Legal Representatives For Victims From Darfur: Memorandum Of Concern

INTERNATIONAL JUSTICE PROJECT Legal Representatives for Darfur Victims Division WANDA M. AKIN

Member, New Jersey Bar List of Counsel, International Criminal Court [email protected] [email protected]

ONE GATEWAY CENTER, SUITE 2600 NEWARK, NEW JERSEY 07102 ---------------------------------TELEPHONE: 973-623-6834 FACSIMILE: 973-735-2695

CIATTA Z. BAYSAH

Member, District of Columbia Bar Member, New Jersey Bar Member, New York Bar [email protected]

RAYMOND M. BROWN Member, New Jersey Bar Member, New York Bar List of Counsel, International Criminal Court [email protected] [email protected]

LEGAL REPRESENTATIVES FOR VICTIMS MEMORANDUM OF CONCERN To: From: Date: Re:

Whom It May Concern Wanda M. Akin and Raymond M. Brown, Member List Counsel and Legal Representatives for Victims in Darfur Situation 6 June 2009 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 NGO’s. 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

Office of the Registrar 6 June, 2009 Page 2 of 3

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 significant work undertaken at no cost to the Court by victim’s 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

Office of the Registrar 6 June, 2009 Page 3 of 3

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 Sudan’s 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 Court’s activities. We have had broad exposure to both the dedicated international civil servants who conduct the Court’s 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.

W:\documents\International Criminal Tribunals\Darfur Victims' Project\Internalization\6.18.09 Internalization Memo Final with edits.doc