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INTERNATIONAL JUSTICE PROJECT

Legal Representatives for Darfur Victims Division

WANDA M. AKIN ONE GATEWAY CENTER, SUITE 2600 CIATTA Z. BAYSAH


Member, New Jersey Bar NEWARK, NEW JERSEY 07102 Member, District of Columbia Bar
List of Counsel, Member, New Jersey Bar
International Criminal Court ---------------------------------- Member, New York Bar
wanda@brownakin.com TELEPHONE: 973-623-6834 cbaysah@akinlegal.com
wakin@akinlegal.com FACSIMILE: 973-735-2695
RAYMOND M. BROWN
Member, New Jersey Bar
Member, New York Bar
List of Counsel,
International Criminal Court
raymond@brownakin.com
rbrown@greenbaumlaw.com

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 Situation
Date: 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 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
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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 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
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6 June, 2009
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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
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.

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