (1983) and “Hawk” (1986) to help Chad push back Libyan forces.

2. What are the charges against Habré?

On July 2, 2013 the four investigating judges of the Extraordinary Chambers indicted Habré for crimes against humanity, torture and war crimes. On February 13, 2015, after a 19-month investigation, the judges found sufficient evidence for Habré to face charges of crimes against humanity and torture as a member of a “joint criminal enterprise” and of war crimes on the basis of his “command responsibility.” Specifically, they charged Habré with:

  • The practice of murder, summary executions, and kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and Zaghawa ethnic groups, the people of southern Chad and political opponents; 
  • Torture; and
  • The war crimes of murder, torture, unlawful transfer and unlawful confinement, and violence to life and physical well-being.  

3. What crimes fall within the jurisdiction of the court?

The chamber’s statute gives it competence over the crimes of genocide, crimes against humanity, war crimes and torture as defined in the statute. The definitions generally track those used in the statutes of the International Criminal Court and other international tribunals. The crimes must have taken place in Chad between June 7, 1982, and December 1, 1990, which correspond to the dates of Habré’s rule.

4. Why did it take so long to bring Habré to justice?

The advent of the trial, almost 25 years after Habré’s fall, is entirely due to the perseverance of Habré’s victims and their allies in nongovernmental groups. When Habré was arrested in July 2013, the Toronto Globe and Mail lauded “one of the world’s most patient and tenacious campaigns for justice.” The New York Times wrote that the “Habré case has stood out because of determined victims who were advised and supported by Human Rights Watch and other advocates.” Habré was first indicted by a Senegalese judge in 2000, but for the next 12 years the Senegalese government of former President Abdoulaye Wade subjected the victims to what the Nobel Peace Prize winner Archbishop Desmond Tutu and 117 groups from 25 African countries described as an “interminable political and legal soap opera.” It was only in 2012, when Macky Sall became president of Senegal and the International Court of Justice ordered Senegal to prosecute Habré or extradite him, that progress was made toward the trial. 

5. What was the role of the Chadian government in bringing about Habré’s prosecution?

Habré’s supporters claim that Deby’s government is behind the effort to prosecute him. However, since the victims’ first complaint in 2000, it has been the victims and their supporters who have pressed the case forward, overcoming one obstacle after another. The Chadian government has long expressed its support for Habré’s prosecution, and in 2002 it waived Habré's immunity from prosecution abroad, but it did not otherwise contribute to advancing the case in a meaningful way until it agreed to help finance the court and cooperated with the investigating judges during their four missions to Chad in 2013 and 2014. More recently, the Chadian government seemingly cooled toward the chambers, particularly in Chad’s refusal to transfer additional suspects or to allow Habré-era agents convicted in a separate proceeding in Chad (see below) to testify at Habre’s trial. 

6. How did the chambers carry out their investigation?

The investigating judges began with access to a considerable amount of evidence collected in the years since Habré’s fall, including prior Belgian and Chadian investigations into Habré’s alleged crimes.

A 1992 Chadian Truth Commission accused Habré's government of systematic torture and said that 40,000 people died during his rule. In addition, the chambers’ judges obtained the extensive file Belgian investigators prepared on Habré during four years, which contains interviews with witnesses and “insiders” who worked alongside Habré, as well as DDS documents.

Most important, the chambers’ four investigating judges conducted their own thorough 19-month investigation, and for the most part relied on evidence they developed themselves.

On May 3, 2013, Senegal and Chad signed a “Judicial cooperation agreement” to facilitate the chambers’ investigation in Chad.

The investigative judges conducted four missions (“commissions rogatoires”) to Chad - in August - September 2013, December 2013, March 2014, and May - June 2014. They were accompanied by the chief prosecutor and his deputies as well as police officers. During their visits, the judges gathered statements from 2,500 direct and indirect victims and key witnesses, including former officials of the Habré government.

The judges took copies of DDS files that Human Rights Watch had recovered  in 2001. Among the tens of thousands of documents were daily lists of prisoners and deaths in detention, interrogation reports, surveillance reports, and death certificates. The files detail how Habré placed the DDS under his direct control and kept tight control over DDS operations. Analysis of the data for Human Rights Watch revealed the names of 1,208 people who were killed or died in detention and 12,321 victims of human rights violations. In these files alone, Habré received 1,265 direct communications from the DDS about the status of 898 detainees.

The judges also appointed experts on data analysis, forensic anthropology, handwriting, the historical context of Habré’s government and the functioning and command structure of Habré’s military.

7. Why was Hissène Habré the only person standing trial?

The Chadian victims’ goal in seeking justice in Senegal since 2000 has been a trial of Habré, the head of state who directly controlled the security apparatus and had primary responsibility for his government’s actions. The victims also filed cases in 2000 in Chad against other officials of Habré’s government who were still in Chad.

Under article 3 of the chambers’ statute, the Extraordinary African Chambers can prosecute “the person or persons most responsible” for international crimes committed in Chad during Habré’s rule. In July 2013, the chief prosecutor requested the indictment of five additional officials from Habré’s administration suspected of being responsible for international crimes. These are:

  • Saleh Younous and Guihini Korei, two former directors of the DDS. Korei is Habré’s nephew;
  • Abakar Torbo, former director of the DDS prison service;
  • Mahamat Djibrine, also known as “El Djonto,” one of the “most feared torturers in Chad,” according to the National Truth Commission; and
  • Zakaria Berdei, former special security adviser to the presidency and one of those suspected of responsibility in the repression in the south in 1984.

None of them was brought before the court, however. Younous and Djibrine were convicted in Chad on charges stemming from the complaints filed by victims in the Chadian courts (see below), and Chad refused to extradite them to Senegal. Berdei is also believed to be in Chad, though he is not in custody. The locations of Torbo and Korei are unknown. As a result, only Habré was committed to trial.

8. What about Idriss Déby, Chad’s current president?

President Déby was commander in chief of Habré’s forces during the period known as “Black September,” in 1984, when a murderous wave of repression was unleashed to bring southern Chad back into the fold of the central government. In 1985, Déby was removed from this post, and after a period of study in a military school in France, he was appointed a defense adviser until he left Chad in 1989 to take up arms against Habré.

It is important to note that Article 10 of the chambers’ statute provides that “[t]he official position of an accused, whether as Head of State or Government, or as a responsible government official, shall not relieve him or her of criminal responsibility….” The chambers were thus free to pursue charges against President Déby even though he is currently a head of state, but they did not.

9. What were Habré’s rights before the Extraordinary Chambers?

The process before the Extraordinary Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure. Habré was entitled to a fair trial in accordance with international law. The International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights outline the minimum guarantees that must be afforded to defendants in criminal proceedings.

In accordance with those standards, the chambers’ Statute provides a number of rights to defendants, including:

  • the right to be present during trial;
  • the presumption of innocence;
  • the right to a public hearing;
  • the right to have adequate time and facilities for the preparation of the defense;
  • the right to counsel and legal assistance;
  • the right to be tried without undue delay; and
  • the right to examine and call witnesses.

10. Habré and his chosen lawyers refused to cooperate with the chambers. What effect did that have?

Many defendants facing trial for alleged crimes under international criminal law – such as Slobodan Milošević, Radovan Karadžić and Charles Taylor– asserted that they did not recognize the authority of the tribunal or that they would not cooperate, or have sought to use the trial as a platform to present their version of events.

The burden always remains on the prosecution to prove the accused’s guilt beyond a reasonable doubt. However, if the accused decides to not cooperate in their own trial, that inevitably undermines the exercise of their right to an effective defense, which includes the ability to challenge the evidence against them and the opportunity to call into question the prosecution’s case.

After Habré’s lawyers refused to appear at the opening of the trial in July 2015 because they consider the court to be illegitimate, the court appointed three Senegalese lawyers to defend him and adjourned for 45 days so they could prepare. The first day back, on September 7, Habré was brought in to the court by force, kicking and screaming. After that, he was brought into the courtroom for each session before the doors to the public opened. The three court-appointed lawyers played an active role in questioning each witness and challenging the prosecution’s case, but were handicapped by Habré’s refusal to cooperate with them. Habré has remained silent, as is his right, even when the prosecutor tried to question him in line with standard criminal trial procedure in civil law jurisdictions.

11. How did the trial proceed?

The chambers sat for 56 days and heard from 93 witnesses. The trial examined evidence regarding alleged crimes committed during various periods in Chad under Habré: attacks against the Hadjerai ethnic group (1987), the Zaghawas (1989), and southern populations including the so-called “Black September” in 1984; the arrest and torture of political prisoners, and the treatment of prisoners of war. Some of the most moving testimony came from survivors, who described their experience in prisons and camps. Among the other witnesses were experts on that period in Chad, the president of the 1992 Chadian truth commission, former members the DDS, the Belgian judge who carried out a four-year investigation into a complaint filed against Habré in Belgium, a French doctor who treated 581 torture victims, researchers from Amnesty International and Human Rights Watch, and forensic, statistical and handwriting experts.

The witnesses, after presenting their testimony to the court, were questioned, in turn, by the prosecutor, the civil party lawyers and Habré’s court-appointed lawyers. The judges, in a departure from the French civil law “inquisitorial” model, generally did not put many questions to the witnesses. 

12. What were some of the highlights of the prosecution’s evidence? 

  • Four women sent to a camp in the desert north of Chad in 1988 testified that they were used as sexual slaves for the army and that soldiers had repeatedly raped multiple women. Two were under 15 at the time. One testified that Habré himself had also raped her. 
  • Other survivors testified that rape of women detainees was frequent in the DDS’s Locaux prison in N’Djaména.
  • Ten witnesses testified that they had personally seen Habré in prison or were sent to prison personally by Habré.
  • Prison survivors said that corpses were kept rotting in jail cells until there were considered to be enough to be taken away.
  • Survivors described the main forms of torture, in particular the “arbatachar,” which involved tying all four of a prisoner's limbs behind their back to interrupt the bloodstream and induce paralysis.
  • Bandjim Bandoum, once a top DDS agent, testified about the agency’s inner workings. He explained that when reports on detainees were sent to the presidency, they came back with annotations: E for “executer - execute”; L for “liberer - set free” or V for “vu - seen.” “Only the president could request a release," he said.
  • A court-appointed handwriting expert confirmed that it was Habré who responded to a request by the International Committee of the Red Cross for the hospitalization of certain prisoners of war by writing “From now on, no prisoner of war can leave the Detention Center except in case of death.”
  • Patrick Ball of the Human Rights Data Analysis Group presented a study of mortality in Habré’s prisons, based on the DDS’s own documents, concluding that prison mortality was “hundreds of times higher than normal mortality for adult men in Chad during the same period” and “substantially higher than some of the twentieth century’s worst POW contexts” such as German prisoners of war in Soviet custody and US prisoners of war in Japanese custody.
  • Experts from the Argentine Forensic Anthropology Team carried out exhumations at a number of potential mass grave sites. In Deli, in southern Chad, the site of an alleged killing of unarmed rebels in September 1984, the experts located 21 bodies, almost all military-age men, most of whom were killed by gunshot. In Mongo, in the center of Chad, the experts uncovered 14 bodies from another 1984 massacre.
  • Clement Abaifouta, the president of the Association of Victims of the Crimes of the Hissène Habré Regime, testified that he was forced to bury the bodies of deceased detainees in mass graves.
  • Souleymane Guengueng, the founder of the victims’ association, showed the court crude eating utensils he had carved in jail.
  • Robert Hissein Gambier, who survived five years in prison, earning the nickname “The man who runs faster than death,” said that he counted 2,053 detainees who died in prison. He brought wooden sticks to demonstrate how his head was squeezed as torture.
  • Abdourahmane Guèye, a Senegalese merchant imprisoned in Chad, testified that his release was won through diplomatic negotiations between the Senegalese and Chadian governments. His Senegalese companion, Demba Gaye, died, according to DDS documents, after being placed in the “cell of death” in the Locaux prison.
  • Mahamat Nour Dadji, the child of a close adviser to Habré, testified that the DDS director arrived at their home in Habré’s car saying, “The president needs you.” Dadji was detained with his father, who was never seen again.
  • Bichara Djibrine Ahmat testified that in 1983 he was taken with 149 other Chadian prisoners of war to be executed. Only he survived to take the truth commission 10 years later to find the mass grave. 

13. What was the defense lawyers’ strategy?

The court-appointed lawyers tried to show that Habré himself was not involved in committing crimes, and challenged the credibility of a number of witnesses, particularly those who implicated Habré directly. They asserted that the accusations against Habré were part of an exaggerated media and political campaign originated by Amnesty International and the Chadian truth commission, and then taken up by Human Rights Watch with the support of the current Chadian government.

The lawyers said that Habré was a patriot, committed to defending Chad against Libyan aggression and secessionist rebels. (“If it were not thanks to President Habré, Chad would not be Chad today, but a province of Libya.”) Habré’s response was to combat insurgents but not civilians. The DDS was not under his authority, but under the Interior Ministry. 

14. How was information about the trial disseminated?

The trial was recorded in its entirety, except for some technical problems. It was streamed live on the internet and broadcast on Chadian television. Almost all the sessions have been posted to the internet. Human Rights Watch considers this a major success in ensuring that the trial was meaningful to, and understood by, the people of Chad and Senegal. The landmark nature of this trial made it all the more important that it was available for viewing by the widest possible audience.

The chambers, through a consortium of non-governmental organizations from Senegal, Belgium and Chad that received a contract from the court, undertook outreach programs to both Chad and Senegal. The consortium has trained journalists in both countries, organized public debates, created a website and produced materials to explain the trial.

Human Rights Watch was part of a separate consortium of non-governmental organizations that facilitated the travel of Chadian journalists to Senegal to cover the trial, and the travel of Senegalese journalists to Chad during the pre-trial proceedings.

15. What is the maximum punishment Habré could receive if found guilty? 

If Habré is found guilty, the chambers could impose a sentence of up to life in prison. This is the punishment requested by chief prosecutor Mbacké Fall in his closing statement on February 10. The prosecution also requested the seizure of Habré’s property frozen during the inquiry - two small bank accounts and a property in an upscale Dakar neighborhood.

If Habré is sentenced to prison, he could serve that sentence in Senegal. However the statute also provides that he could serve it “in one of the African Union member States with which Senegal has entered into an agreement concerning the execution of prison sentences.”

16. What was the victims’ role in the trial?

Victims were permitted to participate in proceedings as civil parties. More than 4,000 victims registered as civil parties. Two teams of lawyers represented the civil parties, questioning witnesses, presenting evidence and participating in the closing statements.

The victims also left their mark on the trial through their long campaign for justice as well as their dramatic testimony. An opinion article in The New York Times reflected that “[n]ever in a trial for mass crimes have the victims’ voices been so dominant.”

17. Will the victims receive reparations?

Under its statute, in the event of a conviction, the chambers may order reparations against the accused. These can be paid into a victims’ fund, which can also receive voluntary contributions by foreign governments, international institutions, and non-governmental organizations. Reparations from the victims’ fund will be open to all victims, individually or collectively, whether or not they participated in Habré’s trial.

The chief judge, Gberdao Gustave Kam, has said that if Habré is found guilty, there will be a second set of hearings on damages for the civil parties

In July 2013, after the chambers arrested Habré, President Déby said that the Chadian government would compensate survivors and relatives of those who died. There is also a Chadian court judgment ordering the government to make reparations (see below). Chad’s responsibility under international law to provide reparations to victims of gross human rights violations is separate and distinct from reparations against the accused. 

18. Can there be an appeal?

Whether Habre is found guilty or acquitted, all parties in the trial – that is the prosecution, the accused and the victims with respect to their civil interests, could appeal. Although Habré does not recognize the Chambers’ authority, the court-appointed lawyers could lodge an appeal on his behalf. If an appeal is lodged by any party, an Extraordinary African Appeals Chamber would be constituted to hear the appeal. 

19. How are the Extraordinary Chambers structured and administered?

The Extraordinary African Chambers were created inside the existing Senegalese court structure in Dakar. The chambers have four levels: an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.

The chambers also have an administrator to ensure the smooth functioning of their activities and to handle all non-judicial aspects of the work. The administrator’s responsibilities include financial management of personnel, outreach and media information, witness protection and assistance, and judicial cooperation between Senegal and other countries, such as Chad. The administrator since the opening of the chambers has been Aly Ciré Ba, a Senegalese magistrate.

20. How were the prosecutors and judges assigned?

The prosecutors and investigative judges were nominated by Senegal’s justice minister and appointed by the chairperson of the AU Commission. The president of the Trial Chamber is Gberdao Gustave Kam of Burkina Faso. 

21. What about the trial in Chad of Habré-era security agents?

On March 25, 2015, a Chadian criminal court convicted 20 Habré-era security agents on charges of murder, torture, kidnapping and arbitrary detention, based on complaints filed by the same group of victims in 2000 but that were stalled until Senegal created the extraordinary chambers. During the Chad trial, about 50 victims described their torture and mistreatment at the hands of DDS agents. The court sentenced seven men to life in prison, including Saleh Younous, a former director of the DDS, and Mahamat Djibrine, described as one of the “most feared torturers in Chad” by the Truth Commission. Both men were also originally wanted for possible indictment by the chambers, but Chad declined to transfer them. Most of the 20 gave their testimony to the chambers when they visited Chad, but the Chadian government also refused to allow them to travel to Senegal to testify at trial. The Chadian court acquitted four others.

The Chadian court ordered the Chadian government to pay half of the US$125 million in reparations to 7,000 victims and those convicted to pay the other half. The court also ordered the government, within a year, to erect a monument to those who were killed under Habré and to turn the former DDS headquarters a museum. These were both among the long-standing demands of the victims’ associations. One year after the court decision, the Chadian government has not implemented any of these compensatory measures. 

22. How are the chambers funded?

The chambers are funded in large part by donor countries. In November 2012, Senegal and donor countries agreed to a budget of €8.6million (US$11.4 million at the time) to cover Habré’s trial. Commitments were made by: Chad (2 billion CFA francs or US$3,743,000), the European Union (€2 million), the Netherlands (€1 million), the African Union (US$1 million), the United States (US$1 million), Belgium (€500,000), Germany (€500,000), France (€300,000), and Luxembourg (€100,000). The Netherlands has also given extra support to the Outreach consortium. In addition, Canada, Switzerland, and the International Committee of the Red Cross have provided technical assistance. A Steering Committee chaired by the African Union and consisting of Senegal and the donors receives and approves periodic reports from the administrator.

23. What will happen to the Extraordinary Chambers after the trial?

The Extraordinary African Chambers will be dissolved once the judgment in the case of Hissène Habré is final.

24. What were the key steps in the campaign to bring Habré to justice?

In January 2000, inspired by the London arrest of the former Chilean dictator Augusto Pinochet, a group of Chadian victims filed a complaint against Habré in Senegal. In February of the same year, a Senegalese judge indicted Habré on charges of torture, crimes against humanity, and “barbaric acts.” However, after political interference by the new Senegalese government of President Abdoulaye Wade, which was criticized by two UN human rights rapporteurs, appellate courts dismissed the case on the ground that Senegalese courts lacked competence to try crimes committed abroad.

Other Habré government victims, including three Belgian citizens of Chadian origin, then filed a case against Habré in Belgium in November 2000. The Belgian authorities investigated the case for four years, then indicted Habré in 2005 and sought his extradition. A Senegalese court ruled that it lacked competence to decide on the extradition request.

Senegal then turned to the African Union, which in July 2006 called on Senegal to prosecute Habré “on behalf of Africa” before its own courts. President Wade accepted the AU mandate and Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. However, Wade contended that Senegal needed full up-front international funding of €27.4 million (US$36.5 million) before beginning any prosecution. Three years of halting negotiations over the trial budget ensued, until Senegal and donor countries finally agreed in November 2010 to a budget of €8.6 million (US$11.4 million) for Habré’s trial.

Just days before the budget agreement, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” In January 2011, the AU responded to the ECOWAS court ruling by proposing a plan for special chambers within the Senegalese justice system with some judges appointed by the AU. Senegal rejected the plan, and in May 2011, withdrew from negotiations with the AU over creation of the tribunal.

In July 2011, Senegal’s foreign minister ruled out holding Habré's trial in Senegal. The Chadian government then announced its support for extraditing Habré to Belgium to face trial.

In 2011 and 2012, Belgium issued three more extradition requests, which were not properly transmitted by the Senegalese authorities to its courts.

On July 20, 2012, in response to a suit brought by Belgium, the International Court of Justice (ICJ), the UN’s highest judicial organ, found that Senegal had failed to meet its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and ordered Senegal to prosecute Habré “without further delay” if it did not extradite him.

The new Senegalese government of Macky Sall reacted quickly to the ICJ decision, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment to begin proceedings quickly. Negotiations resumed between Senegal and the AU, ultimately leading to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. On December 17, the Senegalese National Assembly adopted a law establishing the special chambers. On February 8, 2013, the Extraordinary African Chambers were inaugurated in Dakar.

25. What is the significance of Habré’s prosecution under universal jurisdiction?

As demonstrated by the Habré case, universal jurisdiction is an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state when they cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before an international court. There has been an increase in the use of universal jurisdiction over the past 20 years, notably but not exclusively by courts in European countries. To strengthen the fight against impunity for the most serious crimes, it is critical for courts on all continents to use universal jurisdiction. The African Union has encouraged its member states to adopt legislation to give their national courts universal jurisdiction over war crimes, crimes against humanity and genocide and has taken steps to initiate a network of national prosecutors working on war crimes cases. Several investigations have been opened in South Africa and Senegal on the basis of universal jurisdiction.

26. How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?

Habré’s trial is an important step forward in African states taking responsibility to prosecute serious international crimes. However, the Habré trial does not negate the importance of the ICC and the use of universal jurisdiction by non-African states, including European courts, for crimes committed in Africa. These tools are often the only available hope for justice for African victims.

International justice has been applied unevenly. Powerful countries and their allies have often been able to avoid justice when serious crimes are committed on their territories, notably by failing to ratify the ICC treaty and wielding their political influence at the UN Security Council.

Nongovernmental organizations have actively campaigned for African governments to work to improve international justice and its reach —as opposed to undermining it— to limit impunity for atrocities. 

27. Why isn’t Habré prosecuted in Chad?

Chad never sought Habré’s extradition, and there are serious doubts that Habré could have gotten a fair trial in Chad, where he had been sentenced to death in absentia for his alleged role in a 2008 rebellion. In July 2011, President Wade threatened to expel Habré to Chad but, days later, retracted his decision in the face of an international outcry over the risk that Habré would be mistreated or even killed. 

28. Why couldn’t the International Criminal Court prosecute Habré?

The International Criminal Court only has jurisdiction over crimes committed after July 1, 2002, when its statute entered into effect. The crimes of which Hissène Habré is accused took place between 1982 and 1990.

Posted: January 1, 1970, 12:00 am

(Dakar, September 4, 2015) – The trial of the former Chadian dictator Hissène Habré on charges of crimes against humanity, war crimes, and torture will begin in earnest on September 7, 2015.

The long-awaited trial of Hissène Habré, was adjourned almost as soon as it was opened, as an outburst from the former dictator of Chad caused a scene in the courtroom.

When the landmark trial before the Extraordinary African Chambers in the Senegal court system formally opened on July 20, Habré had to be removed from court after an outburst. Habré’s lawyers then refused to appear and the trial was adjourned, giving new court-appointed lawyers time to study the case.  

“After 25 years of campaigning and 45 days waiting patiently, the survivors will finally get their day in court,” said Reed Brody, counsel at Human Rights Watch who has worked with the victims since 1999. “Hissène Habré may try to create more disturbances, but he does not get a veto on whether he should be tried, or if the victims get justice.”

Habré has refused to communicate with the court-appointed lawyers, and it is expected that he will try to have them taken off the case. The president of the court, Gberdao Gustave Kam, has made clear, however, that in keeping with Senegalese law and international practice, the lawyers are needed to safeguard the rights of the accused and the integrity of the proceedings.

Habre is accused of tens of thousands of political killings as well as systematic torture during his rule, from 1982 to 1990. The trial is the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes.

Habré is standing trial before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré ruled Chad. Judge Kam, of Burkina Faso, president of the Trial Chamber, will hear the case along with two senior Senegalese judges.

The trial is expected to last two months, with about 100 witnesses and victims expected to testify.

“If I get a chance to look Hissène Habré in the face, I will do it without fear,” said Fatimé Sakine, 53, a secretary who was subjected to electroshocks and beatings during 15 months in prison from 1984 to 1986 and who is in Dakar for the trial. “I want to know why we were kept rotting, why so many of my friends were tortured and killed.”

“This case is a milestone in the fight to hold the perpetrators of atrocities accountable for their crimes, in Africa and in the world,” Brody said. “It's taken many years, and many twists and turns, but in the end a group of tenacious survivors have shown that it was possible to bring their dictator to justice.” 

Posted: January 1, 1970, 12:00 am

(Dakar, July 17, 2015) – The trial of Chad’s former dictator Hissène Habré is a victory for the victims of his government. The trial began in Senegal on July 20, 2015, almost 25 years after he was overthrown.  

The trial of Chad’s former dictator Hissène Habré is a victory for the victims of his government. The trial will begin on July 20, 2015, almost 25 years after he was overthrown.

 
“The opening of Hissène Habré’s trial, 25 years after he fled Chad, is a tribute to the survivors of his brutal rule who never gave up fighting for justice,” said Reed Brody, counsel at Human Rights Watch who has worked with the victims since 1999. “This case warns despots everywhere that if they engage in atrocities they will never be out of the reach of their victims.”

Habré is charged with crimes against humanity, torture, and war crimes. The trial will be the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes.

 
Habré will stand trial before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré ruled Chad. Judge Gberdao Gustave Kam of Burkina Faso, president of the Trial Chamber, will hear the case along with two senior Senegalese judges.

The trial is expected to last three months, with about 100 witnesses and victims expected to testify.

Habré, through his lawyers, has said that he does not want to appear in court. Under Senegalese law, however, the court president can require his appearance. 

“I have been waiting for this day since I walked out of prison almost 25 years ago, “ said Souleymane Guengueng, who nearly died of mistreatment and disease in Habré’s prisons, and later founded the Association of Victims of Crimes of the Regime of Hissène Habré (AVCRHH). “I want to look Hissène Habré in the face and ask him why I was kept rotting in jail for three years, why my friends were tortured and killed.”

Habré is accused of thousands of political killings and systematic torture. After he was deposed by the current president, Idriss Déby Itno, in 1990, Habré fled to Senegal. Habré was first arrested in Senegal in February 2000, but Senegal refused to prosecute him then or to extradite him to Belgium in 2005. It was only in 2012, when Macky Sall became president of Senegal and the International Court of Justice, acting on a suit by Belgium, ordered Senegal to prosecute or extradite Habré that progress was made toward the trial with the creation of the Extraordinary African Chambers. The chambers indicted Habré in July 2013 and placed him in pretrial custody. After a 19-month investigation, judges of the chambers found that there was sufficient evidence for Habré to face trial.

“This case is a milestone in the fight to hold the perpetrators of atrocities accountable for their crimes, in Africa and in the world,” Brody said. "It's taken many years, and many twists and turns, but in the end a group of tenacious survivors showed that even a dictator can be brought to justice." 

On March 25, a court in Chad convicted 20 top security agents of Habré’s government on torture and murder charges. 

Posted: January 1, 1970, 12:00 am

Richard Dicker, director of Human Rights Watch's international justice program since it was founded in 2001, has worked at Human Rights Watch since 1991. He started working on international justice issues in 1994 when Human Rights Watch attempted to bring a case before the International Court of Justice charging the government of Iraq with genocide against the Kurds. Dicker later led the Human Rights Watch multi-year campaign to establish the International Criminal Court (ICC). He continues to be closely involved on issues that are important at the ICC. He has also spent the past few years leading advocacy efforts urging the creation of effective accountability mechanisms. He monitored the Slobodan Milosevic trial in The Hague and made many trips to Iraq before and at the start of Saddam Hussein's trial. A former civil rights attorney in New York, Dicker graduated from New York University Law School and received his LLM from Columbia University.

Posted: January 1, 1970, 12:00 am

As Co-Director of the US Program, Maria McFarland Sánchez-Moreno guides Human Rights Watch’s work on criminal justice, drug policy, immigration, national security, and surveillance in the United States.

Previously, as Deputy Washington Director for Human Rights Watch, McFarland Sánchez-Moreno conducted advocacy before the US government on a wide array of global human rights issues, including matters related to the Middle East and North Africa during the “Arab uprisings” of 2011. Earlier, she held the position of Senior Americas Researcher, covering Colombia's internal armed conflict and working on the extradition and trial of former Peruvian President Alberto Fujimori.

McFarland Sánchez-Moreno is the author of the narrative non-fiction book There Are No Dead Here: A Story of Murder and Denial in Colombia, forthcoming from Nation Books in February 2018. She holds a law degree from New York University School of Law and did most of her undergraduate studies in Lima, Peru, before completing her BA at the University of Texas at Austin. She is a native speaker of both Spanish and English.

Multimedia

"Your Reaction to NSA Curbs," on BBC World Service’s “World Have Your Say” (January 2014)

"Deadly Threats: Successors to the Paramilitaries in Colombia ," (February 2010)

Posted: January 1, 1970, 12:00 am
Posted: January 1, 1970, 12:00 am

(New York) – The United Nations Security Council has missed a key opportunity to address war crimes and rights abuses by all sides to the conflict in Iraq, Human Rights Watch said today. The council unanimously adopted a resolution on September 21, 2017, that establishes an investigative team to collect and preserve evidence of serious crimes allegedly committed by the extremist group Islamic State (also known as ISIS) – which is needed – but fails to include within its mandate abuses by anti-ISIS forces.

Heads of state and their representatives take part in a meeting of the United Nations Security Council to address the situation in the Middle East during the General Assembly for the 71st session of the U.N. General Assembly at U.N. headquarters in New York, September 21, 2016. © 2016 Reuters

“No one denies the importance of tackling the widespread atrocities by ISIS in Iraq, but ignoring abuses by Iraqi and international forces is not only flawed, it’s shortsighted,” said Balkees Jarrah, senior international justice counsel at Human Rights Watch. “The pursuit of justice is essential to all victims who saw their loved ones tortured and killed, or houses burned and bombed, regardless of who is responsible.”

The resolution mandates the UN secretary-general to establish an investigative team headed by a special adviser to collect and preserve evidence of war crimes, crimes against humanity, and genocide by ISIS members in Iraq, for anticipated use in future criminal proceedings in Iraq or possibly in other national courts. It stipulates that “any other uses” of the evidence collected by the team is to be “determined in agreement with the Government of Iraq on a case by case basis.”

However, the team can and should play a positive role in advocating for federal Iraqi and Kurdistan Regional Government (KRG) authorities to bring charges against ISIS suspects for the full range of crimes they have committed, improve respect for due process rights of suspects and detainees, and to take a more victim-centered approach to national accountability efforts. It can and should seek to convince the Iraqi government to allow it to broaden the investigations to include abuses by all sides in the conflict.

An initiative aimed at documenting serious crimes by ISIS is a positive first step to support accountability efforts in Iraq, Human Rights Watch said. ISIS forces in Iraq have carried out human rights abuses, war crimes, crimes against humanity, and what the UN-mandated Commission of Inquiry on Syria found to be genocide. Human Rights Watch has repeatedly called for international support for efforts to bring ISIS members to justice. But beyond ISIS atrocities, Iraq urgently needs investigations of serious crimes by all sides to the conflict.

The United Kingdom submitted the resolution after working closely with the Iraqi government to establish an investigative body for ISIS crimes in Iraq through the Security Council. Their discussions began in September 2016 after the United Kingdom, together with Iraq and Belgium, began a global campaign at the UN General Assembly to bring ISIS to justice.

The UK decided to formally move forward with the draft resolution in August after receiving Iraq’s consent through a letter to the Security Council. Iraq made clear that it was working with the UK on a resolution “in line with Iraq’s national sovereignty and jurisdiction at both the negotiation and implementation stages.”

Iraqi authorities face a complex task to bring to justice ISIS suspects. Iraq is prosecuting thousands of detainees under counterterrorism legislation, for crimes tied to their affiliation with ISIS. However, Human Rights Watch research has found that abuse is rampant in the detention of ISIS suspects and that serious due process violations are undermining the judicial proceedings. Iraqi authorities are not charging any suspects for serious international crimes such as crimes against humanity, war crimes, or genocide, which are not criminal offenses under Iraqi law, or even rape or slavery, which are. The authorities have made no efforts to solicit victims’ participation in the trials.

Iraq is also not a member of the International Criminal Court (ICC). Prime Minister Haider al-Abadi told Human Rights Watch in March 2016 that Iraq has no plans to join – out of apparent concern that the court would be able to examine grave abuses by government security forces.

The European Union and the UN human rights office have called on Iraq to join the ICC, which would allow for possible prosecution of serious crimes by all parties to the conflict.

While abuses by Iraqi and KRG forces, as well as historically Shia military units regularized into state forces known as the Popular Mobilization Forces, have been longstanding, the battle against ISIS has given these forces latitude to carry out abuses under the guise of fighting terrorism.

During operations to retake Mosul, Iraqi forces frequently tortured and executed those captured in and around the battlefield with complete impunity, sometimes posting photos and videos of the abuses on social media sites. Since 2014, KRG and Iraqi Popular Mobilization Forces units have also carried out widespread destruction of civilian property in Sunni areas recaptured from ISIS.

Despite repeated promises to investigate wrongdoing by security forces, al-Abadi has yet to demonstrate that Iraqi authorities have held a single soldier accountable for murdering, torturing, or otherwise abusing Iraqis in this conflict. As far as Human Rights Watch has been able to determine, Iraqi and KRG courts have not opened investigations into the vast majority of human rights abuses by Iraqi army, federal police and PMF forces, and Kurdish and other anti-ISIS security forces in their battle against ISIS.

The lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups at a moment when the Iraqi government has a unique opportunity to move the country toward meaningful reconciliation, Human Rights Watch said.

The resolution that establishes the ISIS-focused investigative team stipulates that evidence the team collects should be used in “fair and independent criminal proceedings, consistent with applicable international law,” and that the team should act consistent with its terms of reference, the UN Charter, and UN best practice. It does not explicitly exclude the use of evidence in proceedings that allow for the death penalty, one of only two penalties laid out in the federal Iraqi counterterrorism law, as well as a sentence KRG judges have handed down for counterterrorism convicts within the KRG judicial system.

Human Rights Watch opposes capital punishment in all countries and under all circumstances. Capital punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error. A majority of countries in the world have abolished the practice.

The resolution asks the UN secretary-general to prepare, within 60 days, terms of reference “acceptable to the Government of Iraq” to guide the investigative team’s work for the Security Council’s approval. The Security Council stipulates that the terms of reference should specify the appointment of Iraqi investigative judges and other criminal experts to the team to work “on an equal footing alongside international experts”.

Though the Security Council resolution notes that the team should complement Iraqi investigations, it is unclear how its work will, in practice, interact with ongoing investigations by federal Iraqi and KRG security forces, as well as other nongovernmental efforts in Iraq to document ISIS crimes. The investigative team should ensure that its own efforts are not duplicative, at the risk of re-traumatizing victims and witnesses, and do not significantly delay the application of justice, to the detriment of victims as well as detainees being held in inhumane conditions.

“The real test for this new UN-mandated investigation is whether it can help Iraq end the rampant impunity in the country that has fed into the endless cycles of violence,” Jarrah said. “Ensuring justice for ISIS crimes – however essential – is not enough. What Iraq needs is a much more comprehensive approach that ends the selective prosecutions for abuses that have plagued the country for decades.”

Posted: January 1, 1970, 12:00 am

Iraqi Ministry of Transportation buses taking internally displaced families to Hammam al-Alil in May 2017. In late August, Iraqi authorities bused 1,400 foreign women and children to the site. 

© 2017 Belkis Wille/Human Rights Watch
 

(Beirut) – Iraqi authorities are holding more than 1,400 foreign women and their children who surrendered with ISIS fighters in late August 2017, Human Rights Watch said today. The detentions appear to have no legal basis and none of the detainees has been brought before a judge to assess the legality and necessity of their detention. The authorities should promptly charge or safely release them and confirm the whereabouts of up to 200 men and teenage boys, many foreign, who surrendered during the same period.

Beginning on August 30, Iraqi authorities detained the women and children next to a displaced persons camp in the town of Hammam al-Alil, 30 kilometers south of Mosul, then transferred them on September 17 to an informal detention site in Tal Kayf, 10 kilometers north of Mosul.

“Hundreds of foreign children risk being abandoned in a hellish twilight zone, with no legal identity and no country willing to take them,” said Bill Van Esveld, children’s rights researcher at Human Rights Watch. “Iraq, foreign countries, and international organizations should not let these children fall into statelessness, or consign them and their mothers to detention without charge.”

On September 10 and 11, Human Rights Watch visited the fenced Hammam al-Alil site, consisting of 17 large warehouse-style tents, which was controlled by Iraqi forces. Researchers conducted individual and group interviews with 27 foreign women. The family groups interviewed included no boys over 12 and no men. Two women were visibly pregnant, and dozens of children appeared to be under age 3.

The women and international humanitarian agency staff there said they included Afghan, Azerbaijani, Chinese, Chechen, Iranian, Russian, Syrian, Tajik, Trinidadian, and Turkish nationals. Reuters reported that they also included Algerian, French, and German nationals. Some women had identification documents but most said they did not. Most said they had traveled from their home countries to Turkey, then crossed into Syria before entering Iraq. Most of the children, particularly young children born in Iraq, had no birth certificates or ID documents.

One of the entry stamps in a Syrian woman’s passport who said she had entered Iraq lawfully, who was being held at the Hammam al-Alil site on September 10, 2017. Most women and children at the site had no identification documents.

© 2017 Bill Van Esveld/Human Rights Watch

An Iraqi military intelligence official who declined to give his name told Human Rights Watch at the site on September 10 that the women and children were being held “for their own protection.” There is no legal power under Iraqi law to detain people on this basis, nor is it legal to detain individuals merely because a spouse or parent was a member of the Islamic State, also known as ISIS. Under international law, Iraqi authorities may detain children only as a measure of last resort, and all detention needs to have a clear legal basis, be decided on an individual basis, and all detainees should be brought promptly before a judge to assess the legality and necessity of their detention.

In late August, the foreign women and children fled a military offensive that retook the Iraqi town of Tal Afar from ISIS, and surrendered to Kurdistan Regional Government (KRG) Peshmerga military forces, who held them temporarily in a school before handing them to Iraqi forces, said international humanitarian officials and the women.

Women interviewed by Human Rights Watch said that men and boys over 12 were separated, their hands tied, and lined up against a wall inside the school compound. Women who were there on August 28 said that a woman carried out a suicide attack at the school that day, after which the Kurdish forces killed six males, possibly including two boys, who were being held separately just outside the school compound. When the women were moved to Hamman al-Alil on August 30, the men remained and the women did not know what happened to them.

On September 17, Iraqi military officers and Transport Ministry officials arrived at Hamman al-Alil, loaded the women and children onto buses against their will and left with them, saying they had orders from Baghdad to move them to a military intelligence detention site in Tal Kayf, humanitarian officials who were there told Human Rights Watch. Iraqi authorities did not give them advance notice or say where the families were being taken. It is not clear if the women currently have access to humanitarian assistance and protection monitoring, which is cause for concern, Human Rights Watch said.

Col. Ahmed al-Taie from Mosul’s Nineveh Operation command told Reuters on September 10 that the Iraqi army was holding the women and children under “tight security measures” while “waiting for government orders” as to how to deal with them, including women he described as having been “deluded” by “vicious IS [Islamic State] propaganda.”

On September 12, the Norwegian Refugee Council stated that it would no longer manage the Hammam al-Alil site, where Iraqi military forces were present, because it could not be considered a humanitarian facility.

A KRG spokesman confirmed the suicide attack on August 28, but denied that Peshmerga forces had carried out the alleged extrajudicial killings. He said Peshmerga forces shot a man on August 30 because he was armed and carrying a bomb and threatened to kill a Yezidi captive and Peshmerga forces. The official said the Peshmerga had turned over to Iraqi security forces all the people who surrendered. Bodies found in Mosul since October 2016 suggested some Iraqi forces had extrajudicially killed suspected ISIS members there.

On September 16, Prime Minister Haider al-Abadi of Iraq stated in an interview that most of the women and children were not guilty of a crime, and that his government was “in full communication” with their home countries to “find a way to hand them over.” Human Rights Watch confirmed with humanitarian sources on September 18 that none of the women and children detained since late August at the Hammam al-Alil site had been repatriated.

Iraqi and KRG criminal justice authorities should investigate all alleged crimes, including unlawful killings, by any party to the conflict in a prompt, transparent, and effective manner, up to the highest levels of responsibility. Those found criminally responsible should be appropriately prosecuted.

Iraq should confirm the whereabouts of the missing men and boys, prioritize prosecution of ISIS members found to have committed the worst abuses, and consider alternatives to prosecution for people whose only alleged crime is ISIS membership or who entered Iraq illegally through Syria.

The Iraqi authorities should clarify the legal basis for holding the women and children, ensure all detainees are either charged with a crime and brought promptly before a judge, or immediately released, and are informed of their right to request consular assistance if they choose. Many of the foreign women apparently entered Iraq illegally, but not all are necessarily ISIS members. Iraq should work with international agencies to safely return foreign women who are not charged with a crime to their home country while considering the best interests of their children, taking into account the possibility that the mothers might be imprisoned. The government and international agencies should urgently identify durable solutions, including resettlement to third countries, for released women and children who cannot safely return to their home countries, including Syrian nationals.

While Iraq is responsible for ensuring the safety and security of the women and children, their home countries’ and other foreign embassies have a key role to play in finding durable solutions, including potential third country resettlement.

“The Iraqi government should ensure the women’s safe repatriation, asylum or resettlement if they release them, or fair trials if it charges them with violating Iraqi laws,” Van Esveld said. “It would be a terrible irony if children, who were notoriously victimized by ISIS, were forced to pay with their future for ISIS’s crimes.”

Fleeing Tal Afar
ISIS took control of Tal Afar in June 2014. Iraqi forces opened an offensive on August 20, 2017, and retook control of the city and the eastern parts of the district from ISIS fighters on August 26, and the rest of the province in late August. A United Nations humanitarian update published on August 29 reported that 20,000 people fled the area between August 14 and 22, but that 1,500 who remained in the city attempted to flee on August 26.

The women Human Rights Watch interviewed said they fled fighting in Tal Afar at various times on or after August 26, in groups ranging from about 20 to hundreds of people. The majority were foreign women and children, but there were smaller numbers of older, wounded, or fighting-age men. Most women said their husbands were also non-Iraqi, and had been killed in fighting in Mosul or more recently in Tel Afar. Many had lived in the al-Askari neighborhood in Tal Afar.

Those fleeing found themselves stuck in a zone between Iraqi forces advancing from the south and a front line held by Kurdish Peshmerga forces in the north. All the women interviewed said they had surrendered to Peshmerga forces, who later transferred them to the custody of Iraqi forces.

The women described passing the town of Ayadiya, 17 kilometers north of Tal Afar, before meeting Kurdish forces, in an area of active fighting along a route strewn with landmines. Five of the women said they saw body parts or dead people along the route and some said that they saw incoming fire that killed some people fleeing. In most cases they could not attribute the source of the attacks. One woman said she saw a 12-year-old boy hit by a gunshot that blew off his leg below the knee. Another woman said that she saw a helicopter fire on a group fleeing ahead of her.

Surrender to Kurdish Forces, and Alleged Killings of Boys and Men
The women consistently said that Peshmerga soldiers gave them water and food, and facilitated the evacuation of some of the wounded and sick in ambulances. Some women said the soldiers took their money or gold. All the women said that when they surrendered, Peshmerga soldiers separated women from men and boys ages 13 or 14 and older, and took everyone to an empty school compound, apparently in the village of Saleh al-Malih. At the school, the Peshmerga placed the women, girls, and younger boys in classrooms, and the men and older boys along the inside of one of the walls that enclosed three sides of the compound, with their arms tied behind their backs.

Women who were there on the afternoon and evening of August 28 described seeing between 150 to 200 men and boys on the inside of the compound wall. Two women said they saw an older, heavy-set man with white hair, wearing a red T-shirt, lying unmoving on the ground for hours and apparently dead, among the men and boys seated next to the wall. They said a Peshmerga soldier walked back and forth in front of the men and boys, hitting them with his belt. Three women also said that they saw a group of around 20 men in their 20s and 30s, whom they described as ISIS soldiers, with arms tied, outside an earth mound along the fourth side of the compound.

These women said they arrived at the school at around 10 or 11 a.m. and that at around 1 p.m., a foreign woman who was apparently being checked by female Peshmerga soldiers at the school entrance detonated a bomb she was wearing or carrying, killing and wounding Peshmerga soldiers and displaced people. A KRG official said the bombing killed three soldiers. A UN report stated that a suicide bomber killed a child and two women and wounded 11 people, including 6 civilians. One witness had a small scar on her face and a bandage on her left forearm, which she said were from injuries caused by the explosion.

Two women, interviewed separately, said that minutes later, they saw Peshmerga soldiers shoot at least six men near the earth berm. The women did not know the victims or whether any were children, but “two of them were young and the other four had beards,” one woman from Syria said. They said the men’s arms were tied and that they did not appear to pose a threat. Three other women also described hearing an explosion, followed within 5 to 10 minutes by gunshots. The women said that shortly afterward, a Peshmerga soldier in a white flatbed truck drove with the men’s dead bodies around the school compound, and that they saw soldiers put the remaining members of the group of men outside the berm onto other trucks and drive away with them. It is not known what happened to the men.

In a separate incident, a Syrian woman in her 20s said that Peshmerga forces shot her husband, who was Turkish, and another Turkish man, both ISIS members, after they surrendered on August 30:

 

My husband had told the Kurds that he would surrender us and give back our Yezidi slave girl, and they told him we could go to Turkey, but then we surrendered and he was talking with another [ISIS member]. I was six meters away from him. I heard gunfire and turned around and his bloody body was on the ground. The other [ISIS member] started running and they shot him down.

 

In response to Human Rights Watch, a KRG spokesperson stated that “government sources strongly reject the allegation” that Peshmerga forces extrajudicially executed men at the school at Saleh al-Malih on August 28. He said Peshmerga had unsuccessfully attempted to negotiate with the woman suicide bomber, who killed three soldiers and wounded two. On August 30, the spokesperson said, Peshmerga forces, who had been alerted by a Yezidi woman’s family that she was being held captive, shot and killed her Turkish captor when he arrived at their lines, threatening to kill her.

Transfer to Iraqi Forces; Disappearances of Men, Boys
The women said that Peshmerga soldiers held them at the school compound for varying amounts of time, not exceeding 24 hours, then loaded them and their younger children onto buses that took them to areas under the control of Iraqi forces, and ultimately to the Hammam al-Alil site. The military forces in control of the busses were Iraqi, not Peshmerga, soldiers.

The women described a large convoy of more than a dozen buses. Some women said that older men or wounded men were loaded onto the buses as well, but that most passengers were women and young children.

The women said that was the last they saw of the men and boys held along the school wall. Human Rights Watch interviewed women who were relatives of Turkish men ages 20, 43, 73, and around 45; an Azeri man in his 40s; and a Trinidadian man of 53 who last saw them at the school compound and do not know their whereabouts. Two Syrian women named eight women, four Syrian and four Azerbaijani, they last saw at the compound who had not turned up in Hammam al-Alil, and whose whereabouts they didn’t know.

Several women said Iraqi forces stopped their buses at checkpoints on the way to Hammam al-Alil, screened the passengers, and removed suspected ISIS members. At one of these stops, one woman said, a person whose identity was obscured by a mask identified 10 men and boys who were taken away by security forces that she could not identify, before the buses continued. A second woman said that Iraqi forces took her and other bus passengers into an empty building that was still under construction for screening.

Another woman, who was on a different bus, said that after it had passed two checkpoints, Iraqi security forces stopped it at a checkpoint in Hamdaniya, a Christian town 16 kilometers northeast of Hammam al-Alil, where a masked informant pointed out her Iraqi husband, age 56. A soldier took him and three other men from the bus to a prefabricated caravan at the checkpoint, and another soldier told her, “If he is innocent they’ll let him go.”

The woman, 39, has four young children, and insisted that her husband was not an ISIS supporter, and that the family had been in Mosul when ISIS took the city and had been unable to flee. Once the United States-led coalition started carrying out heavier airstrikes on Mosul, the family fled to Tal Afar, she said, where ISIS forces refused to let them leave.

According to international legal principles on the treatment of prisoners, Iraqi authorities have a duty to inform the families of the men who were taken off the buses, and to treat them humanely – regardless of whether they are ISIS supporters. Some Iraqi units have a record of enforced disappearances and executions of suspected ISIS members.

Treatment of the Women, Children
News media reported that Iraqi officials said Iraq was negotiating with the women’s home countries for their return. Human Rights Watch received information that the Azerbaijan embassy was pursuing the return of its nationals among the detained women and children.

Iraqi authorities should notify the women that they have the right to request consular support, and contact and facilitate consular access for women who wish to do so, while ensuring that women are not arbitrarily separated from their children except based on the determination that doing so would be in the child’s best interest. Iraqi authorities should ensure that women and children are not deported or repatriated if they would be at risk of persecution, torture, or unfair trials for their alleged Islamic State affiliation.

Iraqi authorities should protect the women and children from reprisal attacks, but not detain them or prohibit their freedom of movement unless they are suspected of specific crimes and have judge-issued warrants against them. Iraqi authorities and authorities in the women’s home states, if they are returned, should prioritize prosecutions for involvement in serious crimes.

Iraqi authorities should facilitate humanitarian access to them and their children, and ensure access to medical care and decent living conditions.

Posted: January 1, 1970, 12:00 am

Burmese soldiers patrol a road in Maungdaw, Rakhine State, August 31, 2017.

© 2017 Soe Zeya Tun/Reuters

(New York) – The United Nations Security Council and concerned countries should impose targeted sanctions and an arms embargo on the Burmese military to end its ethnic cleansing campaign against Rohingya Muslims, Human Rights Watch said today. Since August 25, 2017, after attacks by the Arakan Rohingya Salvation Army (ARSA), Burmese military forces have carried out mass arson, killing, and looting, destroying hundreds of villages and forcing nearly half a million Rohingya to flee to neighboring Bangladesh.

World leaders gathering in New York for the opening of the UN General Assembly should make the crisis in Burma a priority and condemn the ongoing atrocities and obstruction of humanitarian aid to those desperately in need. The Security Council should urgently place a travel ban and asset freeze on those responsible for grave abuses and impose a comprehensive arms embargo against Burma, including prohibiting military cooperation and financial transactions with key military-owned enterprises.

Burmese security forces are committing ethnic cleansing against the Rohingya.... The time has come to impose tougher measures that Burma’s generals cannot ignore.

John Sifton

Asia Advocacy Director

“Burmese security forces are committing ethnic cleansing against the Rohingya and disregarding the condemnation of world leaders,” said John Sifton, Asia advocacy director. “The time has come to impose tougher measures that Burma’s generals cannot ignore.”

The Security Council should also demand that Burma allow humanitarian aid agencies to access people in need, permit entry to a UN fact-finding mission mandated to investigate violations in the country, and ensure the safe and voluntary return of those displaced.

As a first step, the Security Council should hold an open meeting to discuss council responses. The council should invite UN Secretary-General António Guterres to brief on the crisis in western Burma’s Rakhine State, which the UN high commissioner for human rights has referred to as a “textbook example of ethnic cleansing.” The council should also discuss measures to bring those responsible for serious abuses to justice, including before the International Criminal Court.

Concerned governments should not wait for Security Council action to address the human rights and humanitarian crisis in Burma. They should impose travel bans and asset freezes on security officials implicated in serious abuses; expand existing arms embargoes to include all military sales, assistance, and cooperation; and place a ban on financial transactions with key Burmese military-owned enterprises.

The United States government should place the senior leadership of the Burmese military, notably commander-in-chief Sr. Gen. Min Aung Hlaing, on the US Specially Designated Nationals (SDN) list, which cuts off access to US financial institutions, restricts travel to the US, and freezes US assets. The European Union and its member countries should expand or impose similar targeted economic and travel sanctions, and extend the existing EU arms embargo against Burma to include all forms of military assistance. Similar measures should be taken by other concerned governments, including Japan, Norway, South Korea, Canada, and Australia.

Rohingya Crisis

Rohingya Crisis

Human Rights Watch reporting from the ground on the Burmese military’s ongoing campaign of ethnic cleansing.

“Burma’s senior military commanders are more likely to heed the calls of the international community if they are suffering real economic consequences,” Sifton said. “It hits those responsible for ethnic cleansing where it hurts.”

Human Rights Watch analyzed a series of satellite images recorded between August 25 and September 16 that showed over 220 villages destroyed by fire in northern Rakhine State since the violence started. Rohingya villagers who have fled to Bangladesh have described Burmese security forces shooting villagers and setting fires to homes. The Burmese government alleges that ARSA fighters and Rohingya villagers are responsible for the buildings burned, but has so far failed to provide evidence of this claim.

Any ARSA commanders who are credibly implicated in serious abuses should also face sanctions.

Ethnic Rohingya Muslims fleeing Burmese security forces in Burma’s Rakhine State have described killings, shelling, and arson in their villages that have all the hallmarks of a campaign of “ethnic cleansing." 

Posted: January 1, 1970, 12:00 am

Stockholm District Court, where most of Sweden’s war crimes cases are adjudicated.

© Balkees Jarrah/Human Rights Watch

The photograph is disturbing. A young man in military fatigues is standing on dead bodies looking victorious. The posture of the Syrian soldier, with a grin suggesting pride and his military boot on a victim’s chest, suggests domination. A hunter with his prey. Except the prey is a man wearing civilian clothes with blood on his head.

The Syrian conflict has generated an endless stream of horrible photos and footage. It is often described as the first YouTube war – with little professional journalistic coverage but non-stop footage of abuses captured by locals’ phones. From the shaky footage of soldiers and shabbiha beating and torturing detainees in the early days to the slick and sick ISIS productions of executions, one common thread runs through these videos: their utter dehumanization of the victims.

Why did the soldier have himself photographed in this posture? To spread fear among his enemies, brag to his friends, or create a souvenir for himself? What we know is that he did it because he believed – like all the others who film themselves committing horrible crimes – he would get away with it.

And he would have, if not for Syrian activists and prosecutors in Sweden. On September 14, Swedish prosecutors charged the soldier, identified as Muhammad Abdullah, with violating the laws of war. An informal group of Syrian activists tracked Abdullah down in Sweden based on his Facebook postings and brought him to the attention of the prosecutors.

In Sweden, investigators and prosecutors have used their domestic criminal law, based on the legal principle known as “universal jurisdiction,” to prosecute certain international crimes committed in Syria. Investigating crimes that take place outside your jurisdiction is not easy. A Swedish prosecutor’s initial effort to bring charges against Abdullah last year for the execution of the men he stands atop in the photo failed for lack of evidence. Yesterday’s indictment uses existing evidence to charge him for “outrage upon personal dignity,” defined to include humiliating, degrading, or otherwise violating the dignity of a dead body.

Pursuing accountability for violating the dignity of a dead body may strike some as marginal in the carnage that is Syria. The opposite is true. By recognizing the inherent dignity of the victims even after their death, the Swedish prosecutor is challenging the collective indifference to Syrians’ fate. Syrian victims are mostly faceless, briefly appearing in the media as statistics. Reminding people that even the dead have dignity is a small but worthy effort to bring back some humanity to the Syrian conflict. The trial is scheduled for September 18. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Summary

Since May 2017, new evidence has become public corroborating longstanding allegations that Peru’s former president Ollanta Humala Tasso (2011-2016) would be responsible for egregious human rights violations committed by security forces in the early 1990s, during Peru’s internal armed conflict. The evidence concerns crimes committed by soldiers based in Madre Mía in the Alto Huallaga region.

This report provides an overview of that evidence, concluding that it credibly implicates Humala directly in the commission of atrocities and the attempted cover-up of incriminating evidence when he ran for president, and requires robust follow up by Peru’s prosecuting authorities. This new evidence provides a unique opportunity for Peru to clear its longstanding debt to many armed conflict victims who are still waiting for justice.

Human Rights Watch conducted our own research, interviewing victims and witnesses of violations in which Humala is implicated, the prosecutor in charge of the investigations, and a former high-level official working for the Defense Ministry. We also spoke at length with a journalist who interviewed some of the soldiers who were eyewitnesses to or participated in the crimes. Human Rights Watch also reviewed formal judicial statements that soldiers, victims, and witnesses gave to investigating prosecutors in the Attorney General’s Office, as well as media interviews by several different soldiers attesting that Humala was in command at Madre Mía at the time atrocities were carried out there, and that he often gave orders to soldiers to commit crimes.

New evidence has emerged that credibly implicates former President Ollanta Humala Tasso (2011-2016) in atrocities during Peru’s armed conflict in the 1990s.

In May 2017, several soldiers acknowledged on Peruvian TV that they had tortured, killed, and forcibly disappeared people during military operations against armed groups in the 1990s. They claimed to have done so under orders from—and sometimes in the presence of—Humala, who was stationed at a military base in the Alto Huallaga region in 1992 under the pseudonym “Captain Carlos.” In testimony provided to judicial authorities and interviews with Human Rights Watch and the media, several victims have also implicated Humala in violations. Some soldiers and civilians also reported that people close to Humala attempted to cover up these crimes when he ran for president in 2006.

Several soldiers who claim to have served under Humala’s command said on television that they had killed detainees, then dismembered their bodies, filled them with rocks, and threw them into the Huallaga river. One soldier said he was told to torture men and children, kill them, and burn their bodies in a field. Another claimed to have witnessed soldiers burning a peasant alive, and raping three women after Humala told the soldiers the women were “gifts” and they “could do whatever they wanted with them.” A third stated that, under orders from Humala, soldiers had detained 18 people accused of being terrorists, tied their hands and feet, and buried them alive. Some of the soldiers have also made formal statements to prosecutors and are currently under a witness protection program.

One of the soldiers said Natividad Ávila who, together with her husband, Benigno Sullca Castro, was forcibly disappeared in June 1992, was initially held at the Madre Mía base in the Alto Huallaga region. Natividad’s brother, Jorge Ávila, who was also detained at the base, said soldiers had subjected him to electric shocks while forcing his head into water and asking if he was a Shining Path leader. Jorge Ávila managed to escape after five days, but Sullca Castro’s body was found in the middle of the Huallaga river with a bullet hole in his forehead. Natividad Ávila’s whereabouts remain unknown.

A soldier stationed at the Madre Mía base, Jorge Ávila, and Ávila’s sister, who had gone to the base to ask about the whereabouts of her missing relatives soon after their detention, all said “Captain Carlos” was in charge of the base at the time.

Since the soldiers’ testimony aired, other victims or their families have also publicly identified Humala as being “Captain Carlos” and accused him of committing egregious violations, including killings, enforced disappearances, and torture.

Humala has acknowledged that he served in 1992 in Counterinsurgency Battalion 313 in the Alto Huallaga region—which included a base in Madre Mía—and that his pseudonym at the time was “Carlos.” But he insists there were many “Carlos” at the time and denies any participation in human rights violations.

In addition to the soldiers’ and victims’ accounts placing Humala at the Madre Mía base, a photograph that one of the soldiers kept shows a younger Humala with other soldiers, all of them wearing a green T-shirt with the “Madre Mía” base name on it.

Photograph of Ollanta Humala Tasso (sitting in the front) and other soldiers, wearing a T-shirt with the "Madre Mía" base name on it, taken in the early 1990s. 

© Private

Due at least in part to the apparent destruction of relevant military records, the only available official documentation that Human Rights Watch was able to review is a copy of what appears to be Humala’s military record indicating he was “patrol chief” of Battalion 313 during 1992.

Human Rights Watch asked the Defense Ministry for detailed information about which soldiers were stationed at the Madre Mía and other bases in the area, as well as who were the commanding officers, but was told that Armed Forces personnel had informed the ministry the information “would not exist.” A former high-level official of the Defense Ministry told Human Rights Watch it is believed the documents were deliberately destroyed by fire.

In 2006, prosecutors opened an investigation into Humala’s alleged role in the crimes committed against Natividad Ávila, Jorge Ávila, and Sullca Castro, when the victims’ family identified him as “Captain Carlos” during the presidential campaign. The case was closed in 2009, as the Attorney General’s Office held there was not enough evidence to proceed. It justified the ruling by stating that Jorge Ávila and some soldiers had retracted their initial statements implicating Humala in the violations.

In April 2017, El Comercio newspaper published transcripts of taped conversations between people close to Humala and between one of them and Jorge Ávila that strongly suggest people close to Humala had bribed Jorge Ávila to change his initial statement. A month later, Jorge Ávila told the media that he had received money to modify his testimony. Other victims and soldiers also alleged they had been offered money during Humala’s 2006 presidential campaign not to implicate Humala in violations, or asked to hand over all available documents and pictures linking Humala to the Madre Mía base.

Since then, the Attorney General’s Office reopened the investigation into Natividad Ávila’s and Sullca Castro’s case. The prosecutor in charge of these investigations told Human Rights Watch that at least another 10 new investigations have also been opened since the soldiers’ testimonies were aired on TV. The prosecutor did not provide information on specific cases because Peruvian law requires that ongoing investigations be kept confidential.

Humala is currently being held in a Peruvian jail, following a July 2017 decision ordering his pretrial detention on corruption charges.

The human rights violations allegedly committed by Humala at the Madre Mía military base in the 1990s are part of a much larger pattern of atrocities. Peru’s Truth and Reconciliation Commission found that the highest number of victims in the northeast region of the country were in the Huánuco jungle and the southern portion of San Martin, where 2,244 people were killed or disappeared by security forces or members of Shining Path in the 1980s and 1990s, with the highest numbers of victims being reported between 1990-1993. Madre Mía is in the San Martin region. The vast majority of those responsible for these crimes have never been brought to justice.

The prosecutor in charge of these investigations has said that the biggest obstacle is the lack of cooperation by the Defense Ministry. In “thousands” of cases of alleged violations committed during the armed conflict, prosecutors have been prevented from identifying potential perpetrators because the Defense Ministry refused to provide information on who oversaw the bases and the names of soldiers stationed in them, the prosecutor in charge of the investigations said. She said that only “a minority” of cases under investigation had led to convictions.

Recommendations

The Attorney General’s Office should conduct thorough and timely investigations of all new evidence and allegations against former President Ollanta Humala and other soldiers implicated in atrocities during the armed conflict. It should investigate not only alleged human rights violations, but also alleged attempts to cover-up the crimes, such as bribing witnesses or burning or otherwise destroying documents and other evidence.

To ensure that the perpetrators of these crimes are brought to justice, the Peruvian government should:

  • Provide all necessary support to the Attorney General’s Office so it has sufficient resources and staffing, including prosecutors to investigate criminal responsibility and anthropologists and archeologists to find and identify victims;
  •  Take into consideration information from ongoing investigations regarding the possible fate and whereabouts of persons forcibly disappeared during the armed conflict when determining how to implement the 2016 law on disappearances, in particular in the search for bodies of missing people;[1]
  • Actively promote the registration of victims or family members now willing to provide their testimonies for the first time in the existing Victims’ Registry, and present their cases to judicial authorities for investigation; and
  • Take decisive measures, including the institution of criminal and disciplinary proceedings, against individuals from the Defense Ministry and the Armed Forces who refuse to cooperate in the identification of military officers, including commanders, with relevant operational or command roles during the period under investigation, or who may have been implicated in burning or otherwise destroying important official documentation.

Background

The Alto Huallaga region suffered high levels of violence throughout the 1980s and the 1990s. Residents were victims of abuses carried out both by members of Shining Path, an armed organization, and the Peruvian Armed Forces. Many residents were caught in the middle of the armed conflict and were accused by the military of supporting terrorist activities and subsequently subjected to horrific violations by the military. A Truth and Reconciliation Commission (Comisión de la Verdad y Reconciliación, CVR)—documented many of the abuses committed nationwide during the armed conflict and published its findings in 2003. Among its conclusions, as noted above, was that the highest number of victims in the northeast region of the country was in the Huánuco jungle and the southern portion of San Martin region, where 2,244 people were killed or disappeared by security forces or members of Shining Path in the 1980s and 1990s. The highest numbers of victims in those areas was reported between 1990-1993. In the Alto Huallaga area, part of the region and home to Madre Mia, 994 people were killed or disappeared between 1990-1993.[2]

In 1989, as part of a military strategy to combat terrorist activities by the Shining Path, the Peruvian Armed Forces created the “Huallaga Front,” made up of counterinsurgency battalions throughout the Alto Huallaga region. One of these was Counterinsurgency Battalion No. 313, called “Los Laureles,” located in Tingo María. This battalion was spread over a number of bases in different cities, each led by a military captain commanding approximately 20 to 40 soldiers.[3]

Starting in 1989, a series of military operations in the Alto Huallaga region aimed at capturing alleged Shining Path members led to serious human rights violations, including hundreds of cases of extrajudicial killings, enforced disappearances, sexual assault, and other forms of torture.

Human Rights Watch reviewed documentation on more than 30 cases in which victims or family members gave their testimony to the CVR. The cases, which involve dozens of victims, include allegations of enforced disappearances, torture, and extrajudicial killings committed between 1992 and 1994. The testimonies reveal the use of electrocution, burning, and dismemberment as forms of severe torture. Although some abuses were allegedly committed by Shining Path members, the majority of violations described in these testimonies were perpetrated by members of Peru’s Armed Forces.

The CVR sent 47 cases to prosecutors for their investigation.[4] These cases address just a fraction of the abuses committed at the time: some residents refused to give testimony to the CVR due to fear of reprisals, and CVR staff did not travel to all of the remote areas where abuses had been committed, according to a journalist who participated in the process and an activist living in the area.[5]
 

Evidence of Humala’s Military Record

Ollanta Humala Tasso has acknowledged that he served in Counterinsurgency Battalion 313—which included the Madre Mía base—in 1992 and that his pseudonym at the time was “Carlos,” but he claims that many others used that same pseudonym at the time.[6]

A copy of what appears to be Humala’s military record, available in a judicial file investigating his responsibility for human rights crimes, states that he was assigned to Counterinsurgency Battalion 313 in Tingo María as “patrol chief” between January 1, 1992 and February 1, 1993.[7]

Most official documentation detailing which officials were assigned to counterinsurgency bases in the Alto Huallaga region in the early 1990s, however, has allegedly vanished.

In a letter dated July 6, 2017, Human Rights Watch requested the following information from the Peruvian defense minister: a copy of Humala’s military record, a list of names and pseudonyms of military officers in charge of the Madre Mía base in 1992, and information on how long they were there. The request also asked for information about those in charge of other bases in the area in the 1980s and 1990s, copies of documentation certifying appointments and transfers of military personnel, and a list of those who were in the chain of command at the time.[8]

On July 31, the minister’s chief of staff told Human Rights Watch that, according to the Armed Forces, the requested information “would not exist.”[9] Similarly, a high-level official who worked for the Defense Ministry from 2011 to 2013 told Human Rights Watch that official documents regarding appointments and transfers of military personnel assigned to the Madre Mía base in the early 1990s no longer exist.[10] According to this high-level official and to a soldier from Madre Mía, most of these documents were purposefully burned and destroyed.[11]

Soldiers’ Accounts of Violations in Madre Mía

In May 2017, Peruvian TV stations aired the testimonies of six soldiers who claim they worked under Humala’s command when he was chief of the Madre Mía base in 1992. The soldiers implicated the former president in egregious human rights violations and in attempts to cover up his responsibility in these crimes. Of the six soldiers, two are publicly identified only by pseudonyms. These soldiers and at least two others have been in witness protection programs since making formal statements to the Attorney General’s Office. The allegations they made against Humala are as follows:

  • A soldier identified publicly only as “Anchoveta” said Humala commanded the Madre Mía base and used the alias “Captain Carlos” while working there.[12] He said “Captain Carlos” forced him to commit violations. “Anchoveta” said he cut a detainee’s throat, filled the dead body with rocks, and threw him into the Huallaga river while serving in Madre Mía. On one occasion, “Anchoveta” said, “Captain Carlos” told him to torture men and children, kill them, and burn their bodies in a field. “Anchoveta” said that Amilcar Gómez Amasifuen, a close associate of Humala who served with him at the Madre Mía base, had attempted to bribe him to change his testimony during the initial investigation in 2006 of violations committed in Madre Mía.[13]
  • A soldier identified publicly only as “Manzanita” claimed he witnessed soldiers leading five detainees with their heads covered, down from the Madre Mía base—located 200 meters away—to the banks of the Huallaga river.[14] He says he then saw the soldiers cut the victims’ throats and stuff rocks into the dead bodies before throwing them into the river. He also claims to have witnessed “Captain Carlos,” whom he says was Humala, order soldiers to burn a peasant alive. He said other soldiers raped two women and a 14-year-old girl after Humala told them the women were “gifts” and they “could do whatever [they] wanted with them.” When an investigation into alleged crimes in Madre Mía initially started in 2006, “Manzanita” said someone left a document in his home instructing him what he should say if the press or the authorities asked him about the allegations, and with a telephone number of a lawyer who Manzanita claims worked for Humala’s Nationalist Party.[15]
  • Adolfo Becker Silva, also known as “Cachorro,” said that during the time “Captain Carlos,” whom he says is Humala, was chief of Madre Mía base, he witnessed soldiers cut a victim’s arms off and place them in a bag, stuff him with rocks, and throw him into the river. Soldiers often cut off the arms, legs, and heads of victims, Becker said, so that the body parts would fit in a sack to be thrown into the river. Becker claimed that before and during Humala’s presidential campaign Gómez Amasifuen asked him and other soldiers for all the pictures they had with “Captain Carlos,” claiming he was going to prepare an album of memories, but he never returned them.[16]
  • Werner Melgarejo, also known as “Águila,” said “Captain Carlos” ordered soldiers to kill people and cut them up—they cut off their ears, opened their stomachs, and stuffed their bodies with rocks so they would sink. Melgarejo claimed Humala ordered all documents linking him to the murders to be burned. “We no longer exist as soldiers,” Melgarejo said.[17]
  • Leonardo Soria García said in a conversation allegedly taped in late 2015 without his consent—and aired on Peruvian TV in 2017—that he received orders from Humala to forcibly disappear and execute several people. Soria said Humala told him, while he was campaigning for president, that he should not share any information about what happened in Madre Mía, and that they would “make arrangements” later, when he was elected president in 2011. Soria claimed Gómez Amasifuen, Humala’s ally who allegedly also helped him silence other witness, asked him for help to contact other soldiers to bribe them so they would keep quiet.[18]
  • José Ponce Ruiz said that, under the orders of Humala, soldiers detained 18 people accused of being terrorists, tied their hands and feet, and buried them alive. Ponce claimed to have witnessed Humala himself torturing detainees, and other soldiers killing dozens of victims, including women and children. Ponce’s testimony, which was taped in 2006, was not aired until 2017 because the journalists who interviewed him had been unable to find corroborating evidence at the time.[19]

Beto Ortiz, a journalist who interviewed two of the soldiers, told Human Rights Watch that his crew had interviewed a total of seven soldiers in Madre Mía in May 2017: all of them provided consistent testimonies regarding the crimes and Humala’s involvement in them.[20]

In testimony given before prosecutors in 2006, another soldier who served in Madre Mía in 1992 said that he saw “Captain Carlos” order a soldier to kill a resident from the village of La Morada who had been detained. The soldier said he cut his throat with a knife, placed rocks inside his clothes, and threw the victim in the river. In a separate incident, he said he saw “Captain Carlos” step on the heads of seven detainees, and then shot them at point blank range as they were lying on the floor with their hands tied behind their backs. The soldier said he realized “Captain Carlos” was Humala when he ran for president.[21]

The Enforced Disappearances of Natividad Ávila Rivera and Benigno Sullca Castro, and the Torture of Jorge Ávila

Wife and husband, Natividad Ávila Rivera and Benigno Sullca Castro were forcibly disappeared on June 17, 1992 and while the body of Sullca Castro was recovered days after his enforced disappearance, the fate and whereabouts of Ávila Rivera remain unknown. Human Rights Watch reviewed judicial records given by eyewitnesses, including their children and Ávila Rivera’s brother, about their disappearance and interviewed Teresa Ávila, Ávila Rivera’s sister, and a soldier based at Madre Mía at the time of their disappearance who knew the victims.

 The soldier told Human Rights Watch that around 1 a.m. on June 17, 1992, two vehicles left the Madre Mía base carrying soldiers with the purpose of finding residents who were working with “terrorists.”[22] According to the judicial statements of Ávila Rivera’s and Sullca Castro’s children, who witnessed the events, six or seven soldiers entered the home of Ávila Rivera and Sullca Castro, at approximately 4 a.m., and drove them away.[23] The soldiers then drove to the home of Jorge Ávila, Natividad’s brother. They forced him out of his house, tied his hands behind his back, and shoved him into the white vehicle with Natividad and Sullca Castro, Jorge Ávila said in his first statement before prosecutors in 2006.[24] Jorge Ávila’s initial statement is consistent with what he told doctors who prepared a medical report reviewed by Human Rights Watch, as well as with what he told several family members days after the detention.[25] The vehicle took a road that only went to the Madre Mía base, according to Jorge Ávila’s wife.[26]

The soldier who spoke with Human Rights Watch, said they then returned to the base with the detainees. The three detainees were thrown into a dirt hole, 1.5 meters deep, with their hands tied. The following morning, “Captain Carlos” ordered the soldiers to separate the men from the woman and not to give them any food or water. The soldier knew the detainees beforehand.[27]

On June 18, Teresa Ávila, Natividad’s and Jorge’s sister, went to the Madre Mía base.[28] When she asked “Captain Carlos” where her family members were, the captain responded, “If I had your family, I would kill them because your family is a scourge,” she told Human Rights Watch. The captain told Teresa Ávila to come back that night, look for her sister in the base, and take her away if she found her. Ávila said she got scared and did not return.

During their five days at the base, some soldiers occasionally gave them food surreptitiously, Jorge Ávila and the soldier interview by Human Rights Watch said. During Ávila’s detention, soldiers tortured him, giving him electric shocks while forcing his head into water and asking if he was a Shining Path leader.[29]

On June 24, a group of soldiers took the three detainees to the edge of the Huallaga river. Jorge Ávila said he threw himself into the river and managed to escape. While he was swimming away, he heard several gun shots, he said.[30] Ávila’s account is consistent with that of the soldier, who told Human Rights Watch that one night “Captain Carlos” ordered at least five soldiers to get ready to go out. The soldiers took the three detainees away, and returned a couple of hours later without them, the soldier said. One of the soldiers was the soldiers’ roommate, and he told him one of the detainees had escaped and showed him a knife covered with blood.

The following day, Teresa Ávila’s son told her that he had seen a lot of blood in an area that residents called “the slaughterhouse.”[31] Ávila ran to the place, and while she was sitting there crying, a woman came up to her and told her that her brother, Jorge Ávila, had escaped and was at her home, naked and bruised. Jorge Ávila fled the area where they lived soon after.

Teresa Ávila continued to search for her sister. One day, she was with a boatman looking for her when she found a body floating in the middle of the Huallaga river. They pulled closer, and when they turned the body around, she realized it was Benigno Sullca Castro—although the fish had eaten parts of his lips, he had the same blue pants, cream shirt, and white tennis shoes he had been wearing when he was detained. The body also had a black finger nail, just like Sullca Castro, and a bullet hole in his forehead, Ávila said. When they were trying to take the body back home, they heard gunshots, so they decided to leave it at the side of the river, covered with leaves. Her son-in-law returned the following day, but was unable to remove the body because the river was under surveillance. He buried the body there, Ávila and her daughter said.

In 2006, after Teresa Ávila and her family saw Ollanta Humala Tasso during his presidential campaign and recognized him as “Captain Carlos,” they filed a complaint with a prosecutor. In August, a prosecutor pressed charges against Humala, accusing him of the enforced disappearance, torture, and killing of Natividad Ávila and Sullca Castro, and of the attempted enforced disappearance, torture, and killing of Jorge Ávila. Days later, a judge authorized the investigation to move forward on all charges, except for torture, which, he argued, was not included as a crime in the criminal code when the events happened.[32]

However, in February 2009, the Attorney General’s Office held that there was not enough evidence to justify moving forward.[33] Two months later, the National Criminal Court said that there was evidence indicating that the crimes were committed, but alleged it could not prove Humala’s participation. It cited as evidence that Jorge Ávila and other soldiers had retracted their initial statements in which they had implicated Humala.[34] In December 2009, the Supreme Court confirmed the decision.[35]

Despite allegations that Jorge Ávila and the soldiers had been bribed to change their testimonies[36]—allegations that are consistent with information provided by other family members who claimed they had received offers of money to do so[37]—in 2012 the Supreme Court absolved two people close to Humala in a case accusing them of committing a “crime against public administration” by trying to bribe witnesses.[38]

Although the rulings did not prevent prosecutors from continuing to investigate the crimes against the Ávila siblings and Sullca Castro, the investigation remained stalled for eight years, Luz Carmen Ibañez, the special prosecutor charged with investigating human rights violations committed during the time, told Human Rights Watch.[39]

In April 2017, the Peruvian newspaper El Comercio published a series of taped conversations that suggest that people close to Humala had indeed bribed Jorge Ávila to change his initial testimony.[40] The conversations had been taped pursuant to a judicial order linked to an unrelated case. In a conversation on May 11, 2011, right before the run-off election between Humala and Keiko Fujimori, Gómez Amasifuen told Jorge Ávila, “Today the deposit will definitely be done… before noon it is being done.” Ávila responds he will let his daughter Adriana know. In a previous conversation, on May 9, Amasifuen tells Julio Torres, the treasurer of Humala’s Nationalist Party, that he should not forget to wire the money to Adriana.

In May 2017, press reports say, Jorge Ávila confirmed he had been paid to change his testimony.[41]

In light of the taped conversations and the soldiers’ testimonies, Teresa Ávila, with the support of Peruvian human rights groups, asked the Attorney General’s Office to re-open the investigation and the office agreed. Ibañez told Human Rights Watch there’s an ongoing investigation “against anyone who may result responsible.”[42]

The Enforced Disappearances of Nelson Hoyos Sagastegui and Miguel Herrera Ortiz

On June 5, 1992, soldiers detained Nelson Hoyos Sagástegui, 19, and Miguel Herrera Ortiz as they were waiting for a bus in Tocache to travel to Lima, according to Hoyos’ parents and witness testimony recorded by the official Victims’ Registry.[43] Hoyos had not served his mandatory military service and had asked his friend Herrera, a marine, to help him sort out his situation, Antenor Hoyos Cubas, Hoyos’ father, told Human Rights Watch.

On June 6, Antenor Hoyos went to the Madre Mía base and asked “Captain Carlos” for information about his son and his detention. Antenor Hoyos said that while the captain acknowledged that soldiers had detained his son, he also claimed that they had let him go the night before. When Antenor Hoyos insisted that he was still in custody, the captain threatened to put him in the “hole,” a deep pit in the ground where they held detainees.

Antenor Hoyos returned to the base on June 8, but “Captain Carlos” repeated that they had let his son go on the same day he had been detained, he said. This time, the captain threatened to “wipe them off” and “kill them like dogs” if he and his family did not leave, Antenor Hoyos told Human Rights Watch.  Soon after, the Hoyos family moved to the outskirts of Lima.

A few months later, having heard a report from a neighbor that they had seen his son dressed as a soldier in the base, Antenor Hoyos went back and once again asked “Captain Carlos” about his son’s whereabouts. This time, the captain insisted they had let his son go, but also said he was a “terrorist.”

Hoyos’ parents never saw him again, and still do not know the fate or whereabouts of their son.

In 2006, Antenor Hoyos saw Humala on television when he was running for president and recognized him as “Captain Carlos” from Madre Mía. That year, Aurea Felipe Hermosilla, Herrera’s wife, also accused Humala on television of being responsible for the enforced disappearance of her husband.[44]

Antenor Hoyos filed a case before the Ombudsman Office in 2008. Human Rights Watch reviewed the official registry, which records Nelson Hoyos as having disappeared during the armed conflict; his family was awarded 10,000 soles as compensation, Antenor Hoyos said.

When the Supreme Court ruled in favor of not proceeding with the case against Humala in 2009, the Hoyos family lost faith in the justice system and decided to drop the case—until now. They are currently working with Peruvian human rights lawyers and the Attorney General’s Office to push the investigation forward.

The Killing of Hermes Estela Vásquez

At 5 a.m. on June 6, 1992, a group of soldiers entered the home of Hermes Estela Vásquez, killed him, and detained his brother, Nicolás, Norvil Estela Delgado, their father, told the Truth and Reconciliation Commission.[45] The soldiers took the body of Hermes away in a truck towards the Madre Mía base, the father said, so he went after them, until two soldiers stopped him. He never saw his son Hermes again.

Later, Hermes Estela’s mother went to the Madre Mía base and asked “Captain Carlos” not to kill her other son Nicolás, who had been taken to the base with his hands tied, according to a witness who spoke with the father. The captain told her nothing would happen to her son. When Nicolás was released, he said the soldiers had beaten him, cut his hair, and asked him to name residents who were Shining Path leaders.

Norvil Estela went to search for Hermes’ body near the river a few days later, and he saw “Captain Carlos,” who told him, “the next time I see you here, I will make you disappear.”

The National Human Rights Coordinator is currently working with the family to move the criminal case forward.

Other Reported Violations

The Peruvian press has reported additional cases of violations allegedly committed by “Captain Carlos” in 1992. Some cases covered by the media include the detention and torture of Javier Saravia Alanya in January 1993,[46] the killings of Yander Leandro Zúñiga[47] and Nemer Acuña[48] in 1992, and the abuse of Victoria Zonia Luis Cristobal, and her husband, Cirilo Rosales Tabraj, in 1992.[49]

Efforts to Investigate Human Rights Violations

In 2004, the Attorney General’s Office created a special prosecutor’s office to investigate human rights violations in response to a recommendation by the CVR. Most of the cases that this special prosecutor’s office handles are related to abuses committed between 1980 and 2000, although not all of them were included in the CVR report, according to Luz Carmen Ibañez, the special prosecutor in charge of these investigations. The cases under investigation include instances of disappearances, sexual abuse, torture, and executions, sometimes committed against large groups of people.[50]

On July 6, 2017, Human Rights Watch requested detailed information from the Attorney General’s Office on the number of investigations and convictions obtained in these cases, but at the time of writing had not received a response. Although the prosecutor in charge of investigating these cases said her office did not have information on the total number of convictions obtained, she told Human Rights Watch that they had been achieved in “a minority” of the incidents under investigation.[51] Local human rights activists told the Inter-American Commission on Human Rights in May 2017 that they were aware of only 78 rulings related to abuses committed during the armed conflict; of these, 41 were related to allegations of enforced disappearances, and only 17 had ended with convictions.[52]

The prosecutor told Human Rights Watch that the greatest obstacle her office faces to progress with the prosecutions is the lack of collaboration from the Defense Ministry. The office has “thousands” of cases involving alleged abuses committed during the time, in which the office has not been able to identify the perpetrators because the Defense Ministry refuses to provide information on who oversaw the bases and the names of the soldiers stationed in them.[53]

Peru’s Legal Obligations

Peru’s obligations to investigate the serious crimes discussed in this report and prosecute those responsible derive from multiple sources. First, many of the crimes constitute war crimes committed during a non-international armed conflict and potential crimes against humanity. There is broad legal consensus that the obligation to investigate and prosecute war crimes and crimes against humanity is a matter of customary international law and jus cogens.[54] War crimes committed during a non-international armed conflict include violations of article 3 common to the four Geneva Conventions of August, 12, 1949, such as “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” as well as acts such as deliberate attacks on the civilian population, rape, and other forms of sexual violence and physical mutilation. Crimes against humanity include prohibited acts such as murder, rape and sexual violence, torture and enforced disappearances when committed as part of a widespread or systematic attack directed against any civilian population.

Second, the crimes also constitute serious violations of international human rights law for which there exist multiple treaty obligations to investigate and prosecute, in addition to customary law norms.  For example, Peru is a party to both the International Covenant on Civil and Political Rights and the American Convention on Human Rights (ACHR).[55] The Inter-American Court of Human Rights has already been asked to rule on questions about the scope of Peru’s obligations under the ACHR to investigate and punish serious violations that occurred during the armed conflict. In this respect, the court held that:

all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible under the [American] convention [on Human Rights], because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.[56]

Peru is also a party to international and regional conventions specifically on the prevention of torture and enforced disappearances.[57] The four relevant conventions incorporate the international law obligation to ensure effective investigations and prosecutions of acts of torture and enforced disappearances respectively, as well as provision of proper remedy for the victims. The crime of enforced disappearance also constitutes a continuing violation, meaning that so long as there is a failure to account for the fate and whereabouts of a victim of an enforced disappearance, the violation is deemed to persist, and Peru is under an obligation to bring the violation to an end.

Acknowledgments

This report was researched and written by Tamara Taraciuk Broner, Americas senior researcher. It was reviewed and edited by José Miguel Vivanco, Americas executive director; Aisling Reidy, senior legal advisor; and Joseph Saunders, deputy program director. Nicola Haubold, Americas intern, provided valuable research support. María Barragan-Santana, Americas associate, provided logistical support. The report was prepared for publication by Olivia Hunter, publications coordinator, Fitzroy Hepkins, administrative manager; and Jose Martinez, senior administration coordinator. It was translated into Spanish by Gabriela Haymes.

Human Rights Watch would like to thank each of the human rights lawyers and activists we interviewed for providing insights and information for this report, with a special thanks to Francisco Soberon of Aprodeh for his critical support, as well as to Ana María Vidal and her team at the National Human Rights Coordinator for their help gathering information and setting up meetings with victims. Human Rights Watch would also like to thank journalist Beto Ortiz and his production for sharing information and footage on his work at Madre Mía, and Prosecutor Luz Carmen Ibañez for meeting with us and providing inputs for this report.

Most importantly, Human Rights Watch is deeply grateful to the victims and witnesses who generously shared their testimonies with us, with the hope it would contribute to achieving justice.

[1] “Justice Ministry: Searching for disappeared people will be a priority in 2017” (Minjus: búsqueda de personas desaparecidas será prioridad el 2017), Andina, January 1, 2017, http://www.andina.com.pe/agencia/noticia-minjus-busqueda-personas-desaparecidas-sera-prioridad-2017-647490.aspx (accessed August 19, 2017).

[2] Truth and Reconciliation Commission, Final Report, 2003, http://www.cverdad.org.pe/ifinal/ (accessed August 19, 2017); National Coordinator for Human Rights, “Human Rights Violations in the Alto Huallaga Region: The Madre Mía Case and Ollanta Humala’s Responsibility” (Violaciones a los derechos humanos en el Alto Huallaga: El caso Madre Mía y la responsabilidad de Ollanta Humala), November 2009, p. 13; Request by Teresa Ávila to prosecutors to reopen the investigation of the Natividad Ávila and Benigno Sullca case, May 19, 2017 (copies on file at Human Rights Watch).

[3] National Coordinator for Human Rights, “Human Rights Violations in the Alto Huallaga Region: The Madre Mía Case and Ollanta Humala’s Responsibility;” Petition filed by the National Coordinator for Human Rights to the Inter-American Commission on Human Rights on the Natividad Ávila, Beningno Sullca Castro, and Jorge Ávila case, n.d. (copy on file at Human Rights Watch).

[4] Ibid.; Institute of Democracy and Human Rights of the Peruvian Catholic University, “Follow-up of Cases of Human Rights Violations”(Segumiento de casos de violaciones de Derechos Humanos), n.d., http://idehpucp.pucp.edu.pe/seguimiento/
casos/seguimiento-de-casos-cvr/
(accessed August 19, 2017).

[5] Human Rights Watch interview with María Elena Castillo, Lima, June 29, 2017; Human Rights Watch interview with Mónica Miraval, Lima, June 29, 2017.

[6] Declaration (declaración indagatoria) by Ollanta Humala Tasso, June 23, 2006; Fourth Provincial Criminal Court (Cuarto Juzgado Penal Supraprovincial), judicial decision to open investigation (Auto Apertorio de Instrucción), August 29, 2006 (copies on file at Human Rights Watch).

[7] Copy of Ollanta Moises Humala Tasso’s military record (foja de servicios), detailing where he was stationed between 1980-1994, December 13, 2005. The document is stamped by the Personnel Directorate of the Army. Copy on file at Human Rights Watch.

[8] Letter from José Miguel Vivanco, Americas director at Human Rights Watch, to Defense Minister Jorge Nieto Montesinos, July 6, 2017.

[9] Human Rights Watch telephone conversation with Aelin Pérez, the defense minister’s chief of staff, July 31, 2017.

[10] Human Rights Watch interview with a former high-level official at the Defense Ministry who requested anonymity, June 30, 2017.

[11] Ibid.; “Sanguinary testimonies from Madre Mía give away Ollanta Humala and his lawyer, Roy Gates” (Testigos sanguinarios de Madre Mía delatan a Ollanta Humala y a su abogado Roy Gates), YouTube video, uploaded by Noticias NTN on May 28, 2017, https://www.youtube.com/watch?v=GP1kYoEOCOs (accessed August 19, 2017); “Madre Mía Case: Former soldier claimed that Ollanta Humala burnt all documents from his class” (Caso Madre Mía: Ex soldado denunció que Ollanta Humala quemó todos los registros de su promoción), Peru 21, May 9, 2017, http://peru21.pe/politica/caso-madre-mia-ex-soldado-denuncio-que-ollanta-humala-quemo-todos-registros-su-promocion-2280977 (accessed August 19, 2017).

[12] The full name of “Anchoveta” was not made public by the show in which the testimony was aired.

[13] “Sanguinary testimonies from Madre Mía give away Ollanta Humala and his lawyer, Roy Gates,” YouTube video uploaded by Noticias NTN.

[14] The full name of “Manzanita” was not made public by the show in which the testimony was aired.

[15] “Sanguinary testimonies from Madre Mía give away Ollanta Humala and his lawyer, Roy Gates,” YouTube video uploaded by Noticias NTN.

[16] “Beto a Saber: Show of May 2, 2017” (Beto a Saber: Programa del 02 de Mayo de 2017), YouTube video uploaded by Beto a saber on May 2, 2017, https://www.youtube.com/watch?v=u31x2DOveig (accessed August 19, 2017).

[17]  “Shocking testimony of former military officer on Captain Carlos’ cruelty” (Impactante testimonio de ex militar sobre crueldad del Capitán Carlos), YouTube video uploaded by Beto a saber on May 8, 2017, https://www.youtube.com/watch?v=tz743Llnzio (accessed August 19, 2017).

[18] “New testimonies of soldiers link Ollanta Humala to Madre Mía case” (Nuevos testimonios de soldados que vinculan a Ollanta Humala en caso Madre Mía), YouTube video uploaded by Cuarto Poder (AmericaTV Peru) on May 17, 2017, https://www.youtube.com/watch?v=C2-Bd_8Rauw (accessed August 19, 2017).

[19] “Exclusive! Fourth witness revealed macabre secret of Captain Carlos” (Exclusivo! Cuarto testigo reveló macabro secreto del Capitán Carlos), YouTube video uploaded by Beto a saber on May 10, 2017, https://www.youtube.com/watch?v=
Sr6iVmmUUTE
(accessed August 19, 2017).

[20] Human Rights Watch interview with Beto Ortiz, Lima, June 28, 2017.

[21] Summary of testimony provided by protected witness R-172 to judicial authorities, May 20, 2006 (copy on file at Human Rights Watch).

[22] Human Rights Watch interview with a soldier, Lima, June 28, 2017; summary of testimony provided by protected witness CHR-20 to judicial authorities on April 22, 2006 and November 6, 2006 (copy on file at Human Rights Watch).

[23] Summaries of witness testimony provided to prosecutors (declaración indagatoria) by María Magdalena Sullca Ávila, March 8, 2006; of witness testimony (declaración indagatoria) by Teresa Ávila, March 8, 2006; and of witness testimony (declaración testimonial) by Richar Gerardo Sullca Ávila, November 27, 2006 (copies on file at Human Rights Watch).

[24] Witness testimony (declaración indagatoria) by Jorge Ávila, March 2006, cited in Fourth Provincial Criminal Court (Cuarto Juzgado Penal Supraprovincial), judicial decision to open investigation (Auto Apertorio de Instrucción), August 29, 2006.

[25] Copy of medical report of Jorge Ávila, March 14, 2006; summaries of witness testimony (declaración indagatoria) by Teresa Ávila, March 8, 2006; of witness testimony (declaración testimonial) by Richar Gerardo Sullca Avila, November 27, 2006; and of witness testimony (declaración testimonial) by Carmen Ávila Rivera, November 26, 2006.

[26] Summary of witness testimony (declaración indagatoria) by Teresa Ávila, March 8, 2006.

[27] Human Rights Watch interview with a soldier, Lima, June 28, 2017; summary of testimony provided by protected witness CHR-20 to judicial authorities on April 22, 2006 and November 6, 2006 (copies on file at Human Rights Watch).

[28] Human Rights Watch interview with Teresa Ávila, Lima, June 28, 2017; summaries of witness testimony by Teresa Ávila on March 8, 2006 and September 20, 2006.

[29] Witness testimony (declaración indagatoria) by Jorge Ávila, March 2006, cited in Fourth Provincial Criminal Court (Cuarto Juzgado Penal Supraprovincial), judicial decision to open investigation (Auto Apertorio de Instrucción), August 29, 2006.

[30] Ibid.

[31] Human Rights Watch interview with Teresa Ávila, Lima, June 28, 2017.

[32] Fourth Provincial Criminal Court (Cuarto Juzgado Penal Supraprovincial), judicial decision to open investigation (Auto Apertorio de Instrucción), August 29, 2006.

[33] Attorney General’s Office, Criminal National Superior First Prosecutor’s Office (Ministerio Público, Primera Fiscalía Superior Penal Nacional), File 05-2007, Decision No. 17-2009, February 12, 2009.

[34] National Criminal Chamber (Sala Penal Nacional), File 05-07, April 27, 2009.

[35] Supreme Court of Justice of the Republic, Second Transitory Criminal Chamber (Corte Suprema de Justicia de la República, Segunda Sala Penal Transitoria), December 21, 2009.

[36] One of Natividad’s children told a judge in August 2006 that his uncle Jorge Ávila had received US$4,000 from someone close to Humala the month before so he would change his testimony and say Humala was not implicated in the crimes. Summary of witness testimony (declaración indagatoria) by Yerson Sullca Ávila, August 26, 2006.

[37] Teresa Ávila told Human Rights Watch that someone who was close to Humala tried to bribe her in 2007, telling her she would receive money if she said that Humala was not “Captain Carlos,” but she rejected the offer. Human Rights Watch interview with Teresa Ávila, Lima, June 28, 2017.

[38] Request by Teresa Ávila to prosecutors to reopen the investigation of the Natividad Ávila and Benigno Sullca case, May 19, 2017.

[39] Human Rights Watch interview with Luz Carmen Ibañez, Lima, June 28, 2017.

[40] “This is the transcription of the audios about Humala and Madre Mía” (Esta es la transcripción de los audios sobre Humala y Madre Mía), El Comercio, April 27, 2017, http://elcomercio.pe/politica/justicia/transcripcion-audios-humala-madre-mia-421730 (accessed August 19, 2017).

[41] “Jorge Ávila: “I feel sorry about having changed my testimony in the Madre Mía case” (Jorge Ávila: “Me arrepiento de cambiar mi testimonio por el caso Madre Mía”), Perú 21, May 14, 2017, http://peru21.pe/politica/testigo-clave-caso-madre-mia-me-arrepiento-cambiado-mi-testimonio-2281536 (accessed August 19, 2017); “Madre Mía Case: Jorge Ávila, witness, denounces that he has been threatened” (Caso Madre Mía: testigo Jorge Ávila denunció que es víctima de amenazas), América TV, May 17, 2017, http://www.americatv.com.pe/noticias/actualidad/madre-mia-testigo-jorge-avila-denuncio-que-victima-amenazas-n276767 (accessed August 19, 2017).

[42] Human Rights Watch interview with Luz Carmen Ibañez, Lima, June 28, 2017.

[43] Human Rights Watch interview with Antenor Hoyos Cubas and María Concepción Sagastegui Tapia, Lima, June 27, 2017; witness testimony (declaracion jurada) by Wilder Roberto Pardo Tapia, July 24, 2013.

[44] “Captain Carlos Ollanta Humala: from alleged depredator in the counterinsurgency base of Madre Mía to presidential candidate” (“Capitán Carlos” Ollanta Humala: de Presunto Depredador en BCS Madre Mía a Candidato Presidencial Nacionalista), La Leyenda del Huallaga Blogspot, May 29, 2011, http://leyendadelhuallaga.blogspot.com/2011/05/capitan-carlos-ollanta-humala-de.html (accessed August 19, 2017).

[45] File Card with Norvil Estela Delgado’s testimony to the Truth and Reconciliation Commission, n.d.; “Residents of Madre Mía: “Captain Carlos” forced us to work every Saturday” (Pobladores de Madre Mía: “Capitán Carlos” nos obligaba a realizar faenas todos los sábados,” Perú 21, May 20, 2017, http://peru21.pe/politica/pobladores-madre-mia-capitan-carlos-nos-obligaba-realizar-faenas-todos-sabados-informe-2282351 (accessed August 19, 2017).

[46] National Coordinator for Human Rights, “Human Rights Violations in the Alto Huallaga Region: The Madre Mía Case and Ollanta Humala’s Responsibility;” “Human Rights Coordinator ratifies case against Humala” (Coordinadora Derechos Humanos ratifica denuncias contra Humala), Nación, March 15, 2006, http://www.nacion.com/archivo/Coordinadora-Derechos-Humanos-denuncias-Humala_0_818118556.html (accessed August 19, 2017).

[47] “New Testimony in Madre Mía Case: The brother of a disappeared man speaks” (Nuevo testimonio en caso Madre Mía: habla hermano de desaparecido), Diario Correo, May 8, 2017, http://diariocorreo.pe/politica/nuevo-testimonio-en-caso-madre-mia-habla-hermano-de-desaparecido-748243/ (accessed August 19, 2017); “One of the Madre Mía victims adds a testimony against Ollanta Humala” (Una de las víctimas del “caso Madre Mía” suma su testimonio contra Ollanta Humala), Europa Press, May 13, 2017, http://www.europapress.es/internacional/noticia-victimas-caso-madre-mia-suma-testimonio-contra-ollanta-humala-20170513040848.html (accessed August 19, 2017); “Madre Mía Case: The testimonies that implicate Ollanta Humala in extrajudicial executions” (Caso Madre Mía: Los testimonios que implican a Ollanta Humala con ejecuciones extrajudiciales), Perú 21, May 10, 2017, http://peru21.pe/politica/caso-madre-mia-testimonios-que-implican-ollanta-humala-ejecuciones-extrajudiciales-2280791 (accessed August 19, 2017); “Ollanta: Unmasked” (Ollanta, desenmascarado), Diario Uno, May 9, 2017, http://diariouno.pe/columna/ollanta-desenmascarado/ (accessed August 19, 2017); “Perú: Soldiers say they disappeared and killed “subversive people” following Ollanta Humala’s orders” (Perú: Soldados aseguran que hicieron desaparecer y asesinaron a “personas subversivas” por orden de Ollanta Humala,” El Economista, May 8, 2017, http://www.eleconomistaamerica.com/politica-eAm-pe/noticias/8344779/05/17/Peru-Soldados-aseguran-que-hicieron-desaparecer-y-asesinaron-a-personas-subversivas-por-orden-de-Ollanta-Humala.html (accessed August 19, 2017).

[48] Tweet by Beto Ortiz, July 8, 2017, https://twitter.com/malditaternura/status/883870651429289985 (accessed August 19, 2017); “Ollanta Humala is accused of another crime in the counterinsurgency military base Madre Mía” (Acusan a Ollanta Humala de otro crimen en base militar contrasubversiva Madre Mía), Exitos Noticias, July 10, 2017, http://exitosanoticias.pe/acusan-ollanta-humala-crimen-base-militar-contrasubversiva-madre-mia/ (accessed August 19, 2017); “Madre Mía Case: Marlit Acuña burried her father twice and now asks for justice” (Caso Madre Mía: Marlit Acuña enterró a su padre dos veces y ahora pide justiciar), Trome, July 10, 2017, http://trome.pe/actualidad/caso-madre-mia-ollanta-humala-nemer-acuna-cadaver-video-55621 (accessed August 19, 2017); “Nemer Acuña, another identified victim of the Madre Mía Case” (Nemer Acuña, otra víctima identificada del Caso Madre Mía), La República, June 21, 2017, http://glr-vpc1-elb-larepublica-reda-711286046.us-east-1.elb.amazonaws.com/impresa/politica/887927-nemer-acuna-otra-victima-identificada-del-caso-madre-mia (accessed August 19, 2017).

[49] National Coordinator for Human Rights, “Human Rights Violations in the Alto Huallaga Region: The Madre Mía Case and Ollanta Humala’s Responsibility;” “The Death Squads of Peru’s President” (Los escuadrones de la muerte del Presidente de Perú), Fronterapirata.com, October 31, 2014, https://fronterapirata.com/2014/10/31/los-escuadrones-de-la-muerte-del-presidente-de-peru/ (accessed August 19, 2017).

[50] Human Rights Watch interview with Luz Carmen Ibañez, Lima, June 28, 2017.

[51] Ibid.

[52] Human Rights Watch interview with Ana María Vidal, National Coordinator for Human Rights, Lima, June 25, 2017; “IACHR expresses concern about impunity in cases of human rights violations in Perú” (CIDH expresa preocupación por la situación de impunidad en casos de violaciones a los derechos humanos en Perú), Demus, May 25, 2017, http://www.demus.org.pe/noticias/cidh-expresa-preocupacion-por-situacion-de-impunidad-en-casos-de-violaciones-a-los-derechos-humanos-en-peru/ (accessed August 19, 2017).

[53] Human Rights Watch interview with Luz Carmen Ibañez, Lima, June 28, 2017.

[54] See for example Rule 158 of the ICRC’s study on customary international humanitarian law and discussions at Human Rights Watch, Selling Justice Short, https://www.hrw.org/sites/default/files/reports/ij0709webwcover_1.pdf, pp.10-19; and Human Rights Watch, The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute, June 1, 2005, http://www.hrw.org/node/83018, pp. 9-11.

[55] International Covenant on Civil and Political Rights (ICCPR), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Peru on April 28, 1978; American Convention on Human Rights (ACHR) ("Pact of San Jose, Costa Rica"), O.A.S. Treaty Series No. 36, entered into force July 18, 1978, ratified by Peru on July 28, 1978.

[56] See Inter-American Court of Human Rights, Barrios-Altos Case, Judgment of March 14, 2001, Inter-Am. C. H.R. (Ser. C) No. 75 (2001), para. 41.  See also, against Peru, Inter-American Court of Human Rights, La Cantuta Case, Judgment of November 29, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 162 (2006).

[57] Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Peru on July 7, 1988; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force February 28, 1987, ratified by Peru on February 27, 1990; Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (1994), entered into force March 28, 1996, ratified by Peru on February 8, 2002; International Convention on the Protection of All Persons from Enforced Disappearance, entered into force December 23, 2010, ratified by Peru on September 26, 2012.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Reed Brody is Counsel for Human Rights Watch, where he assists atrocity victims who are fighting for justice. His work as counsel for the victims in the case of the exiled former dictator of Chad, Hissène Habré – who was convicted of crimes against humanity in Senegal – and in the cases of Augusto Pinochet and Jean-Claude “Baby Doc” Duvalier has been featured in five films, including “The Dictator Hunter”. He currently works with victims of the former dictator of Gambia Yahya Jammeh. He is author of four Human Rights Watch reports on U.S. treatment of prisoners in the “war on terror” and the book “Faut-il Juger George Bush?”  Before joining Human Rights Watch, he led United Nations teams investigating massacres in the Democratic Republic of Congo and monitoring human rights in El Salvador, and he helped to prosecute human rights crimes in Haiti. He coordinated the International Commission of Jurists report “Tibet: Human Rights and the Rule of Law.” At the 1993 UN World Conference on Human Rights in Vienna, he coordinated lobbying for 2,700 NGO representatives and helped negotiate the creation of the post of UN High Commissioner for Human Rights.  His 1984 investigation uncovered atrocities by the U.S.-backed “contras” against Nicaraguan civilians and led to a halt in U.S. funding. In 2016, he represented US journalist Amy Goodman to dismiss criminal charges for reporting on an attack against Native American-led anti-pipeline protesters at Standing Rock, ND. His work has been profiled in the New York TimesNational Public RadioAl-Jazeerathe National Post, the Wall Street Journal, El PaísEl MundoEl Periódico de CatalunyaLe Monde (2006)La RepubblicaTages-Anzeigerle Nouvel ObservateurLa Croix and Le Monde (2015).  In January 2017, he was elected to the International Commission of Jurists.  He is on the Advisory Board of the European Center for Constitutional and Human Rights. He has taught regularly on accountability for international crimes, including at Columbia Law School and the American University Washington College of Law.

Multimedia

#Reporters - The trial of Chad's ex-dictator Habré, an inconvenient ally, France 24 (July 10, 2016)

Hissène Habré: Scenes from an historic trial, Human Rights Watch (May 16, 2016)

Act 1 of the Hissène Habré Trial, Human Rights Watch (July 24, 2015)

The Interview, France 24 (March 13, 2013)

Facing Justice, Human Rights Watch (February 8, 2013)

US-Backed Chadian Dictator Hissène Habré Faces War Crimes Trial in Historic Win for His Victims, Democracy Now (July 2, 2013)

Spanish Judge Disbarred in Trial Seen as Retaliation for Trailblazing Human Rights Work, Democracy Now (February 10, 2012)

His Victims Won't Forget "Baby Doc" Duvalier, Human Rights Watch (April 14, 2011)

The Dictator Hunter - Bringing Chadian Dictator to Justice, Democracy Now (June 14. 2008)

The Dictator Hunter, Global Voices (2008)

Posted: January 1, 1970, 12:00 am

Summary

It is important that I have a lawyer. It is important because whenever he comes, we will continue telling him what happened to us… I want our lawyer to stand for us in the courtroom. If it is possible, Ongwen should be convicted, and we should have everlasting peace.

—Community member, Abok Sub-County, Uganda, January 21, 2017

Ongwen as the accused has a lawyer, we who suffered should have a lawyer. It is important for us to also have a lawyer who will stand for us.

—Community member, Bungatira Sub-County, Uganda, January 17, 2017

The Ongwen Case

On December 6, 2016, the trial began for former Lord’s Resistance Army (LRA) commander, Dominic Ongwen, for 70 counts of war crimes and crimes against humanity in the International Criminal Court (ICC) in The Hague.

The LRA, a Ugandan rebel group led by Joseph Kony, originated in 1987 in northern Uganda among ethnic Acholi communities. The Acholi suffered serious abuses at the hands of successive governments in the turbulent 1970s and 1980s, and the campaign against the Ugandan government initially had some popular backing.

But support waned in the early 1990s as the LRA became increasingly violent against civilians, including fellow Acholi. The group abducted and killed thousands of civilians in northern Uganda and mutilated many by cutting off their lips, ears, noses, hands, and feet. Brutality against children was particularly severe; Ongwen himself was abducted by the LRA. The impact of his abduction on his mental capacity has become a significant issue at his trial.

The ICC issued an arrest warrant for Ongwen in 2005, although nearly a decade passed before he was in custody and transferred to the ICC in January 2015. The war crimes and crimes against humanity charges Ongwen now faces—including murder, torture, enslavement, and pillaging—stem from LRA attacks he is said to have commanded as an adult against four internally displaced persons (IDP) camps—Pajule (October 2003), Odek (April 2004), Lukodi (May 2004), and Abok (June 2004)—as well as other crimes committed in these and other communities. These crimes include the conscription and use of children under the age of 15 in hostilities; rape, sexual slavery, and forced marriage of abducted women and girls; and persecution.[1]

Initially, only people from Lukodi could apply to participate as victims in Ongwen’s trial because charges in the original arrest warrant were limited in geographic scope. Additional charges were subsequently brought in respect of Pajule, Odek, and Abok, as well as the other crimes described above. Following a January 2016 confirmation of charges hearing, on March 23, 2016, 70 charges were confirmed against Ongwen.

Two teams of lawyers represent, between them, 4,107 victims in the trial. Of these victim participants, 2,605 are represented by two independently retained or “external” counsels, Joseph Akwenyu Manoba and Francisco Cox, and 1,502 victims are represented by Paolina Massidda, the principal counsel of the ICC’s Office of Public Counsel for Victims with the assistance of a Ugandan field counsel.

Victim participation in proceedings before the International Criminal Court (ICC) is a central innovation in international justice: in addition to potentially being witnesses called by a party or the court, victims of crimes tried before the ICC may stand before the court as participants in their own right.

This right of participation is not absolute. But it can nonetheless provide a key bridge between victims and affected communities and ICC proceedings by helping to ensure that justice is not only done, but seen to be done by those impacted by the crimes being prosecuted by the court. In doing so, it has the potential to enhance the court’s legitimacy by serving victims meaningfully.

Few victims will participate in person in ICC proceedings; they participate in its trials through legal representatives.

Victims have a right under court rules to choose a lawyer. That right is not absolute—the court’s judges, for example, can ask victims to select a “common legal representative” (CLR) with the help of its Registry and, if they are unable to do so, the judges may ask the Registry to choose one for them. The Registry also has a general mandate to support victims in organizing their legal representation. These provisions theoretically give the court considerable scope to ensure that victims are informed, respected, and enabled in their choice of legal representation.

In practice, however, budgetary pressures from ICC member countries and growing caseloads mean that Chambers have increasingly given weight to cost and efficiency implications when making decisions about victims’ legal representation. Such implications are legitimate. But they have meant that Chambers have appeared to treat victims’ views on their legal representation as a relevant, but not a determinative or predominant, consideration.

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This report takes a closer look at these issues through the lens of the ICC trial of Dominic Ongwen, a former child soldier-turned commander in the Lord’s Resistance Army (LRA). He is charged with 70 counts of war crimes and crimes against humanity committed in attacks on internally displaced persons (IDP) camps in northern Uganda in 2003-2004—Abok, Lukodi, Odek, and Pajule—as well as sexual and gender-based crimes, persecution, and recruiting child soldiers.

Two teams of counsel are representing 4,107 victims at trial.

Based on court documents and policies, interviews with Ugandan and international civil society representatives, journalists, ICC officials, victims participating in Ongwen’s trial, and members of their leadership and organizing groups in their communities, this report considers how and why victims made choices about legal representation and the role the ICC played in facilitating—and at times undermining—those choices.

Drawing on the case, the report makes recommendations for the ICC’s future practice, designed to point towards a new way for the ICC to approach victims’ legal representation. This new approach should reflect a shared vision between Chambers and the Registry that prioritizes support to victims in making their own choices about representation.

Key Recommendations

To the Presidency and Chambers

  • Recommend, in the Chambers Practice Manual, the use of a sequential approach to rule 90 as best practice for addressing victims’ legal representation.
  • Amend, in close consultation with the Registry, the Chambers Practice Manual to set out the steps the Chamber and the Registry will take under rule 90, including the criteria to be used by a Chamber to determine whether it is necessary to move from victims’ free choice of counsel under rule 90(1) to victims’ choice of a common legal representative under 90(2), and, as a last resort, to a court-appointed common legal representative under 90(3).

To Chambers

  • Consider whether developments in a case require new timelines to be set to facilitate victim participation and legal representation.
  • Incorporate budgetary rationales more transparently into the reasoning process around victims’ legal representation.
  • Develop an interpretation of rule 90(5) that is realistic about the role legal aid plays in enabling choices under rule 90(1).

To the Chambers and Registry

  • In tandem with the development of criteria to be set out in the Chambers Practice Manual, develop a policy to guide the collection of information, including consultation with victims, to ensure an accurate picture informs the application of criteria in decision making about victims’ legal representation.

To the Assembly of States Parties

  • Adequately fund outreach and victim participation activities, including the allocation of dedicated resources to prepare victims to choose legal representatives.
  • Ensure funding is provided for legal aid, including support for victims’ choices of legal representatives under rule 90(1).

Methodology

This report is based on in-person and telephone interviews and email correspondence with individuals in Belfast, The Hague, Gulu, Omoro, Oyam, and Pader districts of northern Uganda, Kampala, and New York City between August 2016 and March 2017.

Human Rights Watch chose these locations because they are relevant to the trial of Dominic Ongwen before the International Criminal Court (ICC) as places where victims, interested civil society organizations, or academic experts were present. The ICC is headquartered in The Hague. In particular, communities near to the former internally displaced persons camps in Abok, Lukodi, Odek, and Pajule in northern Uganda were chosen because these are the primary locations in which the crimes alleged against Ongwen in the ICC case are said to have taken place.

Human Rights Watch conducted telephone and in-person interviews with 81 individuals.

In northern Uganda, interviews were conducted with a total of 40 individuals who told us they were victims of abuses attributed to Ongwen, involved in victims’ associations or serving as a link between the ICC’s activities and the community, or victim participants in the Ongwen trial.  Of these, 27 individuals were interviewed individually in locations in or near to Lukodi, Pajule, and Abok; one group interview was conducted in Odek.

Present at these interviews were one or more Human Rights Watch researchers, an interpreter as needed, and the interviewee(s). Individual interviews generally lasted for about an hour, and group interviews lasted about two hours. Some of these interviews were conducted in the interviewee’s home, and other interviews were conducted in a central location to which interviewees travelled. In footnote citations, we have referred to the locations of interviews by the name of the sub-county. In the text, we have often used Abok, Lukodi, Odek, and Pajule to refer generally to the broader communities which were displaced into the camps at these locations.

The members of the victims’ associations, who were identified to us primarily through a local civil society organization, also assisted us in organizing individual interviews, but were not present during them. Consistent with Human Rights Watch practice, no one was paid for interviews, but some individuals were reimbursed costs incurred to travel to meet with us. Members of victims’ associations who assisted in organizing the interviews were also paid for their time.

We did not seek to verify the identity of these interviewees as individuals recognized by the court as victim participants in the Ongwen case. Victim participants in that case have requested that their identity be kept confidential in court proceedings. Rather, Human Rights Watch relied on members of victims’ leadership groups or community mobilizers to identify victim participants and asked those interviewed whether they had applied to participate. Of the 27 people interviewed individually, 24 indicated they applied to participate.

Given their limited number, our interviews in these communities are not intended to be a representative sample of victims’ views, or provide an authoritative account of victims’ understanding about their legal representation in the Ongwen trial. The purpose of these interviews was to give the interviewees an opportunity to explain, in their own words, how they had chosen a legal representative and whether they, as individuals, felt they had exercised a genuine choice. Human Rights Watch researchers did not ask interviewees about the nature of the alleged crimes committed against them as it was not material to the report and Human Rights Watch sought to avoid the risk of re-traumatization. In some cases, however, individuals volunteered this information.

We also did not seek to evaluate the quality of legal representation provided by counsel. The victims Human Rights Watch spoke to volunteered that they were generally happy with their legal representation. Indeed, some victims did not distinguish between the two teams.

Human Rights Watch also interviewed by telephone or in person several ICC staff members (often in group settings), representatives of 10 civil society organizations, 2 journalists, and 2 international or transitional justice experts with experience working in northern Uganda.

Almost all the individuals that we interviewed did not wish to be cited by name, including, in particular, those who were concerned to keep their status as victim participants confidential. We have used generic terms throughout the report to respect their privacy.

Victims’ Legal Representation Before the ICC

The victim participation framework established by the Rome Statute of the International Criminal Court (ICC) is a “milestone in international criminal justice” which is “part of a consistent pattern of evolution of international law… which recognizes victims as actors and not only passive subjects of the law, and grants them specific rights.”[2]

At the ICC, victims are permitted to participate in criminal proceedings in their own right, that is, to make their views and concerns known to the judges on matters that concern them, rather than be involved simply as witnesses. This right is provided to victims under Article 68(3) of the Rome Statute.

Aware that “no such allowance [regarding victim participation] was made” at previous international criminal tribunals, Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, argued that the ICC’s system of victim participation recognizes that the victims of modern atrocities are “central to the notion of international criminal justice.”[3]

The framework of victim participation is key to the ICC’s impact in affected communities, which, together with victims, are among the chief stakeholders in the court’s work. Although only a narrow subset of victims in a given situation are likely to be recognized as victim participants, the ICC is effectively recognizing that the crimes alleged have impacted the victims when they are permitted to participate in its proceedings, incorporating their experiences and perspectives into the trial.

Victim participation creates a link between The Hague and the victims and, in doing so, hopes to make the proceedings more meaningful and relevant to them. It has the potential to be a significant factor in ensuring that justice is not only done, but seen to be done, by the victims. Ideally, contributions by victim participants to the trial, if properly structured, will also have forensic value.[4]

“Participation” in this context does not mean that victims have a role equivalent to the prosecution or the defense. Rather, they participate in a trial by presenting their “views and concerns” on particular issues at various stages of proceedings. For example, victim participants may be allowed to make opening and closing statements at the trial, or provide evidence that assists the court to determine whether the accused is guilty.[5]

Article 68(3), the Rome Statute provision governing the general right of victim participation, grants the court’s judges considerable discretion to decide when and how victims participate to prevent prejudicing the rights of the accused.[6] Although the ICC’s responsibility to make participation as meaningful as possible does not displace other priorities, such as expeditious proceedings and the rights of the accused, it is not a responsibility that can be ignored without risking the court’s legitimacy.

Participation through Legal Representatives

Victims largely participate in proceedings through their legal representatives. This in turn means that “[t]he quality of the legal representation victims receive is essential to their meaningful and effective participation in ICC proceedings.”[7]

Victims’ legal representatives must have a range of competencies, including the ability to:

  • Effectively engage and consult with victims in the field to understand their views and concerns. A community mobilizer said: “The court is going to win it because we have told them the truth … [the lawyers] said what we told them.”[8]
  • Play a dual role in court by contributing to the proceedings through communicating the views and concerns of victims, and providing victims with a point of reference and familiarity in an otherwise unfamiliar environment. As one victim said: “I saw [Ongwen’s lawyer], I saw [one of the victims’ lawyers], I even saw Ongwen. When I saw our lawyer, I was very happy.”[9]

The ICC’s court-wide strategy on victims identifies “effective legal representation” as an element of ensuring the right of victims to fully exercise their rights of participation.[10] ICC court decisions have repeatedly articulated the need to “ensure that the participation of victims, through their legal representative, is as meaningful as possible, as opposed to purely symbolic.”[11]

Several court actors share overlapping responsibilities for achieving this objective (see chart).

ICC Registry

Before ReVision

Relevant Roles

After ReVision

(in situations with field offices)

Outreach Unit of the Press Information and Documentation Section

  • Organize informational activities in communities
  • Provide victims with general information about the court
  • Provide victims with specific information about victim participation in court proceedings

Field Offices*

(*in coordination with the Outreach Unit and VPRS) 

Victims Participation and Reparation Section (VPRS)

  • Assist victims to fill out victim participation and reparation forms
  • Provide victims with notice about decisions that affect their interests
  • Assist victims and the court in the selection and appointment of counsel

Office of Public Counsel for Victims

  • Provide independent support and assistance to victims before they find legal representatives
  • Support and assist victims’ legal representatives
  • Act as legal representative for victims upon being appointed by the court

Organizing Legal Representation

The organization of victims’ legal representation is addressed in the court’s Rule of Procedure and Evidence 90.

RULE 90

Legal representatives of victims

  1. A victim shall be free to choose a legal representative.
  2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives.
  3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives.
  4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented and that any conflict of interest is avoided.
  5. A victim or group of 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.
  6. A legal representative of a victim or victims shall have the qualifications set forth in rule 22, sub-rule 1.

Rule 90(1) establishes a protection for victims’ choice of counsel.

Victims’ choice matters because it can be a way for the victims represented to develop confidence that the counsel who stands for them before the court will represent their views, in turn building confidence in the court process itself.

One interviewee said:

It’s important to choose a lawyer because he will represent my views on my behalf. The meeting [between the community and lawyers seeking to act as the legal representative] helped with the choice. It helped because the government didn’t interfere with it, and I trusted the lawyer. It was of my own free will.[12]

Another interviewee said:

We decided to choose [the lawyer] because he was close to us… We sat at a meeting to decide this. So many people were there. Names of lawyers were brought in a book. We heard [the lawyer] and chose him… I saw the trial on the screening… Saw [the lawyer] there. I was pleased to see him deliberate in the court because he is a good man.[13]

Choice is by no means the only or even the most important aspect of effective representation. As discussed in Sections II and IV, the people we spoke to who had participated in the decisions about counsel did so on a spectrum, with some accepting choices made by community leaders. Many interviewees spoke to us of the importance they also attached to seeing their lawyers represent their views during screenings of court proceedings.

But the ICC needs to take every opportunity it can get to deepen its local impact, including its legitimacy. The system of victim participation should empower victims in the legal process, and supporting and understanding victim choices when it comes to who will stand for them in court can be an important starting point.

However, numerous Chambers have provided that the right to choose a legal counsel in rule 90(1) is not absolute. Rather, it is qualified by rule 90(2) and (3), which describe how “common legal representation” (CLR)—the representation of victims collectively by a lawyer or team of lawyers—should be arranged.

Common legal representation requires victims to join into “de facto compelled group representation,”[14] subject to any applicable rights of review.[15] The CLR framework is “the primary procedural mechanism for reconciling the conflicting requirements of having fair and expeditious proceedings, whilst at the same time ensuring meaningful participation by potentially thousands of victims, all within the bounds of what is practically possible.”[16] Victims who do not like the CLR appointed by the court may of course opt out of the case, but this is a “drastic decision that leaves the victim with no alternative methods of participation.”[17]

Under rule 90(2), the court may require that CLR be organized where “there are a number of victims” to “ensure the effectiveness of proceedings.”

Rule 90 sets out two ways of organizing CLR:

  1. Under rule 90(2), the Chamber may “request” that the victims “choose a [CLR]” with the assistance of the Registry;
  2. Under rule 90(3), if “the victims are unable to choose a [CLR] within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose” a CLR.

While rules 90(2)-(3) qualify the choice of counsel protected in rule 90(1), both the Rules and the corresponding court regulations reflect a concern that the appointment of counsel remains informed by the choice of victims or by their interests.

Regulation of the Court 79 sets down the process for the Registry’s choice of CLR under rule 90(3). It provides that the views of victims “should” be considered and allows victims to request that the Chamber review a decision by the Registrar made under rule 90(3).

In contrast, a Chamber itself may use Regulation 80 to appoint a victims’ legal representative where “the interests of justice so require” and “following consultation with the Registrar and, when appropriate, after hearing from the victim or victims concerned.” The decision is not reviewable. Regulation 80’s flexibility reflects these differences in language and that it is part of the Chamber’s suite of “inherent and express powers… to take all measures necessary if the interests of justice so require.”[18]

Trends in the Organization of Common Legal Representation

In almost all cases, the ICC has intervened in victims’ legal representation by appointing lawyers as CLRs.[19] As the graphic below illustrates, in so doing, the court has historically experimented with several different approaches to the organization of CLR under rule 90(2) and (3). Despite considerable variation, the Chambers and the Registry have approached the organization of CLR across the court’s cases in roughly three stages.

  1. First, the Chamber will issue an order, setting out the basis for the intervention into victims’ choice and directing the Registry, in general terms, as to how it should proceed in its consultations and other interactions with victims. Sometimes, but not always, the Chamber will direct the Registry to act under rule 90(2) or (3).
  2. Second, the Registry will then engage with victims, with the intention of assisting them in choosing a CLR under rule 90(2) or, if rule 90(3) is invoked, to assist the Registry in deciding who is an eligible candidate for CLR.
  3. Third, at the end of the process, the Registry will report to the Chamber on its activities and, if acting under rule 90(3), will generally—but not always— recommend that the Chamber approve a CLR.

Some broad trends may be observed from the court’s practice prior to the Ongwen case.

The most significant trend is the move away from a “sequential approach” to rule 90(2) and (3). The “sequential approach,” a term coined by REDRESS, treats sub-rules (2) and (3) as providing a structured process of decision making that allows victims to attempt to organize their own CLR before that control is relinquished to the Registry and the Chamber, should victims be unable to agree.[20] The Chamber ordered the Registry to undertake the sequential approach, with varying degrees of fidelity and victim involvement, in the Lubanga, Katanga and Ngudjolo Chui, Bemba, and Banda and Jerbo cases. The organization of legal representation in these cases took place between 2008 and 2011.

However, after this initial batch of cases, the sequential approach to rule 90 fell out of fashion. This appears to be because the Registry began to view the degree of consultation required to assist victims in choosing their own legal representation as a serious burden, complicated by logistical and security reasons.[21]

Around the time of the Kenya cases and the Banda and Jerbo case in 2011, the Registry proposed a new “systematic approach” to organizing CLR with three components:

  • “early action on CLR”
  • “meaningful consultation with victims” and
  • “an open transparent and objective selection process.”[22]

The Registry was concerned that its previous approach, in which CLR was organized relatively late in the pre-trial process and made use of the existing arrangements made between victims and counsel was encouraging “fishing,” that is, the solicitation of clients by counsel in order to improve the odds they would eventually be appointed CLR.[23]

The Registry adopted six criteria to guide its identification of a candidate that could be proposed to the Chamber under rule 90(3).[24]

The adoption of this new systematic approach emphasized the power of the Registry and the Chamber to oversee CLR, and marked a transition towards using the top-down approach set out in rule 90(3) by default. After the systematic approach was introduced by the Kenya cases, the Chamber has not invoked rule 90(2) as a specific and primary basis for organizing CLR. In pretrial proceedings in Gbagbo and Ntaganda, in 2012 and 2013, the court organized CLR before or at the time that victims were admitted to participate in the case.[25] In these cases, the registry consulted victim applicants regarding the qualities they would want in a lawyer.

As a corollary to the systematic approach, Chambers have increasingly used Regulation 80 of the Regulations of the Court to appoint members of the court’s Office of Public Counsel for Victims (OPCV) as CLR. Regulation 80(1), in its present iteration, permits the Chamber to appoint a legal representative for victims in the interests of justice. Regulation 80 has been used in this way in the Gbagbo, Ntaganda, and Ongwen cases,[26] as well as during the admissibility challenges to the Gaddafi and Al-Senussi cases.[27] Before that time, it was also used to appoint OPCV counsel as assistants to teams of CLRs,[28] and, in the context of cases arising out of the Darfur situation, to appoint an external counsel to represent unrepresented victims until they obtained legal counsel of their own.[29]

Consistent with Regulation 80’s more flexible language, the Chamber has typically relied on the Registry’s reporting of victims’ views when deciding whether to exercise Regulation 80, but has not treated itself as bound to appoint the candidate the Registry recommended under rule 90(3). The Gbagbo Pretrial Chamber’s judge rejected the recommended candidate,[30] and in pretrial proceedings in Ntaganda, the Registry did not make a recommendation.

Overall then the trend for organizing CLR—apparently driven by efficiency and economy—has been away from rule 90(2) and, to some extent, 90(3), and towards Regulation 80.

In Gbagbo, for example, the Pretrial Chamber’s judge appointed a member of the OPCV as CLR under Regulation 80, to be assisted by team member based in Côte d’Ivoire and subject to any further revision at the trial stage, because:

…of the short time remaining until the scheduled date for the confirmation hearing…. this is the most appropriate and cost-effective system at this stage as it would … combine understanding of the local context with experience and expertise of proceedings before the Court, without causing undue delay in the case at hand.[31]

Similarly, in Ntaganda, the Pretrial Chamber’s judge appointed the OPCV as CLR under Regulation 80 because it was expected that the victims would rely on the ICC for legal aid (see below). The Chamber’s judge considered the decision justified considering the OPCV’s experience in the Congo and the limited scope of the confirmation of charges hearing.[32] This decision to appoint the OPCV overrode the powers of attorney submitted by some applicants in favor of six different lawyers, which the Chamber’s judge considered to be too financially onerous. At trial in both cases, the Chambers confirmed that victims were satisfied with their legal representation and retained the pretrial CLR arrangement.[33]

Use of Regulation 80 to appoint OPCV as common legal representative is the instrument the court has used for reasons of cost and efficiency.

Legal Aid and Legal Representation

Most victims cannot afford to retain their own lawyers, and need legal aid, which the ICC’s budget, funded and approved by member countries, sets aside for victims’ counsel.

As discussed below, a key issue in Ongwen is whether rule 90(5) restricts the court’s legal aid to counsel “chosen by the court” as the common legal representative:

A victim or group of 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.

This is not a new idea; Chambers have occasionally raised this interpretation of rule 90(5).[34] Nonetheless, historically “[i]n practice, the legal representatives of victims [have been] without exception paid for by the Court.”[35] Victims who chose their own counsel under rule 90(1) in the Lubanga, Katanga, Abu Garda, Banda and Jerbo, and Mbarushimana cases received legal aid,[36] although CLR was eventually organized in all but the Abu Garda case.

The issue of who is eligible for legal aid has become more significant as budgetary pressure on the court has mounted. A group of ICC states parties, including some of the ICC’s largest contributors, have pushed for a “zero nominal growth” court budget that would not even increase to adjust for inflation.[37]

Reductions in legal aid have often been a target. State parties have considered whether appointing OPCV members could be a more cost-effective alternative to the appointment of what are referred to as external counsel.[38] States parties have also pressed the court to increase the efficiency of proceedings, a concern often raised in tandem with concerns about cost.[39]

A proposal within the context of the ReVision, a framework for reorganizing the Registry directed at “two essential criteria: cost-effectiveness and fairness,” would have abolished the Victims Participation and Reparations Section (VPRS) and OPCV and combined their functions into a “victims’ office,” including an internal pool of lawyers from which victims’ counsel would be appointed, with the possibility to add an “ad hoc ‘external’ counsel” for each case.[40] The International Federation of Human Rights has observed this approach derived from that of the Pretrial Chambers in Gbagbo and Blé Goudé and Ntaganda.[41]

The ReVision proposal for a victim’s office, later revised to mandate external counsel as lead counsel, supported by an in-house pool of lawyers,[42] would require the judges to amend the court’s regulations and has not been implemented.

It triggered a long-standing debate about the role of OPCV versus that of external counsel in the representation of victims. Some civil society organizations with a mandate to monitor ICC performance, including Human Rights Watch as a member of the Coalition for the International Criminal Court team on legal representation, have said there are advantages to having external counsel involved in representing victims, including ensuring that victims’ legal representation is perceived as fully independent from the court.[43] This debate is not the subject of this report. It is clear, however, that budgetary constraints add pressure to court decisions regarding the organization of victims’ legal representation.

II.Informing Victims’ Choices

In the Ongwen case, the Pretrial Chamber’s judge did not implement a rule 90(2) or (3) process. Instead, motivated by several factors (see below), several victims signed powers of attorney with two counsel ahead of the January 2016 confirmation of charges hearing in the case, outside any court-organized process for choosing legal representation.

Court Activities in Lukodi

Although the ICC had sought Ongwen in relation to the attack on Lukodi since 2005, he was not in custody until he defected from the LRA, ending up in the hands of US and Ugandan forces in Central African Republic on January 6, 2015.[44] He was ultimately delivered to the ICC.

This was not the beginning of the court’s work in northern Uganda, however. The Registry gradually began conducting activities in northern Uganda over time, after the ICC’s Office of the Prosecutor (OTP) opened investigations in 2004. These activities included “outreach” activities, designed to improve the affected communities’ understanding and awareness of the ICC’s work and the role of victims in the court’s processes. As part of its outreach, the Registry conducted workshops with civil society organizations, the legal profession, and community leadership groups; participated in radio and television programming;[45] and, since 2007, engaged with victims across northern Uganda, including through community outreach in Lukodi.[46]

During this period, the VPRS began to accept applications for victims who wished to participate in the ICC’s investigations and activities in the northern Uganda situation as a whole, in addition to the case opened in 2005 against Joseph Kony, Ongwen, and three other senior LRA commanders. However, very few of these applicants were ultimately involved in the charges against Ongwen, and even fewer were from Lukodi, Pajule, Abok or Odek.[47]

Over time, the ICC and victims in Uganda engaged less and less. According to the Registry, this was because there had been no arrests or developments in the situation, and victims saw few prospects for reparations.[48] Lack of progress led the Registry to scale down its outreach activities.[49]

The situation changed when Ongwen was arrested, and his arrest warrant was unredacted in January 2015. The unsealed arrest warrant made clear that the charges focused entirely on Lukodi. Given the court’s caselaw, this meant only victims from Lukodi were eligible to be recognized as victim participants.

At the direction of the Pretrial Chamber’s judge in March 2015, the Registry began to intensify its work, both through general outreach and facilitating the application process for potential victim participants. [50] As a matter of general practice, the Registry discovers whether a person is eligible to participate in the case by reviewing the information they provide in “victim application forms” collected by the VPRS.

This initial collection of victim application forms in June 2015 marked a “first phase” of victim applications. During this first phase, the ICC was focused on the victims in Lukodi and, unlike the second and third phases discussed in Section IV, there were not yet two teams of lawyers involved in the case.

Role of the CORE Team

In conducting outreach and collecting victim application forms in Lukodi, the ICC benefited from the existence of a community leadership structure, known as the Community Reconciliation (CORE) Team. The structure was organized in 2010, when a local civil society organization, the Justice and Reconciliation Project (JRP), began to discuss with the people of Lukodi the idea of “community-led documentation” of the LRA attack.

During these discussions, some community leaders proposed that they meet regularly to facilitate discussions about bringing the community together, organizing to lobby for compensation for the attack, and building a memorial to the victims of the attack, leading to the creation of the CORE Team.[51]

The Lukodi CORE Team has existed in its present form since 2012. The JRP had been engaging with about 10 local community leaders, who identified others who might be interested in working on victims’ issues. A group of 25 was eventually presented to a community gathering in Lukodi, who were asked whether they accepted the group as their CORE Team.[52]

Once Ongwen was brought before the ICC in January 2015, civil society organizations introduced ICC staff to the CORE Team.[53] With the assistance of the CORE Team, outreach staff adopted a strategy of travelling parish by parish in Lukodi, going to individual villages and at times individual homes, and engaging with community members about the ICC’s work and the potential for victims to participate.[54] At these meetings, outreach staff would provide information about the court and answer questions. They provided general context about, for example, the referral of the Uganda situation to the ICC, the nature of an ICC trial, and the specifics of the Ongwen case before explaining victim participation and representation.[55]

The outreach staff’s messaging on victim participation and representation explained the distinct role that victims played in the trial, distinguishing them from witnesses and explaining that victim participation was different to the concept of reparations. The victim participation application form and the role of VPRS was explained. Outreach staff also explained the purpose of legal representation to victims, that they could not all go to The Hague, and why it was important to have legal representation. The purpose of this messaging was to lay the groundwork for the VPRS, with whose staff these messages were developed and coordinated. Outreach staff broadcast the same messages over the radio.[56]

The VPRS began to collect victim participation application forms from victims in Lukodi in July 2015, recruiting and training local university students to act as translators and assist victims to fill in the forms.[57] The VPRS also organized meetings with victim applicants in Lukodi to help them fill out applications and answer questions about the forms.[58] The VPRS consulted applicants on their preferences for legal representation, namely whether one lawyer could represent all victims participating in the case and what qualities they wanted in a lawyer.[59]

As it had for the outreach team, the CORE Team assisted the VPRS by acting as a “bridge.”[60] For example, the CORE Team would organize meetings at different villages at which the students would assist victims to fill in victim application forms and would communicate information to the victims on behalf of the VPRS.[61]

The Registry’s strategy of engaging with the local leadership on the ground and using it to access villages in Lukodi appears to have been successful. In contrast to a previous study about the level of knowledge of the court in northern Uganda among victim participants, conducted between July 2013 and February 2014,[62] people interviewed in Lukodi in January 2017 for this report had an overall good level of knowledge about the ICC’s work and the Ongwen case.

Registry staff worked exceptionally hard to communicate with communities in northern Uganda with limited resources and within the brief time frame set by the Pretrial Chamber—roughly nine months from the date the Registry was tasked with initiating activities. One civil society representative described the process as a form of “crisis management.”[63]

Concerns in Lukodi

As the ICC began to roll out its activities in Lukodi, information began to filter into the community about the progress of Ongwen’s pretrial case, raising anxieties. A CORE Team member told Human Rights Watch that the team had heard that “the defense lawyer was saying to the judges that Ongwen should be released. We thought that the defense would get Ongwen released, and the struggle would become meaningless.”[64]

The CORE Team also did not want to risk material facts being left out by the prosecution, and, moreover, felt the judges would not fully appreciate the seriousness of the attack unless victims themselves explained what happened. The CORE Team members Human Rights Watch spoke to felt that being denied the opportunity to [put victims’ views before the court] would “affect how victims feel about the court.”[65] They were equally concerned to respond to the views of some of the religious and cultural leadership in the Acholi sub-region, who had argued that Ongwen should receive amnesty, like thousands of other LRA fighters, and be released because he had been abducted as a child.[66]

The CORE Team members told Human Rights Watch that this anxiety was exacerbated because they effectively felt disconnected from the process in The Hague due to a lack of engagement with a legal representative: “Ongwen was assigned a lawyer automatically” and that “[f]rom January… OCPV was there, but there was no information reaching the victims.”[67]

This raises another driver of the leadership’s anxiety: it was unclear to them who was acting for, and responsible to, victims at this early stage. OPCV counsel had been appointed to represent certain situation victims since around February 15, 2008, as well as some case victims of the Kony case,[68] and in March 2012 was appointed as the “legal representative of all victims and victim applicants” in Uganda, “irrespective and outside of the context of any case which has arisen or may arise from that situation.”[69]

Technically, the people in Lukodi who had not yet applied to participate in the situation or the case would not have been “victim participants” or “victim applicants” and so would not have fallen within the scope of the OPCV’s responsibilities. In any event, before the case got off the ground in early 2015, the OPCV indicated that “in the absence of judicial activities, [its] presence in Uganda was not warranted and resources requested to undertake missions to meet with victims were systematically cut from the Office’s budget. Victims have been made aware of this situation several times via intermediaries and via the VPRS, which benefits from a continuous field presence in the country.”[70] 

A CORE Team member spoke about the situation in the following terms:

When the government took the case to the ICC, a lawyer was assigned as victims’ lawyer. We were told about that. Paolina was her name. [This was] in 2008. This was new information. We learned that we had been assigned a lawyer. But the lawyers were not seen here. She said she couldn’t do anything, because the work had not yet started.[71]

Another member of the CORE Team told Human Rights Watch:

I wanted a lawyer who would come and get info from us to take it to the ICC for us, and always be in contact with us, someone who…would be hardworking for us… Paolina wasn’t coming and the court was doing things. We had our own thought, about who we thought would represent us well. We were worried that we couldn’t participate without the lawyer.[72]

The lack of a present and attentive representative in northern Uganda created unease. It appeared to the leadership that the case was proceeding but there was no lawyer in court representing the interests of all the victims. And while the ICC’s activities to support victim participation process commenced relatively quickly after Ongwen’s transfer, by January 2015, communities in northern Uganda had been waiting for almost 10 years for proceedings to open before the ICC.

The Uganda Victims Foundation (UVF) questioned the OPCV’s role in an amicus brief it  wanted to submit in March 2015.[73] The UVF alleged in its application—rejected as premature—that over the 10-year life span of the case, the OPCV had given victims “very little communication,” and it was “duty bound to explain to the victims of the case why the proceedings had not commenced, any obstacles in the apprehension and prosecution of the suspects in the case; as well as answer any questions that the victims had regarding their status as well as the possibility of reparations.”[74]

Search for a Lawyer

Concerned about lack of representation and the possibility of Ongwen’s release, the CORE Team began to search for a lawyer while victims filled out application forms between June and October 2015.

The ICC had explained to the victims at village meetings that they had a right to choose a lawyer.[75] Additionally, while filling out the application forms, some victim applicants had realized the court was asking them about a lawyer.[76]

According to the members of the CORE Team with whom Human Rights Watch spoke, once the CORE Team realized victims could choose their own lawyer, they wanted to move ahead as they were worried that the situation was getting “out of hand,” and that Ongwen would be released and would destroy evidence or harm victims.[77] One interviewee said the leadership had expressed its anxieties to victims and had been told that “[the ICC] will give us lawyers but … would appoint the lawyer unless we chose. It was best if we chose.”[78]

The CORE Team began telling the VPRS that the Lukodi victims wanted to choose their own lawyer. In response, VPRS staff started to provide the CORE Team with names of Ugandan lawyers, including those on a “list of counsel” the ICC retains. The VPRS also reached out to international civil society organizations to broaden the list of counsel who could potentially represent the victims in Lukodi, and requested Ugandan civil society organizations, including UVF, come and speak to the community about legal representation.[79]

The VPRS gave victims information about their rights under rule 90; how rule 90 had been applied in previous cases; and the fact that legal aid might not be available to assist all victims in obtaining legal representation. These were the only actions VPRS could take without orders from the Chamber to the Registry to proceed with organizing CLR.[80]

Lawyers had also begun coming to Lukodi and speaking with the CORE Team, saying they wanted to represent the victims.[81] Once the decision was made to find a lawyer, the CORE Team began to meet with victims in the communities and facilitated meetings between lawyers and the communities. Joseph Akwenyu Manoba had initially met with and presented his credentials to the Lukodi leadership and “some victims” in September 2015 after being invited to do so by one of the CORE Team.[82] His reputation preceded him; the Lukodi CORE Team were aware of UVF and were reportedly impressed by his relationship with them. Furthermore, the CORE Team members who spoke to Human Rights Watch were convinced that the association with UVF revealed “he had the heart” to advocate on behalf of the victims.[83] The CORE Team told us that the external counsel had requested permission from them to approach groups of victims to explain his intentions and provide information.[84]

The external counsel ultimately organized three missions to meet with victims in Lukodi. At these meetings, they had “interacted” with victims about “the role of a legal representative; the right of a victim to choose counsel of their choice; the nature of victim participation in proceedings at the Court etc.”[85] Counsel reported that 858 victims had given them powers of attorney and 450 victims had selected them “through means of direct nomination in the course of completion of the participation form.”[86]

The 10 people Human Rights Watch interviewed in Lukodi provided some more detail on the way victims had been organized to select a lawyer,[87] generally variations on a common process. Typically, they described group meetings in which members of the CORE Team would organize general meetings, at which the external counsel and, at times, other lawyers, were present, and where victims would choose a lawyer.

Four interviewees attended a meeting of this kind where the external counsel was present,[88] and two more attended a meeting where people were presented with the external counsel by the CORE Team and then “accepted” him as their lawyer.[89] Five of those six people were sure they were represented by the external counsel,[90] and the other person claimed she had chosen him but was instead represented by the OPCV counsel.[91]

The remaining four interviewees had not attended meetings. Of those four, one indicated she was represented by the external counsel;[92] another, a child, said she was represented by the OPCV counsel;[93] and the other two were not sure or did not respond to questions about which lawyer represented them.[94] One of those two interviewees was simply told by the local council leader that she should “wait for the lawyer.”[95] Another told us that he had “heard from the community about the lawyer” but could not really remember how this information had been relayed.[96]

The six interviewees who had clearly attended a meeting with the external counsel indicated that it was important to them to have chosen him based on an assessment of his character. One interviewee told us that she had gone to see him speak at a general meeting at the Lukodi school and had chosen him “based on personal belief. He spoke with me and I became convinced.”[97]

Another interviewee noted that he had chosen Manoba because of the time he had taken to do a presentation. Manoba had said at that meeting that he would “stick with the community,” which the participant said, “impressed him.”[98] A member of the CORE Team, reflecting on the process in his capacity as a victim, recalled being impressed by a presentation by the external counsel team: “They seemed very truthful.”[99]

One of the important things that emerged from Human Rights Watch’s interviews with victim participants, however, is that not all appear to have been given a “choice” in the sense that alternatives were provided. As one interviewee who had attended a meeting with the external counsel explained it, “the CORE Team made a choice” that the community then readily accepted and did not appear to question.[100] For her, the “choice” was more of an endorsement or ratification of the lawyer the CORE Team presented.

This interviewee had attended a meeting where the CORE Team had said that the lawyer they had brought was “good, educated, and had taken law” and Manoba “said that he would work very hard for Lukodi.”[101] The CORE Team then told the victim participants that as a group they had the right to choose, and “if this lawyer is not doing the right thing, [the victim participants] have the right to reject him.” The interviewee expressed her trust for the CORE Team, which “had been in contact with this lawyer and the ICC, so the decision they came to was the right decision.”[102] The participant ultimately accepted Manoba as the lawyer because, “[w]hat he said was satisfactory…. If what he had spoken was not satisfactory, I think the community would not have chosen him.”[103]

Another interviewee, who had also been at a meeting where the group was presented with Manoba, said that she was glad the CORE Team had acted to bring a lawyer to meet their community:

We were not surprised, we were happy… The ICC was about to begin [and] we were just here, but without a lawyer. And Ongwen had a lawyer.[104]

She said that the idea to choose a lawyer had come about during ICC outreach activities, and that subsequently people who she believed to be ICC staff and the CORE Team had returned with one.[105]

Codifying Choice

The picture that emerges from the above account is one in which victims’ leaders, spurred by anxieties about a lack of representation in the courtroom, acted to organize victims in a remarkably participatory way to choose a team of legal representatives. This situation, and the degree of proactiveness and organization of the victims’ leadership, is entirely out of sync with the premise of the systematic approach.

Ordinarily, the systematic approach calls for early intervention into victims’ decision making, with the effect of preempting the kind of organic, community-driven approach to organizing legal representation that occurred here. When the CORE Team took matters into its own hands, the Registry, lacking authorization to conduct its now standard approach to organizing CLR under rule 90(3), and apart from consulting victims on basic preferences about legal representation, limited its role to providing information about rule 90 and giving victims information about choosing lawyers.

This is an entirely appropriate response to the situation. Where there have been no orders made by the Pretrial Chamber, there is no legal basis for the Registry to intervene in victims’ decision-making. Rule 90(1) is, at this stage, in full effect. To the extent that it is appropriate for the ICC to intervene at this point, it should be done by educating victims about the purpose of legal representation, providing information about lawyers on the ICC’s list of counsel, making clear the possibility that their choice can be displaced should the court decide to organize CLR, and communicating the limits regarding the availability of legal aid.

Moreover, it is positive that victims be allowed to organize their own legal representation. The leadership’s anxieties, even based in part on a misconception about the OPCV’s role, reflect a deeper urge to participate in the process through their legal representatives. Therefore, the leadership’s actions and the involvement of victims reflect a view that Ongwen’s trial is important for victims, which supports the ICC’s legitimacy and purpose.

There was some confusion about the power of attorney. One civil society organization representative told us that “[t]here is a need to educate victims about what constitutes a power of attorney. Victims accept what they’ve been told.”[106]

The victims Human Rights Watch interviewed generally placed a far greater importance on the process of consensus or acclamation by which the community endorsed Manoba as their lawyer. Some victims in Lukodi did not appear to understand that it was important that they sign the power of attorney, as opposed to signaling their consent in other ways to secure their lawyer-client relationship with Manoba. For example, one victim described a meeting in which Manoba made a presentation and the community accepted him via consensus. The CORE Team then filled out the collective power of attorney—what the victim described as a “form”—in accordance with the group consensus that Manoba be chosen as the victims’ lawyer.[107]

This had knock-on implications in a number of cases. Two interviewees told us that they had filled out forms for children to accept Manoba as their counsel but that the children had been assigned to the OPCV instead.[108] Another interviewee believed she had accepted Manoba as her lawyer at a meeting but was later told that she was represented by Massidda. When she asked why, she was told that there were two forms and that she had not filled out the second form. Accordingly, when the forms “went to The Hague, they sorted out people who did not fill the second form, and those people have Paolina [Massidda].”[109]

The interviewee was not concerned that she had been assigned to OPCV counsel—she had seen the OPCV counsel speak during a screening and was happy because “I knew she would speak for us.”[110] Another interviewee, who had attended a meeting with Manoba and other lawyers, said an “attendance list” was taken after the decision to choose Manoba was made that everyone signed, which he understood was “an agreement” that Manoba be the lawyer.[111]

It is concerning that the victims to whom Human Rights Watch spoke did not place particular significance on the power of attorney; however, for the few victims Human Rights Watch spoke to in Lukodi at least, they did not feel coerced or unclear as to what was happening. The four victims who told us they had filled out the “attendance list,” or had it filled out for them, did so because they wanted to affirm the choice they had made. It would be far more concerning, and inconsistent with the principles of agency, if the victims Human Rights Watch interviewed had not understood what was happening.

III. Respecting Victims’ Choices

Victims in Lukodi, animated by their own concerns, selected their lawyer in a way that was very different to the court’s practice under the systematic approach. Rather than being consultees, or a factor to be balanced in an overall calculus of decision making about CLR, victims’ leaders developed their own ad hoc approach based upon their own perceptions of the process and the need to protect their own interests.

That the victims in Lukodi were informed about their choice, and decided to exercise it, is an example of rule 90(1) working well. At least on the story Human Rights Watch heard from the CORE Team and some of the victims, the victims wanted to have confidence in the proceedings and protect their interests so they chose a lawyer. The Pretrial Chamber’s reaction, particularly with respect to the issue of legal aid, however, undercut the victims’ choices, even if its reasoning was notionally respectful of their choice.

The Pretrial Chamber’s Decision

In one of its routine reports about victim applications, in September 2015, the Registry noted that it had not received any indication that victims had already chosen counsel, and, as noted above, that it was collecting information regarding victim preferences on legal representation to assist any eventual rule 90 process. It went on to suggest, notwithstanding the possibility that the charges could still be expanded, that:

In the interests of ensuring an efficient and meaningful participation of victims during the Confirmation of Charges Hearing, the Registry would nevertheless recommend the appointment of a CLR as early as possible, and to this end, would like to indicate its availability to implement any order the Single Judge may wish to make under rule 90(2) or 90(3) of the Rules.[112]

The Registry further indicated that, once an order of this kind was given, it could conduct a transparent selection process for a CLR team, potentially including OPCV counsel.[113]

By October 2015, however, the Registry had received 89 powers of attorney from victims nominating the external counsel as legal representatives, and indicated to the Pretrial Chamber that victims were concerned to have their chosen legal representatives appointed as soon as possible.[114] The judge of the Pretrial Chamber decided that “only when being informed of which victims have validly chosen legal representatives, and which legal representatives they have chosen, can the Single Judge consider questions such as common legal representation or the need for appointment of a legal representative in the interests of justice.”[115]

The Chamber’s judge ordered the Registry to “verify and, if appropriate, acknowledge” the powers of attorney.[116] The Registry’s responding “Power of Attorney Report” verified not only the form in which the powers were received but the substance of the decisions made by victims. This included providing a summary of the team of external counsel’s credentials.[117]

ICC staff told Human Rights Watch that the Registry had become concerned that the powers of attorney had not been filled out properly, in that it appeared that some of the names had not been written correctly, and took notice of the fact that the team of external counsel had indicated that they would act pro bono on the powers of attorney.[118] The external counsel had explained that it meant they would not charge victims for representation, and intended to seek financial assistance from the court instead.[119]

The Registry’s principal means of verification was to consult with 38 victim applicants[120] about their choice of legal representative, concluding that the “vast majority” of victims had “a good level of understanding of legal representation”—that is, they could understand their legal representative’s role, and name or describe their lawyer.[121] Consistent with interviews conducted for this report, the Registry observed that community leaders had played “an important role,” having discussed “with the community the qualities and skills desired in their lawyers, and then introducing them to the [lawyers].”[122]

Ultimately, the November 2015 decision of the Pretrial Chamber judge respected that some victims had made a choice under rule 90(1), and accepted the powers of attorney for the team of external counsel on the basis that victims are “generally free to choose a legal representative” unless for “reasons of practicality” it becomes necessary to “disturb this freedom, as regulated in paragraphs 2 and 3 of the same rule.”[123] The Chamber’s judge could not identify any practical reasons that would justify disturbing the choice that some victims had made and so did not override their decision to choose the team of external counsel as their legal representatives.[124]

However, the judge rejected the team of external counsel’s eligibility to be appointed the CLR, because they had “not been selected pursuant to a transparent and competitive procedure organized by the Registry”.[125] Instead, the judge appointed the OPCV counsel using Regulation 80, with the expectation that one or more assistants based in Uganda would be added to the team (as she had done in Côte d’Ivoire in the Gbagbo and Blé Goudé case).[126] The benefit of this arrangement, in the judge’s view, was to combine the OPCV’s “knowledge and experience in the procedure before the Court … and the knowledge of the local circumstances where the participating victims reside, providing for the best possible legal representation of the participating victims, which is in the interests of justice.”[127]

The Pretrial Chamber’s decision also had important consequences for the team of external counsel’s access to legal aid. The text of rule 90(5) led the Pretrial Chamber judge to conclude that eligibility for legal aid was limited to the lawyer appointed by the court as the CLR. As the team of external counsel had not been chosen by the court to be the CLR, the victims represented by them were not entitled to legal aid.[128]

This approach was confirmed by a judge of the Ongwen Trial Chamber in two subsequent decisions, but the Registry ultimately granted the external counsel legal aid in late November 2016 under a separate provision, Regulation of Court 85(1).[129] This has deepened ambiguity as to when counsel appointed by victims are eligible to access legal aid.

Limits of the Systematic Approach

The potentially negative consequences of this decision for the court’s legitimacy are striking. The decision presented the victims who had chosen the external counsel with a choice—to obtain financial support from the court, they either had to surrender the counsel they had chosen and instead be represented by OPCV counsel, about whom, justifiably or otherwise, the community leadership had misgivings; or they had to remain with the lawyers they had chosen, and incur a financial obligation that they could not possibly meet.

It is true that the decision did not compel the victims to switch counsel, in some respects, going farther than rote recourse to the “systematic approach” may have done to respect victims’ choices. The withholding of financial support from the external counsel would still have created a strong incentive for these impoverished victims to change their lawyers.

As noted above, ultimately, victims have not been forced to switch to the OPCV counsel, given the Registry decision to provide legal aid to the legal representatives of victims. A member of the CORE Team told us that, if the victims with the team of external counsel had not received support, or had been forced to be represented by the OPCV:

[We] don’t know how this would go. People would think about the court in a way that would make us lose the court. [People would say] ‘We need our lawyer, but we were denied.’ But the perpetrator gets a lawyer. So it would not be balanced.[130]

Another said:

If the court rejected our lawyer on good grounds, after explaining it, to me, I believe in formal justice.… We could accept [OPCV counsel]. On the other hand, the court says the victims have a right to choose. I believe as an international body, they cannot abuse the rights of victims.[131]

That the Pretrial Chamber judge did not address this consideration in its reasoning would appear to be a consequence of it not having before it a crucial piece of context: victims’ views on the desirability of specific candidates for CLR, including an OPCV counsel.

It is impossible to guarantee access to such information. But while the systematic approach was not formally used by the Ongwen Chamber—despite its reference to the lack of a “transparent and competitive procedure” as one reason for declining to appoint external counsel as CLR—its influence and limits when it comes to increasing the odds that the court will have such information is apparent when compared with Ntaganda.

In Ntaganda, where Regulation 80 was als0 used to appoint OPCV counsel, the Pretrial Chamber’s judge had “due regard” to the general preferences of victim applicants as expressed by the Registry in its reporting.[132] Similarly, in Ongwen, the judge of the Pretrial Chamber did take the Registry’s reporting into account,[133] as the Registry had provided information in its reports on the victim application process about victims’ preferences, based on questions posed to applicants. It also considered the fact that the OPCV was already representing some individuals in the situation and in the Kony case who might ultimately have been accepted as participants in the Ongwen case.

That reporting or decision making, however, was not addressed to an actual situation in which the Lukodi victims were presented with a choice between OPCV counsel and alternative counsel to be the CLR. If victims had been presented with that choice, and had said nothing, the Chamber’s decision would have been on stronger ground.

The systematic approach has been criticized as not properly capturing the wishes of victims in the Ruto, Gbagbo, and Ntaganda cases as well.[134] This reinforces even more that the Chamber and the Registry need a new approach—one rooted in a shared vision for creating space for victims to exercise their own choices, and that recognizes a joint responsibility to accurately reflect the views of victims in the court’s decision making about how to support those choices, and when, as a last resort, it needs to step in to organize legal representation itself.

Budgetary Considerations

Before it was resolved, some victims in northern Uganda noted the disparity in funding for the two teams of lawyers.

One victim in Lukodi told Human Rights Watch that the OPCV team of lawyers could afford to hand out sodas to their clients, but that her representatives, the team of external counsel, could not and had told the Lukodi community that they would have to bear the costs.[135] Another victim told Human Rights Watch that the two teams of lawyers created suspicion that some victims were getting money while others were not.[136]

Two CORE Team members told Human Rights Watch that they had heard the court was not going to pay, and so they were not “surprised.” However, they were still concerned:

We had nothing to support our lawyer. Joseph said that he wanted to stand for people. Court may not pay for travel, but he wanted to stand for victims. We were supposed to pay. We are poor, and we can’t support him. Fortunately, the court reconsidered.[137]

In Ongwen, consistent with the increasing focus on the use of regulation 80 in the organization of CLR as an efficiency measure, the Pretrial Chamber’s judge found that appointing the team of external counsel as common legal representatives “would bring a disproportionate and unjustified burden to the Court’s legal aid budget.”[138] In contrast, the

Chamber’s judge noted that, under Regulation 113(2), the OPCV could be asked to act in order to reduce the costs of representing victims.[139]

The judge of the Trial Chamber reiterated concerns about efficiency. The Trial Chamber’s judge upheld the Pretrial Chamber’s approach to rule 90 because, in addition to his reading of rule 90(5)’s plain language as noted above, policy considerations required rule 90 to strike a balance between victims’ choice and ensuring “the effectiveness of the proceedings and cost containment” in a manner consistent with victim participation.[140]

The Chamber’s judge considered that reading of rule 90 to allow legal aid to be granted to external counsel would “prejudice this balance” and make the court “obligated” to provide financial assistance to any legal representative appointed by any victims’ group.”[141]

It is important to recognize that the ICC faces budgetary constraints which mean it cannot extend legal aid to victims without restrictions. But the court cannot lose sight of victims’ participatory rights. On the Chambers’ approach to rule 90(5), victims are potentially making decisions about counsel with the underlying prospect of being financially responsible for their choices, which will preclude most victims from having a choice at all.

The ICC risks losing a key pillar of its legitimacy if victims’ perspectives are set aside for budgetary reasons, or are materially reduced in significance. Indeed, interested civil society organizations have criticized this approach to legal aid for several reasons, including that cost-effectiveness alone should not guide court decision making about victims’ legal representation.[142]

A further problem is transparency: more is needed to determine whether the OPCV represents a cost saving over external counsel. There was no detailed accounting in the decision of the Pretrial Chamber judge of the relative costs, and previous court reporting on this issue noted further study was needed.[143] If the court wishes to take a policy decision to save money by granting legal aid to only one team of victims’ counsel per case, it would be more transparent to state this from the outset.

IV. Enabling Victims’ Choices

On September 18, 2015, the OTP expanded the scope of the charges to include victims of Ongwen’s alleged attacks in Pajule, Odek, and Abok, in addition to Lukodi, as well as the victims in the other “thematic categories:” victims of sexual and gender-based violence, child soldiers, and victims of persecution. This marked the beginning of the next phases of court efforts to facilitate victim participation.

Court Activities in Abok, Odek, and Pajule

The expansion in scope created substantial challenges for the Registry. The Pretrial Chamber had set a deadline of December 7, 2015 for the Registry to send completed victim applications. Before the confirmation of charges, the Registry had less than three months to roll out activities in the other communities.

In what constituted a “second phase” of victim applications, between September and December of 2015, ICC Outreach and VPRS staff extended their activities to Pajule, Odek, and Abok. Information sessions with 700 individuals were held in these three communities, and 400 were assisted to complete applications.

Unlike Lukodi, these other communities did not have a dedicated victims’ leadership structure with which the ICC could work. The CORE Team idea was only properly introduced into Odek by a civil society organization in 2015,[144] and the victims’ organizing groups in Pajule and Abok are almost entirely creations of the ICC, which helped these communities organize themselves after the expansion of the charges in September 2015.[145]

One representative of a civil society organization told Human Rights Watch that there were essentially no “victims’ groups” in these places in the sense that they were not as coordinated or organized as Lukodi.[146] The Registry’s difficulties in this regard were enhanced by the sheer geographic spread and remoteness of these communities.

Given the situation, it is unsurprising that roughly 80 percent of the 2,086 victims who applied from March-December 2015, during the first phase described in Section II and the second phase addressed in this section, were from Lukodi.[147]

A further “third phase” took place between July-September 2016 in all four communities after the confirmation of charges hearing. During this phase, ICC staff conducted five multi-day field missions in the four communities to enable more people to apply to participate in Ongwen’s trial.[148] Many more people also wished to apply to participate, but the Registry did not have time to process these applications.[149]

The bulk of victim applications processed from Adok, Obek, and Pajule thus took place between July-September 2016, after the two teams of legal representatives had been established in the case.[150] This arrangement provided necessary context for victims. The Registry incorporated this fact into their messaging, in coordination with the two teams of lawyers, although they also indicated that it was possible to choose other lawyers.[151]

Choosing Lawyers in Abok

Human Rights Watch conducted 15 interviews in Abok. It was difficult to ascertain from these interviews when victims had applied to participate and when they had made decisions regarding legal representation. Based on their description of events and recollection of dates, at least five interviewees most likely began to engage with the ICC only after the confirmation of charges, even if they could not remember exactly when they had applied or obtained a lawyer.[152]

It appears that one or more community meetings were held to make decisions about the selection of a lawyer.

Human Rights Watch was told about one large meeting of about 1,200 people at the sub-county office in 2015,[153] as well as smaller meetings at a local school and in other places. At these meetings, attendees were told about which lawyers were available and indicated who they wanted through a show of hands or a chorus of voices.[154] Attendance lists appear to have been used at these events in a similar manner to Lukodi.[155]

Overwhelmingly, the people Human Rights Watch spoke to in Abok preferred the external counsel “because he was close to us,” which appeared to refer to the fact that he was from a neighboring district and spoke the local language.[156] While these meetings were run by the community, in interviews, several held the impression that the ICC had organized the meetings and provided the list of lawyers.[157]
 

One interviewee described the larger meeting as a process of consensus where alternatives were given:

I listened to the qualities of the other lawyers. After presenting their names with their places of origin … the community was asked, ‘Who did you want to be your lawyer?’ We responded: ‘We want [Joseph] Akwenyu [Manoba]!’ We shouted it.[158]

As in Lukodi, the leadership appear to have been actively involved in the process of selecting counsel. One interviewee told us that a local leader had “recommended” the external counsel “because he comes from around here.”[159] Another interviewee, who had not been at a meeting, described the process in the following terms:

[The ICC] brought a lot of names…. [The decision] was based on consensus. They called a group of people. Joseph’s name was nominated, people saw there was a lot of support, so [they] went with it.[160]

Like this individual, one other interviewee also did not attend a meeting, but accepted the result: “I was convinced that what the community had chosen was the best thing. So I approved [the lawyer].”[161] Two others told us that they too had not been involved in making the decision, and did not know how the lawyer had been chosen, but were told the result.[162]

A few interviewees seemed to have made their decision based on impressions made by the ICC staff. One interviewee seemed to place importance on the external counsel’s proximity to victims because ICC staff had mentioned that quality.[163] One other assumed that the external counsel was the best choice because ICC staff had mentioned he was already involved in the trial.[164] Another interviewee said she understood the ICC staff to be recommending they choose a lawyer who spoke the local language.[165]

The overall picture that emerges is similar to Lukodi: a process of consensus-based community decision making, overseen by influential local leadership, which was respected by those who had not taken part in the decision. The difference lies in the fact that some of the victims Human Rights Watch interviewed were influenced by the ICC’s messaging and several had not attended meetings where decisions were made by consensus.

These differences speak to the importance of giving victims the time and space to become involved in the processes for choosing their lawyers; as one community leader indicated to Human Rights Watch, their impression of the ICC was that it was in a rush. Although the victims Human Right Watch interviewed were not sure when they had applied to participate, the fact that some were not able to participate in the process of consensus could be consistent with the fact that many individuals from Abok only applied to participate in the trial, therefore becoming eligible to choose a lawyer, during the third phase of victim applications in 2016.

Choosing Lawyers in Odek

Consensus does not appear to have been used in Odek, although Human Rights Watch was unable to speak with individual victims to verify the leadership group’s story. In Human Rights Watch’s discussion with members of the Odek CORE Team—set up in 2015, by JRP—they indicated that lawyers who were “men and women, Acholi and mzungu [foreigners]” had come with ICC staff to meetings, and then victims were individually interviewed and asked whether they wanted those lawyers, or another lawyer.[166]

There had been a choice between three lawyers: a man, a woman, and a “general lawyer.”[167] The choice appears to have been entirely individual; Human Rights Watch was told that victims made their choice “one-by-one,” while filling out application forms to participate, that there was no discussion as to who victims should choose, and some victims chose Manoba and others chose Massidda.[168]

Choosing Lawyers in Pajule

Individuals applying to participate from Pajule appeared not to have had a meaningful opportunity to decide who would represent them. Human Rights Watch was told by a local community leader that ICC staff had said at a December 2016 training that “there was a lawyer representing us … no one talked about choosing a lawyer.”[169] The organizing team in Pajule (“CORE Team” was not in usage) was used solely to organize meetings and appears to have had no role in decision making.[170] One civil society organization representative said that there was no presence of civil society organizations in Pajule, which made organizing victims “hard.”[171]

Before pretrial proceedings in the Ongwen case, the OPCV had already been responsible for representing some victims in Pajule.[172] Forty applications had been received from individuals in Pajule during the situation phase, and were included in the applications forwarded to the Chamber. They were not consulted about their preferences for legal representation.[173]

Human Rights Watch spoke to two individuals who identified themselves as victim participants. They had a very vague sense of their legal representation. One interviewee who had heard that the ICC had returned to the community when he was away in hospital told Human Rights Watch:

I don’t remember anything about a lawyer. [The ICC] said they would come back with details later. I tried to speak to people on the day but they didn’t give me any information. There was no information about legal representation. The mobilizers said nothing. When the hearing came on I listened to the radio. I listened but I wanted to have a better understanding. I couldn’t call the radio and get more information.[174]

The other interviewee recalled a question on the form about a lawyer, but said: “I have not heard anything about any lawyer standing for us.”[175]

V. Recommendations

In the Ongwen case, the ICC faced a unique situation. Unlike most recent court practice, the Pretrial Chamber’s judge did not trigger a rule 90 process to organize CLR under the “systematic approach.” This opened a space for the community in Lukodi to make decisions about legal representation, based on the information available to them and their perceptions as to what was necessary to protect their interests, consistent with the principle of choice that animates rule 90.

The court’s response, however, shows real gaps in the system’s ability to properly recognize and respond to the community’s decision making and to ensure other communities concerned by the Ongwen case had similar opportunities.

At pretrial, for victim participants in Lukodi, the decision of the Pretrial Chamber’s judge confining legal aid to the CLR of its choice—a choice that was not informed by community concerns about the counsel’s role—posed challenges. While the Registry ultimately extended legal aid to external counsel and the decisions in the case taken together protected victim participants’ right to choose counsel under rule 90(1), the disparity between the two sets of counsel created tension within the community.

At pretrial in Abok, Odek, and Pajule, there were exceptionally short timelines—less than three months—to organize and complete the victim participation application process.

While the absence of a rule 90 process to organize CLR makes Ongwen unusual from a procedural perspective, in substance, it is the continuation of a trend before the ICC that raises concerns for Human Rights Watch.

As discussed in Section I, since the cases arising out of the Kenya situation, Pretrial Chambers in their application of the “systematic approach” to rule 90 have treated the victims’ views on their legal representation as a relevant, but not a determinative nor even a predominant consideration. Under the systematic approach, the Chamber has been increasingly willing to appoint the OPCV as the CLR under Regulation 80 in the interests of cost and efficiency, after giving cursory attention to the victims’ preferences reported by the Registry.

In short, there has been a tendency to assume under the systematic approach that it is sufficient to merely have regard to victims’ general preferences about their legal representatives when making decisions about CLR, but without any clarity as to the weight to be given to those views and what factors should lead to those preferences being overruled.[176]

The consequence of this overreliance on the systematic approach is the appearance of rote decision making and inflexibility, which are apparent from the ICC’s approach in Ongwen. Such inflexibility threatens the court’s legitimacy with victims because it creates the potential for the court to appear insensitive to the context and detail that drives their decision making in a particular case. To address this issue, Human Rights Watch considers that rule 90 should be interpreted and applied by court actors in a manner that demonstrates that victims’ choices matter. The following recommendations, which build on those put forward by other organizations including REDRESS and Avocats Sans Frontières, address this point.[177]

Rule 90 Sequentially

Rule 90 has a significant role to play in defending the legitimacy of the court. It provides a scheme for organizing CLR that is reasonably clear on its face, and one which, along with its corresponding regulations, places significant emphasis on protecting victims’ choices and interests in the organization of CLR. Chambers should ensure that rule 90 is the process through which common legal representation is organized, and should include this as best practice in the Chambers Practice Manual.[178]

At the same time, the systematic approach to rule 90 has weakened the rule’s information-gathering and legitimating force.

While improving the efficiency of proceedings is a legitimate concern and there are challenges in ascertaining victims’ preferences about representation, the Registry has overcorrected and now seems to treat victims’ preferences as only one of many, perhaps weightier, considerations.

Against these two extremes, it is possible to bring about a more context-sensitive and evidence-based position. Human Rights Watch considers that rule 90 should be used and should be read sequentially, to best protect the ICC’s legitimacy.

The language and structure of rule 90 prioritizes in 90(1) the right of victims to choose counsel and only where the court decides to organize CLR, 90(2); it then prioritizes enabling victims to exercise choices as a group over who is to be the CLR. Rule 90(3) provides that intervention by the court into victims’ choices of CLR is conditional upon its prior determination that victims are “unable to choose.”

If the Chamber were to apply rule 90 sequentially, it would have to articulate in its decisions why it considers common legal representation to be necessary and, in turn, why victims are “unable to choose.” The test of “unable” should focus the Chamber’s mind on a question of fact: the victims’ capacity to reach agreement about the lawyer or lawyers they wish to be the CLR.

Provide More Guidance on the Steps of Rule 90

If Rule 90(2) and (3), applied sequentially, are to be reliable as a means of structuring the court’s decision making about CLR, the court needs to provide more guidance and clarity about how the requirements of each step in the process are to be satisfied.

The court’s judges should consider doing so in the Chambers Practice Manual. The manual should identify the various criteria that guide the Chamber’s decision to initiate CLR in a given case and how it will formally communicate to the Registry that it has done so; the criteria that are to be taken into account for determining whether the victims are “unable to choose” for the purposes of shifting from rule 90(2) to 90(3); and the Registry’s responsibility to gather information that speaks to these criteria, to satisfy the relevant evidential requirements and consistent with its responsibility under Rule 16(1)(b).

Doing so would provide clarity as to when a CLR process has been formally initiated, and should resolve some of the coordination problems at play in Ongwen.

Without this formal communication, it becomes harder for the Registry to determine when it has been legally authorized to start organizing CLR. This problem arose in Ongwen, where there appeared to be confusion between the Pretrial Chamber and the Registry as to whether a transparent and competitive procedure was required in Lukodi. Guidance in the Chambers Practice Manual should stipulate that a ruling on CLR cannot be made until the Chamber has first issued an order under rule 90(2) and the Registry has had a fair opportunity to facilitate the victims’ choice of a CLR and, where the victims are unable to make such a choice, to then consult them about their preferences on CLR. This will help ensure that the Chamber and the Registry, as well as victim participants and counsel, are aware of the rules of the road. 

This guidance would also help to strengthen communication between a Chamber and the Registry.

In Ongwen, the Registry had repeatedly signaled in broad terms the situation on the ground, particularly regarding the Lukodi victims’ concerns about their legal representation. Indeed, in the case of Lukodi, the Registry indicated at several points that it was providing information about victims’ preferences in anticipation of a decision on CLR.

However, because no CLR process had ever been formally initiated, the Registry was not required to report on the specific issue of CLR. This information was as such communicated sporadically and was scattered, at times, throughout paragraphs and footnotes in the various reports on victim applications.

This is not surprising: the victim application reports submitted by the Registry were not designed for such a purpose, and a Chamber reviewing these reports in tandem with a large amount of other information may not necessarily have appreciated the deeper context of the information that was being communicated. Being clear that a process has started and that information provided by the Registry is aimed at facilitating that process should avoid this problem.

Ensure Reliable Information for Proper Application of Rule 90

In addition to better coordination and strengthened communication, the quality and kind of information available to a Chamber also matter to its ability to promote, enable, and support victim agency in the organization of legal representation. Detailed information is essential to balance victims’ interests against other priorities, such as cost and efficiency.

If court judges amend the Chambers Practice Manual to include criteria that justify moving from one step of rule 90 to the next, those criteria should identify the kinds of information that should be collected at each step to satisfy the applicable criteria. The Registry should develop a policy paper to guide its collection of information and ensure coordination between headquarters and field staff. These should correspond to criteria set out in the Chamber Practice Manual for moving between the sub-rules of rule 90.

For example, where victims are well-supported and capable of selecting their own legal representative, consistent with rule 90(1), this is important information that the Chamber should take into account when considering the need to activate CLR.

In Pajule, Abok, and Odek, there could have been some attempts—for example, longer timelines—to improve the communities’ understanding and organization, if there had been clear reporting requirements between the Chamber and the Registry, and a common understanding on how information about the victims’ preparedness should inform the Chamber’s decision making about common legal representation.

It is important to note that, to date, the kind of information the court apparently expects to see before it under the systematic approach has not necessarily promoted the court’s broader legitimacy. This is because the systematic approach has in practice prioritized the collection of generic information about the victims’ preferences to facilitate the selection of a lawyer with those attributes at an early stage. This approach to information does not necessarily get at the detail of a situation that, if ignored, can be harmful to the court’s legitimacy.

In the Ongwen case, the Registry’s reporting on the victims’ general preferences, and their desire to be represented, was entirely consistent with the way information was presented in “systematic approach cases” such as Gbagbo and Ntaganda.  Those reports did not address the leadership’s specific views and concerns about the OPCV, or go into detail about the efforts they had undertaken to recruit a counsel, and so created the perception that the Pretrial Chamber decision ignored those facts when it appointed OPCV counsel as CLR and denied the external counsel legal aid.

There is an opportunity for the field offices, as organized post-ReVision with a high-level head of office, to improve the information available to the Registry, and, in turn, the Chamber. This is because the structure creates a single informational channel across the Registry’s activities, which could more closely coordinate about, for example, the way the communities are organized and their capacity to choose lawyers.

Set Realistic and Adaptable Timeframes

The relative disorganization surrounding legal representation in Pajule, Odek, and Abok is partly about time. The more victims understand the process, the more they are likely to feel ownership over their decisions. Sometimes, when communities are not particularly familiar with the court and what it means to participate in it, it can take more time to organize them and promote a sense of community empowerment.

That imperative was not reflected in deadline setting in the Ongwen case. The leadership and community organization structures in Pajule, Odek, and Abok were quite new to the idea of choosing a lawyer. However, they had less time to engage with these ideas and disseminate them throughout the community than the Lukodi CORE team, which was more clearly established and benefited from intense engagement with court actors before the expansion of charges.

In part, the difficulties that arose in the Ongwen case were a product of the prosecution’s charging strategy. By rapidly expanding the scope of the charges shortly before the confirmation of the charges, the OTP pushed the Registry to rapidly expand its work to these communities.

Human Rights Watch recognizes that there are competing priorities when it comes to time, including the rights of the accused and the overall efficiency of the trial. Speedy trials are also in the interests of victims who are invested in their outcome. However, the informed participation of victims through legal representatives whom they trust and whose role they understand also supports the court’s legitimacy.

Improving the ICC’s management of timelines also involves improving communication between the Registry and the Chamber, and clarifying the information that should inform certain decisions. As a matter of guidance and clarity, the Chambers Practice Manual should provide that the Chamber generally consider adjusting timelines in response to evidence that victims have become involved in the case who require additional attention and time before they are able to choose a lawyer. This need not unduly prolong proceedings; rather, a coherent and coordinated approach on the issue of victims’ legal representation—backed by sufficient court resources to implement activities on the ground—may promote better outcomes.

Improve Resourcing

Resourcing considerations underpin the ICC’s approach to victims’ legal representation. The potential impact on the court’s legitimacy should be factored into these.

Given that the choice of lawyers by victims, properly facilitated, can have a positive impact on the ICC’s legitimacy, ICC states parties should ensure adequate resources to the ICC for victim outreach and participation activities, as well as to the court’s legal aid budget.

In Ongwen, resourcing considerations were also at play in the Chambers’ approach to rule 90(5). Rule 90(5), in particular, presents a problem of legal interpretation that could have potentially damaging consequences for the court’s legitimacy. Human Rights Watch acknowledges reasonable disagreement on the significance of rule 90(5). If the Ongwen Chambers’ view of rule 90(5) prevails, however, it would disconnect the rules from the realities of victim choice and deprive rule 90(1) of any meaningful operation.

Most victims who choose lawyers to represent them in the ICC system cannot pay those lawyers. For it to be operable, rule 90(1) depends on one of two assumptions: that lawyers will either act pro bono, or they will be paid by the court. However, there is no guarantee in any given case that lawyers will offer, or be in a position to offer, their services pro bono to victims, or, due to the inherent limitations on pro bono representation, that they will be able to meet the specific demands of victims in legal ability and field presence. Weakening rule 90(1) in this way could potentially damage the court’s legitimacy; it has the potential to reproduce a situation in which CLR is inevitable because there is no pro bono counsel to be chosen, or where counsel does not engage with victims due to costs.

Acknowledgments

This report was researched and written by Michael Adams, a Columbia Law School Public Interest and Government postgraduate fellow in the International Justice Program of Human Rights Watch. Elizabeth Evenson, associate director of the International Justice Program, edited the report. Richard Dicker, director of the International Justice Program, and Maria Burnett, associate director of the Africa Division, reviewed the report. Aisling Reidy, senior legal advisor, provided legal review and Danielle Haas, senior editor in the Program Office, provided program review.

Sasha Lansky, Karolina Kozik, and Anjelica Jarrett, associates in the International Justice Program, provided production assistance. Aji Drammeh, Emily Painter, Julia Sherman, Ally Tang, and Muzhgan Wahaj, interns in the International Justice Program, provided research assistance. Olivia Hunter, Fitzroy Hepkins, and Jose Martinez prepared this report for publication.

Human Rights Watch wishes to thank the people who contributed their time and expertise to the report. In particular, Human Rights Watch appreciates the generosity of the people in communities affected by the attacks in Abok, Lukodi, Odek, and Pajule and their willingness to be interviewed. The leadership of these communities generously gave their time to introduce researchers to people in their communities. ICC staff members were also generous with their time, as were the staff of the civil society organizations who were interviewed for this report.

[1] See Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda (New York: Human Rights Watch, September 2005); Prosecutor v. Ongwen, International Criminal Court (ICC), Case No. ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, March 23, 2016, https://www.legal-tools.org/doc/74fc6e/ (accessed March 8, 2017), paras. 71-104.

[2] Office of the Prosecutor (OTP), ICC, “Policy Paper on Victims’ Participation,” April 2010, http://www.legal-tools.org/doc/3c204f/ (accessed July 20, 2017), p. 5.

[3] Antonio Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections,” European Journal of International Law, vol. 10 (1999) p. 168.

[4] See, for example, Prosecutor v. Katanga, ICC, Case No. ICC-01/04-01/07, Summary of Trial Chamber II’s Judgment of 7 March 2014, pursuant to article 74 of the Statute, March 7, 2014, https://www.icc-cpi.int/itemsDocuments/986/14_0259_ENG_summary_judgment.pdf (accessed July 20, 2017), para. 9; see also, Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Separate Opinion of Judge Georghios M. Pikis, June 13, 2007, http://www.legal-tools.org/doc/b3dad9/ (accessed July 20, 2017), para. 15, p. 19; Hon. Christine Van den Wyngaert, “Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge,” Case Western Reserve Journal of International Law, vol. 44 (2011), p. 475.

[5] William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2016), p. 1069; see also, for example, Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. 01/04-01/07, Decision on the Modalities of Victim Participation at Trial, January 22, 2010, https://www.legal-tools.org/doc/8b6e01/ (accessed July 20, 2017), paras. 65-107.

[6] Schabas, The International Criminal Court, p. 1069.

[7] Independent Panel of Experts, “Report on Victim Participation at the ICC,” July 2013, http://www.redress.org/downloads/publications/130711%20panel%20report%20FINALfor%20dissemination.pdf (accessed August 1, 2017), para. 12.

[8] Human Rights Watch group interview with CORE Team members, Odek Sub-County, Omoro District, Uganda, January 22, 2017.

[9] Human Rights Watch interview with P.L., Abok Sub-County, Oyam District, Uganda, January 21, 2017.

[10] Assembly of States Parties (ASP), “Court’s Revised strategy in relation to victims,” ICC-ASP/11/38, November 5, 2012, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-38-ENG.pdf (accessed May 9, 2017), p. 5.

[11]Prosecutor v. Ruto and Sang, ICC Case No. 01/09-01/11, Decision on victims’ representation and participation, October 3, 2012, https://www.legal-tools.org/doc/e037cc/ (accessed July 20, 2017), para. 59. See also Prosecutor v. Lubanga, ICC, Case No. 01/04-01/06, Decision on victims’ participation, January 18, 2008, https://www.legal-tools.org/doc/4e503b/ (accessed July 20, 2017), para. 116, 123-125;Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. 01/04-01/07, Order on the organization of common legal representation of victims, July 22, 2009, https://www.legal-tools.org/doc/e6b210/ (accessed July 20, 2017), para. 10;Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. 01/04-01/07, Decision on the Modalities of Victim Participation at Trial, https://www.legal-tools.org/doc/8b6e01/, para. 57; Prosecutor v. Bemba, ICC, Case No. 01/05-01/08, Decision on common legal representation of victims for the purpose of trial, October 11, 2010, https://www.legal-tools.org/doc/5d0fa1/ (accessed July 20, 2017), para. 9.

[12] Human Rights Watch interview with H.P., Bungatira Sub-County, Gulu District, Lukodi, Uganda, January 17, 2017.

[13] Human Rights Watch interview with Q.I., Abok Sub-County, January 21, 2017.

[14] T. Markus Funk, Victims' Rights and Advocacy at the International Criminal Court (New York: Oxford University Press, 2010), p. 116; see also, for example, Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. 01/04-01/07, Order on the organization of common legal representation of victims, https://www.legal-tools.org/doc/e6b210/, para. 11; Prosecutor v Gbagbo, ICC, Case No. 02/11-01/11, Decision on Victims’ Participation and Victims’ Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, June 4, 2012, https://www.legal-tools.org/doc/0fdd1e/ (accessed July 20, 2017), para. 35.

[15] Funk, Victims' Rights and Advocacy at the International Criminal Court, p. 115. See, for example, Prosecutor v. Ruto, Decision on the “Motion from Victims a/0041/10, a/0045/10, a/0051/10 and a/0056/10 requesting the Pre-Trial Chamber to Reconsider the Appointment of Common Legal Representative Sureta Chana for All Victims,” September 9, 2011, https://www.legal-tools.org/doc/3c3412/ (accessed July 20, 2017), paras. 14-15.

[16] Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. ICC-01/04-01/07, Order on the organisation of common legal representation of victims, https://www.legal-tools.org/doc/e6b210/, para. 11.

[17] Funk, Victims' Rights and Advocacy at the International Criminal Court, p. 115.

[18] Prosecutor v. Katanga and Ngudjolo Chui, ICC, Case No. ICC-01/04-01/07, Order on the organisation of common legal representation of victims, https://www.legal-tools.org/doc/e6b210/, para. 11. Rule of Procedure and Evidence 16(1)(b) provides that the Registrar shall be responsible for “assisting [victims] in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings in accordance with rules 89 to 91.”

[19] Avocats Sans Frontières (ASF) notes two exceptions: in the Al Bashir case, where lawyers are acting pro bono, and the Comoros situation. See Catherine Denis, ASF, “Victims’ Choice vs. Legal Aid? Time for the ICC to Re-Think Victims’ Participation as a Whole,” May 2016, http://www.asf.be/wp-content/uploads/2016/05/ASF_VictimsParticipationAsAWhole_20160526_EN.pdf (accessed July 20, 2017), footnote 15.

[20] REDRESS, “Representing Victims Before the ICC: Recommendations on the Legal Representation System,” April 2015, http://www.redress.org/downloads/publications/1504reprentingvictims.pdf (accessed July 20, 2017), p. 8; Maria Radziejowska, “Meaningful Victim Participation– But Only if You Can Pay for It?” post to “Beyond The Hague” (blog), June 15, 2016, https://beyondthehague.com/2016/06/15/meaningful-victim-participation-but-only-if-you-can-pay-for-it/ (accessed July 20, 2017).

[21] See, for example, Prosecutor v. Ruto et al., ICC, Case No. 01/09-01/11, Legal framework and experience to date on common legal representation, annex 1 to Proposal for the Common Legal Representation of Victims, August 1, 2011, http://www.legal-tools.org/doc/4839cd/ (accessed July 20, 2017), para. 4.

[22] Prosecutor v. Ruto et al., ICC, Case No. 01/09-01/11, Proposal for the common legal representation of victims, August 1, 2011, https://www.legal-tools.org/doc/1219f2/ (accessed July 20, 2017), para. 3; see also Prosecutor v. Muthaura et al., ICC, Case No. 01/09-02/11, Proposal for the common legal representation of victims, August 5, 2011, https://www.legal-tools.org/doc/ae71a6/ (accessed July 20, 2017), para. 3.

[23] Prosecutor v. Ruto et al., ICC, Case No. 01/09-01/11, Legal framework and experience to date on common legal representation, http://www.legal-tools.org/doc/4839cd/, para. 8.

[24] The criteria are whether counsel had: established a relationship of trust with victims; demonstrated commitment to working with vulnerable persons; familiarity and experience with the situation; experience or expertise in international criminal law litigation; the availability to properly engage with clients and participate in the proceedings; an understanding of and access to information technology. See Prosecutor v. Ruto et al., ICC, Case No. 01/09-01/11, General criteria for the selection of common legal representatives under rule 90(3) of the Rules of Procedure and Evidence, annex 3 to Proposal for the common legal representation of victims, August 1, 2011, https://www.legal-tools.org/doc/d5c52b/ (accessed July 20, 2017), paras. 2, 6, 7, 8, 10, 12.

[25] Prosecutor v. Gbagbo, ICC, Case No. 02/11-01/11, Decision on Victims' Participation and Victims' Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, https://www.legal-tools.org/doc/0fdd1e/, para. 4; Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Decision Concerning the Organization of Common Legal Representation of Victims, December 2, 2013, https://www.legal-tools.org/doc/1d23b9/ (accessed July 20, 2017), para. 2.

[26] Prosecutor v. Gbagbo, ICC, Case No. 02/11-01/11, Decision on Victims' Participation and Victims' Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, https://www.legal-tools.org/doc/0fdd1e/, para. 4; Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Decision Concerning the Organization of Common Legal Representation of Victims, https://www.legal-tools.org/doc/1d23b9/, para. 24; Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, November 27, 2015, https://www.legal-tools.org/doc/95f763/ (accessed July 20, 2017).

[27] Prosecutor v. Gaddafi and Al-Senussi, ICC, Case No. 01/11-01/11, Decision on the Conduct of the Proceedings Following the “Application on Behalf of the Government of Libya Pursuant to Article 19 of the Statute,” May 4, 2012, https://www.legal-tools.org/doc/bfc19d/ (accessed July 20, 2017), para. 13.

[28] See, for example, Prosecutor v. Bemba, ICC, Case No. 01/05-01/08, Decision on common legal representation of victims for the purpose of trial, https://www.legal-tools.org/doc/5d0fa1/, paras. 29-30.

[29] See Prosecutor v. Abu Garda, ICC, Case No. 02/05-02/09, Decision on Applications a/0655/09, a/0656/09, a/0736/09 to a/0747/09, and a/0750/09 to a/0755/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case, March 19, 2010, https://www.legal-tools.org/doc/17b796/ (accessed July 20, 2017), para. 33; Prosecutor v. Banda and Jerbo, ICC, Case No. 02/05-03/09, Decision on Victims’ Participation at the Hearing on the Confirmation of Charges, October 29, 2010, https://www.legal-tools.org/doc/fbf657/ (accessed July 20, 2017), para. 57.

[30] Prosecutor v. Gbagbo, ICC, Case No. 02/11-01/11, Decision on Victims' Participation and Victims' Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, https://www.legal-tools.org/doc/0fdd1e/, paras. 41-44.

[31] Ibid., paras. 42, 45.

[32] Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Decision Concerning the Organisation of Common Legal Representation of Victims, https://www.legal-tools.org/doc/1d23b9/, paras. 24-25.

[33] Ibid., para. 24. After the Gbagbo case was joined with Blé Goudé on March 11, 2015, the Trial Chamber ordered that the OPCV counsel remain the CLR for victims in both cases after the Registry reported that 91 percent of the victims wished to continue with the arrangements. See Prosecutor v. Gbagbo and Blé Goudé, ICC, Case No. 02/11-01/15, Directions on the conduct of the proceedings, September 3, 2015, https://www.legal-tools.org/doc/c28cd2/ (accessed July 20, 2017), paras. 69-70. Similarly, in Ntaganda, the Trial Chamber, by a majority, ordered that OPCV counsel remain CLR after the Registry reported that “a majority of the victims consulted expressed the wish to retain the current LRVs.” Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Second decision on victims' participation in trial proceedings, June 16, 2015, https://www.legal-tools.org/doc/c7eaa0/ (accessed August 18, 2017), paras. 30-31. 

[34] In Bemba, for example, the Trial Chamber observed that “pursuant to rule 90(5) of the Rules, in cases where victims do not have the means to remunerate them, common legal representatives are chosen by the Court, as opposed to by the victims themselves.” See Prosecutor v. Bemba, ICC, Case No. 01/05-01/08, 01/05-01/08, Decision on common legal representation of victims for the purpose of trial, https://www.legal-tools.org/doc/5d0fa1/, para. 16.

[35] William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2017), p. 344. The exceptions are the Al Bashir and Comoros cases.

[36] Maria Radziejowska, “Meaningful Victim Participation–But Only if You Can Pay or It?” post to “Beyond The Hague” (blog), https://beyondthehague.com/2016/06/15/meaningful-victim-participation-but-only-if-you-can-pay-for-it/.

[37] See, for example, Coalition for the ICC (CICC), “Victims to lose out with states’ double-standard on ICC budget,” November 21, 2016, http://www.coalitionfortheicc.org/news/20161121/victims-lose-out-states-doublestandard-icc-budget (accessed July 20, 2017).

[38] See ASP, “Report of the Bureau on legal aid,” ASP/ICC/11/2, October 23, 2012, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-2-ENG.pdf (accessed July 25, 2017), paras. 16-18, 22; see also CICC Legal Representation Team, “Comments and Recommendations to the Eleventh Session of the Assembly of States Parties, November 14-22, 2012,” November 8, 2012, http://iccnow.org/documents/CICC_Legal_Representation_Team_Paper_-_ASP_11.pdf (accessed July 20, 2017), p. 4 (noting with concern “that throughout 2012 [discussion of] the role of the OPCV in victims’ representation has been driven primarily by cost considerations.”).

[39] See, for example, ASP, “Mandates of the Assembly of States Parties for the intersessional period,” annex I to “Strengthening the International Criminal Court and the Assembly of States Parties,” Res. ICC-ASP/14/20, November 26, 2015, https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP14/ICC-ASP-14-Res4-ENG.pdf#page=15 (accessed July 20, 2017) paras. 6-8.

[40] Registry ReVision Project, ICC, “Basic Outline of Proposals to Establish Defence and Victims Offices (Draft),” http://www.uianet.org/sites/default/files/Registry_ReVision_BasicOutline_Defence_Victims_Offices_0.pdf (accessed July 24, 2017), p. 5; Registry, ICC, “Comprehensive Report on the Reorganization of the Registry of the International Criminal Court,” August 2016, https://www.icc-cpi.int/itemsDocuments/ICC-Registry-CR.pdf (accessed July 20, 2017), ix.

[41] International Federation of Human Rights (Fédération internationale des ligues des droits de l’Homme, FIDH), “Comments on the ICC Registrar’s ReVision proposals in relation to victims,” November 18, 2014, https://www.fidh.org/IMG/pdf/fidh_comments_on_revision_final_rev051214-1.pdf (accessed July 20, 2017), p. 4.

[42] See CICC Legal Representation Team, “Comments and Recommendations on the Proposed Victims Office in the context of the Registry ReVision,” April 3, 2015, p. 1, annex to ASF, “ASF Position Paper: Registry ReVision—Basic Outline Proposals to Establish Defence and Victims Offices,” April 22, 2015, http://www.asf.be/wp-content/uploads/2016/06/
ASF_IJ_PositionPaperReVision_20150422.pdf
(accessed July 24, 2017).

[43] CICC Legal Representation Team, “Comments and Recommendations to the Eleventh Session of the Assembly of States Parties, November 14-22, 2012,” http://iccnow.org/documents/CICC_Legal_Representation_Team_Paper_-_ASP_11.pdf, pp. 4-5.

[44] “Questions and Answers on the LRA Commander Dominic Ongwen and the ICC,” Human Rights Watch question-and- answer document, December 5, 2016, https://www.hrw.org/news/2016/12/05/questions-and-answers-lra-commander-dominic-ongwen-and-icc.

[45] ASP, “Strategic Plan for Outreach of the International Criminal Court,” ICC-ASP/5/12, September 29, 2006, https://www.icc-cpi.int/NR/rdonlyres/FB4C75CF-FD15-4B06-B1E3-E22618FB404C/185051/ICCASP512_English1.pdf (accessed July 20, 2017), paras. 105-119.

[46] Outreach Unit, Public Information and Documentation Section, Registry, ICC, “Outreach Report 2010,” 2010, https://www.icc-cpi.int/iccdocs/pids/publications/our2010eng.pdf (accessed July 20, 2017), pp. 9-10.

[47] Lino Owor Ogora, “Thousands of Victims in Uganda Express Willingness to Participate in the Ongwen Case,” International Justice Monitor, September 5, 2016, https://www.ijmonitor.org/2016/09/thousands-of-victims-in-uganda-express-willingness-to-participate-in-the-ongwen-case/. The ICC has now changed its approach to situation victims, and tends not to solicit victims to apply in the situation. See Human Rights Watch, “Making Justice Count: Lessons from the ICC’s Work in Côte d’Ivoire,” August 2015, https://www.hrw.org/sites/default/files/report_pdf/cdi0815_4up.pdf, pp. 67-76.

[48] Outreach Unit, Public Information and Documentation Section, Registry, ICC, “Outreach Report 2010,” https://www.icc-cpi.int/iccdocs/pids/publications/our2010eng.pdf, p. 10.

[49] Registry, ICC, “Public Information and Outreach: Engaging with Communities; Report of activities in the situation related countries, Period: From January 2011 – October 2014,” http://iccforum.com/media/background/outreach/2014-11-17_Public_Information_and_Outreach-Engaging_with_Communities-Advance_Copy.pdf (accessed July 24, 2017), p. 20.

[50] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision Establishing Principles on the Victims’ Application Process, March 4, 2015, https://www.legal-tools.org/doc/5037fb/ (accessed July 20, 2017), p. 18.

[51] Human Rights Watch group interview with CORE Team members, Bungatira Sub-County, Uganda, January 16, 2017; Human Rights Watch interview with civil society organization (CSO) representative, Gulu, January 20, 2017.

[52] Ibid.

[53] Human Rights Watch interview with CSO representative, January 20, 2017.

[54] Human Rights Watch interview with ICC staff, Gulu, January 19, 2017.

[55] Ibid.

[56] Ibid.

[57] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, First Report on Applications to Participate in the Proceedings, September 18, 2015, https://www.legal-tools.org/doc/3343a5/ (accessed July 24, 2017), paras. 4-5.

[58] Ibid., para. 5.

[59] Ibid, para. 21.

[60] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[61] Ibid.

[62] Human Rights Center, UC Berkeley School of Law, “The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court,” 2015, https://www.law.berkeley.edu/wp-content/uploads/2015/04/VP_report_2015_final_full2.pdf (accessed July 20, 2017), pp. 33, 59.

[63] Human Rights Watch telephone interview with CSO representative, Kampala, January 23, 2017.

[64] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[65] Ibid.

[66] Ibid.

[67] Ibid.; see also Human Rights Watch interview with CORE Team member, Bungatira Sub-County, January 17, 2017.

[68] Situation in Uganda, ICC, Case No. 02/04, Decision on legal representation of victims a/0090/06, a/0098/06, a/0101/06 a/0112/06, a/0118/06, a/0119/06 and a/0122/06, February 15, 2008, https://www.legal-tools.org/doc/4b9b51/ (accessed July 20, 2017). The OPCV was appointed the legal representative of “all the applicants granted the status of victim in the context of the Situation” in November 17, 2008. See Situation in Uganda, ICC, Case No. 02/04, Decision on victims' applications for participation a/0066/06, a/0067/06, a/0069/06, a/0070/06, a/0083/06, a/0088/06, a/0091/06, a/0092/06, a/0102/06, a/0114/06, a/0115/06, a/0125/06 and a/0126/06, November 17, 2008, https://www.legal-tools.org/doc/de4bb9/ (accessed July 20, 2017), para. 52. Even before 2008, however, the OPCV provided support and assistance to victims of the situation, consistent with its mandate. See, for example, Prosecutor v. Kony et al., ICC, Case No. 02/04-01/05-134, Decision on Legal Representation, Appointment of Counsel for the Defense, Protective Measures and Time-Limit for Submission of Observations on Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/027/06, February 1, 2007, https://www.legal-tools.org/doc/03e64f/ (accessed July 20, 2017); Situation in Uganda, ICC, Case No. ICC-02/04, Decision on Victims' Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 (Public Redacted Version), August 10, 2007, https://www.legal-tools.org/doc/8f9181/ (accessed July 20, 2017), para. 164.

[69] Situation in Uganda, ICC, Case No. ICC-02/04, Decision on Victim’s Participation in Proceedings Related to the Situation in Uganda, March 9, 2012, https://www.legal-tools.org/doc/26b39a/ (accessed July 20, 2017), pp. 3, 20.

[70] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Request for leave to file a Response to the “Application by the Uganda Victims Foundation to Submit Amicus Curie Observations pursuant to Rule 103 of the Rules of Procedure and Evidence,” March 27, 2015, http://www.legal-tools.org/doc/f6f5ae/ (accessed July 24, 2017), para. 10.

[71] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[72] Human Rights Watch interview with CORE Team member, January 17, 2017.

[73] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Application by the Uganda Victims Foundation to Submit Amicus Curie [sic] Observations pursuant to Rule 103 of the Rules of Procedure and Evidence, March 19, 2015, https://www.legal-tools.org/en/doc/b49a5f/ (accessed July 20, 2017), para. 11.

[74] Ibid. The UVF application was rejected as premature because at the time it was made, there were no victims participating in the case and as such their participatory rights had not been considered at that stage of the proceedings. See Prosecutor v. Ongwen, ICC, Case No. 02/04-01/15, Decision on an application by the Uganda Victims Foundation to submit amicus curiae observations, April 15, 2015, http://www.legal-tools.org/doc/b38fcf/ (accessed July 20, 2017), para. 2.

[75] Human Rights Watch interview with CORE Team member, Bungatira Sub-Country, January 17, 2017; see also Human Rights Watch interview with ICC staff, January 19, 2017; Human Rights Watch group telephone interview with ICC staff, The Hague Staff, March 27, 2017.

[76] Human Rights Watch group interview with S.D. and Z.Y., Bungatira Sub-County, January 17, 2017. The idea that victims learned about the need to choose a lawyer when they filled out the victim application forms is consistent with at least two other interviews Human Rights Watch did with victims in Lukodi. Human Rights Watch separate interviews with T.C. and W.D., Bungatira Sub-County, January 17, 2017. Two other interviewees told us that they had learned about the need for a lawyer before they filled in the application. Human Rights Watch separate interviews with K.Y. and a CORE Team member, Bungatira Sub-County, January 17, 2017.

[77] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[78] Human Rights Watch interview with T.C., January 17, 2017.

[79] Human Rights Watch group telephone interview with ICC staff, March 27, 2017.

[80] Ibid.

[81] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[82] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Registry’s Report on the Implementation of Decision ICC-02/04-01/15-331, November 23, 2015, https://www.legal-tools.org/doc/298d10/ (accessed July 20, 2017), para 10.

[83] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[84] Ibid.

[85] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Application by the Legal Representatives for Leave to Submit Amicus Curie Observations pursuant to Rule 103 of the Rules of Procedure and Evidence, November 3, 2015, https://www.legal-tools.org/doc/0b8344/ (accessed July 20, 2017), paras. 3-4.

[86] Ibid., paras. 3, 6-7.

[87] It is not certain that these interviewees were involved in this “first phase” of victim applications, as opposed to a round of applications collected following the confirmation of charges; none of the individuals interviewed could recall the exact dates when they had completed the application form.

[88] Human Rights Watch separate interviews with T.C., K.Y., a CORE Team member, and H.P., January 17, 2017. 

[89] Human Rights Watch separate interviews with H.H. and Y.R., Bungatira Sub-County, January 17, 2017.

[90] Human Rights Watch separate interviews with T.C., K.Y., a CORE Team member, H.H., and H.P., January 17, 2017.

[91] Human Rights Watch interview with Y.R., January 17, 2017.

[92] Human Rights Watch group interview with S.D. and Z.Y., January 17, 2017.

[93] Ibid.

[94] Human Rights Watch separate interviews with W.D. and B.U., Bungatira Sub-County, January 17, 2017.

[95] Human Rights Watch interview with W.D., January 17, 2017

[96] Human Rights Watch interview with B.U., January 17, 2017.

[97] Human Rights Watch interview with T.C., January 17, 2017.

[98] Human Rights Watch interview with K.Y., January 17, 2017.

[99] Human Rights Watch interview with CORE Team member, January 17, 2017.

[100] Human Rights Watch interview with H.H., January 17, 2017.

[101] Ibid.

[102] Ibid.

[103] Ibid.

[104] Human Rights Watch interview with Y.R., January 17, 2017.

[105] Ibid.

[106] Human Rights Watch telephone interview with CSO representative, January 23, 2017.

[107] Human Rights Watch interview with K.Y., January 17, 2017.

[108] Human Rights Watch separate interviews with T.C. and H.H., January 17, 2017.

[109] Human Rights Watch interview with Y.R., January 17, 2017. 

[110] Ibid.

[111] Human Rights Watch interview with H.P., January 16, 2017.

[112] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, First Report on Applications to Participate in the Proceedings, https://www.legal-tools.org/doc/3343a5/, para. 24.

[113] Ibid., footnote 35.

[114] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Second Report on Applications to Participate in the Proceedings, October 26, 2015, https://www.legal-tools.org/doc/b65d0c/ (accessed July 20, 2017), para. 5, footnote 18.

[115] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Order to the Registrar in Relation to the Legal Representation of Victims Participating in the Proceedings, October 28, 2015, https://www.legal-tools.org/doc/c8a74c/ (accessed July 20, 2017), para. 7.

[116] Ibid.

[117] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Registry’s Report on the Implementation of Decision ICC-02/04-01/15-331, https://www.legal-tools.org/doc/298d10/, para. 9.

[118] Human Rights Watch group telephone interview with ICC staff, March 27, 2017.

[119] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Registry’s Report on the Implementation of Decision ICC-02/04-01/15-331, https://www.legal-tools.org/doc/298d10/, para. 11. The external counsel later removed the reference to “pro bono” because it was considered confusing. See ibid., footnote 22.

[120] Ibid., para. 4. Thirty-eight applicants equaled approximately 10 percent of the applicants who had, at that stage, submitted a power of attorney.

[121] Ibid., paras. 6(i) and (ii).

[122] Ibid., para. 12.

[123] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, https://www.legal-tools.org/doc/95f763/, para. 17.

[124] Ibid.

[125] Ibid., para. 20.

[126] Ibid., para. 24.

[127] Ibid.

[128] Ibid., para. 18.

[129] During the trial phase, the Trial Chamber’s judge found that the Pretrial Chamber’s decision on the grant of legal aid was justified by “the plain language of rule 90(5) of the Rules.” Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on the “Request for a determination concerning legal aid” submitted by the legal representatives of victims, May 26, 2016, http://www.legal-tools.org/doc/cdab49/ (accessed July 20, 2017), para. 8. According to the decision, regulations such as Regulation 83(2) of the Rules of Court or Regulation 113 of the Regulations of the Registry were “subject to the Rules… The applicability of such provision is therefore dependent on a right to access legal aid grounded on the relevant legal basis, namely rule 90(5).” Ibid., para. 9. At the beginning of November 2016, the Registry requested that the Chamber provide further guidance on whether the team of external counsel were eligible for legal aid. The Chamber’s judge observed that “as a matter of law, the plain contextual and teleological interpretation of rule 90(5) makes it clear that victims who individually choose their own legal representatives do not qualify for financial assistance as a matter of right from the Court.” Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on Registry’s Request for Clarification on the Issue of Legal Assistance Paid by the Court for the Legal Representatives of Victims, November 14, 2016, https://www.legal-tools.org/doc/f011b0/ (accessed July 20, 2017), para. 2. The Chamber’s judge did not consider it necessary to issue new guidance to the Registry, which then granted the external counsel legal aid under Regulation 85(1) of the Regulations of Court. Ibid., para 3. Regulation 85(1) provides that “In accordance with the procedure set out in the Regulations of the Registry, the Registrar shall decide within one month of the submission of an application or, within one month of expiry of a time limit set in accordance with the Regulations of the Registry, whether legal assistance should be paid by the Court. The decision shall be notified to the applicant together with the reasons for the decision and instructions on how to apply for review. The Registrar may, in appropriate circumstances, make a provisional decision to grant payment of legal assistance.”

[130] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[131] Ibid.

[132] Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Decision Concerning the Organization of Common Legal Representation of Victims, https://www.legal-tools.org/doc/1d23b9/, para. 24.

[133] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, https://www.legal-tools.org/doc/95f763/, para. 23.

[134] Gaelle Carayon, “How Can Legal Representation for Victims at the ICC be Improved?” IJ Monitor, June 8, 2015, https://www.ijmonitor.org/2015/06/how-can-legal-representation-for-victims-at-the-icc-be-improved/ (accessed July 20, 2017); see also REDRESS, “Representing Victims Before the ICC: Recommendations on the Legal Representation System,” http://www.redress.org/downloads/publications/1504reprentingvictims.pdf, p. 10 (terming the Registry’s current approach to consultation with victims under Rule 90 “consultation-lite” and noting that consultations “are not focused on whether victims might prefer one individual over another, but on what qualities they might may wish to see in their lawyer”).

[135] Human Rights Watch interview with H.H., January 17, 2017.

[136] Human Rights Watch interview with K.Y., January 17, 2017.

[137] Human Rights Watch group interview with CORE Team members, January 16, 2017.

[138] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on contested victims’ applications for participation, legal representation of victims and their procedural rights, https://www.legal-tools.org/doc/95f763/, para. 20.

[139] Ibid., para. 21.

[140] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on the “Request for a determination concerning legal aid” submitted by the legal representatives of victims, http://www.legal-tools.org/doc/cdab49/, para. 12. Separately, the Chamber’s judge also declined to reorganize legal representation for trial, after both teams of counsel had raised concerns. External counsel had sought to have a rule 90(2) or (3) process implemented, while the OPCV viewed that concerns could be addressed within the current system. The judge considered the system in place to be effective, although he urged the two teams to cooperate to the extent possible. See Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Decision on Requests Concerning Organisation of Victim Representation, June 17, 2016, http://www.legal-tools.org/doc/2f1c0a/ (accessed July 24, 2017).

[141] Prosecutor v. Ongwen, ICC, Decision on the “Request for a determination concerning legal aid” submitted by the legal representatives of victims, http://www.legal-tools.org/doc/cdab49/, para. 12.

[142] See, for example, Catherine Denis, ASF, “Victims’ Choice vs. Legal Aid?” http://www.asf.be/wp-content/uploads/2016/05/ASF_VictimsParticipationAsAWhole_20160526_EN.pdf, paras. 29-32.

[143] Ibid., para. 31; ASP, “Supplementary report of the Registry on four aspects of the Court’s legal aid system,” ICC-ASP/11/43, November 1, 2012, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-43-ENG.pdf (accessed July 24, 2017), para. 49.

[144] Human Rights Watch interview with CSO representative, Gulu, January 15, 2017.

[145] Human Rights Watch interview with ICC staff, January 19, 2017.

[146] Human Rights Watch interview with CSO representative, January 15, 2017.

[147] The four Reports show that from September 18 to December 7, 2015, a total of 1,622 victim applications from Lukodi were transmitted, compared to 126 from Pajule; 107 from Odek; 117 from Abok; 22 under the thematic category of ‘persecution;’ 42 under the thematic category of ‘sexual and gender-based crimes;’ and 12 under the thematic category of ‘conscription and use of child soldiers.’ These numbers included duplicates and so the total is greater than the 2,086 applications ultimately transmitted. See Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, First Report on Applications to Participate in the Proceedings, https://www.legal-tools.org/doc/3343a5/, paras. 1, 16; Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Second Report on Applications to Participate in the Proceedings, https://www.legal-tools.org/doc/b65d0c/, para. 1; Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Third Report on Applications to Participate in the Proceedings, November 18, 2015, https://www.legal-tools.org/doc/ab6096/ (accessed July 20, 2017), para. 1; Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Fourth Report on Applications to Participate in the Proceedings, December 7, 2015, https://www.legal-tools.org/doc/3011a8/ (accessed July 20, 2017), para. 1.

[148] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Second Report on Applications to Participate in the Proceedings, September 26, 2016, https://www.legal-tools.org/doc/06937c/ (accessed July 20, 2017), footnote 5; Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Third Report on Applications to Participate in the Proceedings, October 6, 2016, https://www.legal-tools.org/doc/732182/ (accessed July 20, 2017), para. 11.

[149] See, for example, Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Third Report on Applications to Participate in the Proceedings, https://www.legal-tools.org/doc/732182/, para. 12.

[150] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Consolidated list of victims admitted to participate in the proceedings, November 30, 2016, https://www.legal-tools.org/doc/f92292/ (accessed July 20, 2017), para. 3. 

[151] Human Rights Watch interview with ICC staff, January 19, 2017.

[152] Human Rights Watch separate interviews with X.F., Z.U., L.D., V.B., and D.B., Abok Sub-County, January 19, 21, 2017.

[153] Human Rights Watch interview with community leader, Abok Sub-County, January 19, 2017; see also Human Rights Watch separate interviews with Q.I., O.I., and D.B., Abok Sub-County, January 21, 2017.

[154] Human Rights Watch separate interviews with X.F., Z.U., B.O., N.B., L.D., Q.I., V.B., O.I., and D.B., Abok Sub-County, January 19, 21, 2017.

[155] Human Rights Watch separate interviews with X.F., L.D., Q.I., V.B., and D.B., January 19, 21, 2017.

[156] Human Rights Watch separate interviews with H.D., B.O., L.D., Q.I., V.B., V.F., and O.I., Abok Sub-County, January 19, 21, 2017.

[157] Human Rights Watch separate interviews with community leader, X.F., N.B., Q.I., and O.I., January 19, 21, 2017.

[158] Human Rights Watch interview with X.F., January 19, 2017.

[159] Human Rights Watch interview with B.O., January 19, 2017.

[160] Human Rights Watch interview with H.D., January 19, 2017.

[161] Human Rights Watch interview with L.D., January 21, 2017.

[162] Human Rights Watch separate interviews with M.Y. and P.L., Abok Sub-Country, January 19, 21, 2017.

[163] Human Rights Watch interview with V.F., January 21, 2017.

[164] Human Rights Watch interview with N.B., January 19, 2017.

[165] Human Rights Watch interview with X.F., January 19, 2017.

[166] Human Rights Watch group interview with CORE Team members, January 22, 2017.

[167] Ibid.

[168] Ibid.

[169] Human Rights Watch interview with community leader, Pajule Sub-County, Pader District, Uganda, January 18, 2017.

[170] Ibid.; Human Rights Watch interview with K.G., Pajule Sub-County, January 18, 2017.

[171] Human Rights Watch interview with CSO representative, January 15, 2017.

[172] Prosecutor v. Ongwen, ICC, Case No. ICC-02/04-01/15, Third Report on Applications to Participate in the Proceedings, https://www.legal-tools.org/doc/ab6096/, para. 5.

[173] Ibid., footnote 21.

[174] Human Rights Watch interview with K.G., January 18, 2017.

[175] Human Rights Watch interview with B.Q., Lapul Sub-County, Pader District, Uganda, January 18, 2017.

[176] Trial Chambers, for the most part, have been reluctant to reorganize legal representation; while this protects continuity of representation, it puts even more importance on the process used at pre-trial.

[177] See REDRESS, “Representing Victims Before the ICC: Recommendations on the Legal Representation System,” http://www.redress.org/downloads/publications/1504reprentingvictims.pdf; Catherine Denis, ASF, “Victims’ Choice vs. Legal Aid? Time for the ICC to Re-Think Victims’ Participation as a Whole,” http://www.asf.be/wp-content/uploads/2016/05/ASF_VictimsParticipationAsAWhole_20160526_EN.pdf.

[178] ICC, “Chambers Practice Manual,” February 2016, https://www.icc-cpi.int/iccdocs/other/Chambers_practice_manual--FEBRUARY_2016.pdf (accessed July 27, 2017).

Posted: January 1, 1970, 12:00 am

A community member in Lukodi stands next to a memorial of a May 19, 2004 massacre, one of the atrocities for which Dominic Ongwen is facing charges before the International Criminal Court. Over 4,000 victims are participating in the trial. 

© 2016 G. GT.

Many people in Lukodi, in northern Uganda, were killed and abducted by the brutal rebel group, the Lord’s Resistance Army (LRA) in 2004. Today, a former LRA commander, Dominic Ongwen, is on trial for these crimes and others at the International Criminal Court (ICC). Community leaders in Lukodi, concerned that victims’ views wouldn’t be fairly represented during the trial, helped people in the community choose their own lawyers to represent them at the ICC. But initially, the ICC didn’t grant the lawyers financial legal aid, undercutting that choice. Researcher Michael Adams speaks with Amy Braunschweiger about the case, and how the ICC should better support victims to choose their own lawyers – a move that would help engage victims in the court process.

Who are Ongwen’s victims?

In northern Uganda, the government moved people from their homes into camps for displaced people, ostensibly to protect them from the LRA. But the LRA began to attack the displacement camps.

The ICC’s case is focused on attacks on these camps in 2003 and 2004 in four places, Abok, Lukodi, Odek, and Pajule. The ICC prosecutor alleges they were carried out by forces under the command of Ongwen, a former child soldier. LRA fighters entered these camps, killed people, burned some of them alive, looted people’s homes, and abducted men, women, and children.

The ICC charged Ongwen with 70 counts of war crimes and crimes against humanity. A total of 4,107 people who applied to be part of the case are officially “victim participants” in his ICC case, though they’re obviously only a fraction of the victims. The victims’ family members, even children, were killed, they lost their property. Some are women subjected to sexual violence and forced marriage to LRA fighters. Ongwen is accused of murder, rape, torture, destruction of property, and pillaging, among other crimes.

Who are the people who hired their own lawyer?

They are people affected by the attack on the Lukodi camp. When Ongwen was transferred to The Hague in January 2015 and the ICC arrest warrant against him was made public, it turned out that it focused on this one community – Lukodi. After the 2004 attack, people fled to another camp much farther away and after many years went back home to their land.

Leaders from Lukodi’s community, like teachers and farmers, worked with nongovernmental organizations that helped them to think about what victims needed as they tried to move forward in their lives. They created a memorial that listed the names of those killed. Eventually, the organizers became a community reconciliation team.

Lukodi’s leaders were concerned Ongwen might be released. And they felt they didn’t have a lawyer to present their perspective in the court.

Why didn’t they have a lawyer? Didn’t the ICC appoint lawyers?

The ICC has an office of lawyers tasked with assisting victims and sometimes representing them. This is an independent office, but think of them as “in-house” lawyers.

Before Ongwen’s arrest, lawyers from this office had been appointed to represent some specific victims. But apparently no one from Lukodi had applied to be recognized as a victim, as they didn’t know the case centered around them.

I think it’s fair to say that the relationship between the ICC’s in-house lawyers and the people in Lukodi was unclear. Before Ongwen’s surrender, the head of the ICC’s office of lawyers for victims said the office’s budget to make trips to Uganda kept getting cut because there was no progress in the case. They planned to make a trip in February 2015, but it was cancelled. Lukodi’s leaders had heard about an ICC lawyer for victims, but they had never met one.

What did they do?

They decided to look for a lawyer themselves. They reached out to lawyers, who came to speak with the leadership. The leadership organized very comprehensive, participatory meetings with victims of the LRA attack in Lukodi. So everyone came, and together they decided who they wanted to speak for them as their lawyers. This process was rolled out between June and October 2015, and was very organized.

Dominic Ongwen, a former senior rebel commander from the Lord's Resistance Army in Uganda, sits in the courtroom of the International Criminal Court (ICC) during the confirmation of charges in The Hague, the Netherlands January 21, 2016. 

© 2016 Reuters

Was this a problem for the ICC?

Yes and no.

If you look at the court’s cases over time, it seems like it has gotten used to organizing legal representation for victims. As a result, we don’t think the court had a policy that helped it respond effectively if victims chose their own lawyer.

In September or October 2015, people working for the ICC in Uganda knew that the people of Lukodi were selecting their own lawyer, and told the judge it would be a good time to step in and start organizing legal representation. The judge took note, and basically said, “Let’s just see what happens.” And we think it was very good that the judge just didn’t step in and take control.

But roughly a month later, the judge issued a decision, stating that while the lawyers could represent the victims who had chosen them, the court wouldn’t appoint the lawyers people in Lukodi selected to the level of “common legal representatives.” This is important because that meant their lawyers wouldn’t get financial legal aid from the court. The court made the lawyer from the ICC’s office the common legal representative in the case.

What happened next?

The lawyers continued to work for the victims even though the victims could not pay them.

It meant something to the people that a lawyer had come and seen them and asked them for permission. They felt included and that their views mattered. And that built a lot of trust. One of their lawyers is Ugandan, and he had worked with a Ugandan victims’ association and also had experience at the ICC. The other lawyer is from Chile and used to work at Human Rights Watch.

In total, by the time the trial started in December 2016, more than 2,600 victims had signed with these lawyers, both in Lukodi and other communities.

Other communities?

In September 2015, the prosecutor expanded charges to include crimes committed in Pajule, Odek, and Abok.

Because the court at first decided not to step in and organize legal representation for the people in Lukodi, it created an opportunity for these victims to choose their own lawyers, too.

But unlike in Lukodi, these new victims weren’t organized, and they didn’t have the same type of leadership. They also had little exposure to victims’ rights processes and the ICC. The experience of choosing lawyers in each of the three communities turned out to be very different. In Abok, there seem to have been some community meetings to discuss options, while in Odek, people made individual decisions. In Pajule, the few people we spoke with didn’t know much about choosing a lawyer. But we know from court records that some people there were already represented by the court lawyer. If you didn’t make a choice, you were assigned to the common legal representative.

In our view, if the ICC had more time to help educate these communities, they would have been better prepared to choose who they wanted as their lawyers. So when Ongwen’s pretrial process began in January 2016, there were officially two teams of lawyers, one supported from the court’s budget and one not.

At some point were Lukodi’s lawyers granted legal aid, I hope?

The lawyers made a couple of requests to the court to receive legal aid. Eventually, the registry – a branch of the ICC – reported that more people had joined the team of lawyers and asked the judges for their views on granting legal aid to them. And the judge now overseeing the case basically said, “No – but I leave it to you.” And the registry began paying the lawyers legal aid. This is important because now people can keep the lawyers they chose without worrying that the lawyers will run out of money to be able to come to Uganda to consult with them.

Does the ICC have the money to educate people to make this choice and to pay any lawyers they choose?

The court is facing a very tricky budget situation. Some countries that are members of the ICC don’t want to give the court more money. That’s a big part, we think, of why the court is making some of these decisions to limit the number of lawyers involved in cases. Our view is that the court shouldn’t cut victim’s rights first. Also, states need to recognize that the court can’t function at its best unless victims are included.

Why shouldn’t the ICC appoint victim’s lawyers, as it seems some victims don’t have enough information or understanding of the ICC to choose?

First, because under the court’s rules victims have a right to choose. It’s not an absolute right, but it’s there for a reason. For people from Lukodi, the choice seems to have helped give some of them confidence in what their lawyers are doing and the court’s proceedings. It’s not the only factor by any means, but choice, if it’s done well, can really promote victims’ trust in the ICC.

The ICC is often accused of not connecting as well as it should with victims and their concerns, and it should do everything it can to bring victims into the trial process. And this is another tool to do so.

What do we want from the ICC?

It seems like the court wasn’t expecting victims to pick their own lawyer, and when they did, they didn’t have a Plan B for how to respond. But we really think the court needs a new policy entirely, a new Plan A, for engaging with victims about their legal representation in a timely way.

The ICC has a policy for consulting victims when the court selects their lawyer, but as other nongovernmental groups have also pointed out, that hasn’t worked well enough, especially when it comes to making sure victims have a voice in that decision. We think there needs to be a fresh approach. We want the court’s judges and its registry to work together and to be very attentive to the needs and wishes of victims. In Lukodi, it would have meant asking “Hey, do you want to choose your own lawyers?” and then treating their answer as important. As far as we can tell, that question was never asked. And if it was, it doesn’t appear to have influenced the court’s decisions about which lawyers would be supported financially.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am