legal representatives for victims from darfur: memorandum of concern

8/14/2019 LEGAL REPRESENTATIVES FOR VICTIMS FROM DARFUR: MEMORANDUM OF CONCERN

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INTERNATIONAL JUSTICE PROJECTLegal Representatives for Darfur Victims Division

WANDA M. AKINMember, New Jersey BarList of Counsel,

International Criminal [email protected]@akinlegal.com

RAYMOND M. BROWNMember, New Jersey BarMember, New York BarList of Counsel,International Criminal [email protected]@greenbaumlaw.com

ONE GATEWAY CENTER, SUITE 2600

NEWARK, NEW JERSEY 07102

----------------------------------TELEPHONE: 973-623-6834FACSIMILE: 973-735-2695

CIATTA Z. BAYSAHMember, District of Columbia BarMember, New Jersey Bar

Member, New York [email protected]

LEGAL REPRESENTATIVES FOR VICTIMS MEMORANDUM

OF CONCERN

To: Whom It May Concern

From: Wanda M. Akin and Raymond M. Brown, Member List Counsel and Legal

Representatives for Victims in Darfur SituationDate: 6 June 2009

Re: Legal Representatives for Victims Memorandum of Concern

We are Legal Representatives for persons who have been recognized as Victims in the

Darfur Situation. We have been engaged in this representation since 2005 when we were first

approached in the United States by Darfurians driven from their homes by war crimes and crimes

against humanity under the jurisdiction of the Court committed by Janjaweed Militia and soldiers

wearing the uniforms of the Government of Sudan.

From 2005 until early 2009 we performed this representation with no financial assistance

from the Court. We have received appropriate cooperation from the Registry, guidance from the

Victims Participation and Reparations Section, and early excellent advice and support from the

Office of Public Counsel for Victims (OPCV). We have also liaised and cooperated with the

Office of the Prosecutor (OTP). Nonetheless, our representation has been undertaken at our own

expense, aided by the voluntary assistance of other lawyers, student interns, and by limited

logistical support of several NGOs.

The persons we represent would have been unable to satisfy the requirements of Rules of

Procedure and Evidence (RPE) 85(a) without this assistance. These initial stages of

representation have been undertaken largely without financial support from the Court since no


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6 June, 2009

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legal aid is provided to victims prior to their recognition by the Court. Nonetheless, these

initial stages of representation are crucial to the success of victim participation.

Many of the persons who have approached us do not read or write the working or official

languages of the Court. None are familiar in detail with either the jurisdictional requirements of

the Rome Statute or the nuances of Element analysis. Few if any have experience with modes of

proof necessary to satisfy the increasingly sophisticated jurisprudence of the Court on issues of

identity or harm. Fewer still would have been able to explore proofs of contextual

circumstance elements which we have been able to do while respecting and cooperating with the

OTP.

We write this letter not to draw attention to our own participation at the Court but

because we believe that the current internalization notion has the capacity to considerably

retard victim representation before the Court and to drastically reduce the numbers of lawyers

around the world who can fulfill the mandate urged on the Bar by successive Registrars to act as

ambassadors for the Court.

This internalization proposal is most recently reflected in paragraph 37 of the Interim

Report of the Court on legal aid: Legal and financial aspects for funding victims legal

representation before the Court. This proposal was vigorously debated at the Seventh Seminar

of Counsel held by the Registry in The Hague, 11-12 May 2009. While we cannot speak for all

counsel present, there seemed to be a consensus amongst counsel that representation provided by

excellent, independent lawyers would offer both the reality and appearance of effective

representation of victims. Independent lawyers would be in a better position to conduct

numerous activities necessary to victim representation, such as locating victims and potential

intermediaries, recruiting volunteers, collaborating with NGOs and appealing to their own

governments to support the Court.

We realize that the ASP, the CBF and the Registry bear serious responsibility for

ensuring fiscal prudence in the operations of the Court. We have already noted the significantwork undertaken at no cost to the Court by victims counsel at the application stage in the Darfur

Situation. Such efforts are not likely to be made if victims would be shorn of the continuity of

representation and assistance of chosen counsel under RPE 90.1 once applications were

completed.

Indeed, RPE 90.1 reflects a fundamentally important aspect of justice that participants in

judicial proceedings should be free to choose their own legal representatives. This guiding


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principle especially is true for victims of international crimes who have real concerns for their

personal security and handling of sensitive personal matters (e.g., victims of sexual violence)

which require a particularly high degree of trust between the client and legal representative.

Moreover, an internalization of the legal representation of victims wholly within the

OPCV would tend to reduce the independence of judgment which outside counsel can offer

clients, and may present circumstances of potential conflicts where victim interests may differ.

We should note that the concerns we have expressed are shared by other victims Legal

Representatives with whom we met during the Seventh Seminar of Counsel and two of whom

were at our meeting with you. We also note that Legal Representatives for other victims,

including those currently on trial in the Lubanga case, have noted a dramatic reduction in the

otherwise valuable support by the OPCV as a result of the OPCV being assigned direct

responsibility for victims in that case.

Additionally, it is difficult to imagine that the Court can maintain an OPCV capable of

handling the likely surge of potential victims, applicants and others should an accused like

Sudans President, Omar Al-Bashir, whose scope of responsibility is broad, be brought to The

Hague.

In short, we have by our conduct demonstrated considerable commitment to this Court

and respect for its processes. We have represented victims who have been willing to take

considerable personal risk to participate in this Courts activities. We have had broad exposure

to both the dedicated international civil servants who conduct the Courts activities and the

zealous lawyers anxious to appear before this Court and support its mission. These experiences

have led us to conclude that a large scale internalization of victim representation would

adversely affect the quality of justice available to future victims and ultimately hinder the effort

to translate the promises of Article 68 into reality.

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legal representatives for victims from darfur: memorandum of concern

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