Victim testimony does not occur in a legal vacuum. This chapter explores socio-cultural and psychological barriers that inhibit testimony for victims of international crimes. These barriers can arise at the time of the crime, during the period between the perpetration of the crime and testimony, and during testimony itself, where the psychological impact of trauma has affected the ability of the victim to recall or coherently articulate their experiences. While many of these barriers stem directly from the abuse suffered, actions of the courts, including collective approaches to victim representation, the use of interpreters and intermediaries, and the nature and style of questioning, also have the potential to mediate or inhibit individual testimony. These barriers pose challenges not only for the victim themselves, but also for Prosecution and Defence counsel, victims’ lawyers, victim support personnel and judges in the attainment and assessment of victim evidence.
- International Criminal Court
- Psychological impact
- Sexual violence
- Contaminated testimony
- Composite narrative
- Collective representation
Dr. Ellie Smith is a consultant and trainer specialising in medico-legal and psychological issues affecting victims of international crimes within the justice process.
Elements of this chapter have their origins in an earlier presentation relating specifically to the investigation and prosecution of crimes of sexual violence given at the International Criminal Court Student Network conference, The Lubanga Trial: Lessons Learned, The Hague, 8th–9th March, 2012, which was subsequently published in Issues in International Criminal Justice, Special Volume, 2012, 99–112.
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See, for example, Modvig and Jaranson 2004, p. 43.
For full diagnostic criteria and features, see American Psychiatric Association (APA) 2013, pp. 271–276.
A similar, although not identical definition is used in Caruth 1996, p. 91. The definition is adjusted here to the specific context.
Herlihy et al. 2002, p. 326.
International Rehabilitation Council for Torture Victims (IRCT) 2007, p. 16.
IRCT 2007, p. 16.
Clinical research with victims of trauma shows that those with a history of sexual violence experience greater levels of shame when compared with victims of non-sexual violence, assessed by reference to a 25-item scale investigating characterological, behavioural and bodily shame, and considering experiential, cognitive and behavioural components of shame within each of the three identified domains: Andrews et al., reported in Bogner et al. 2007, pp. 75–81. See also Herlihy and Turner 2006, p. 85.
See, for example, Peel 2004, pp. 61–70.
See, for example, United Nations Division for the Advancement of Women, Toronto, 9th–12th November 1997, Gender-Based Persecution: UN Report of Expert Group Meeting, UN Doc. EGM/GBP/1997/Report, para 41.
According to the Istanbul Protocol, the UN-endorsed manual for the effective investigation and documentation of torture, ‘psychological consequences…occur in the context of personal attribution of meaning, personality development, and social, political and cultural factors’, Office of the United Nations High Commissioner for Human Rights (OHCHR) (2004), Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, www.ohchr.org/Documents/Publications/training8Rev1en.pdf. Accessed 30 July 2014. See also IRCT 2007, p. 24.
Hook and Andrews 2005, p. 434.
See ICC, Protocol on vulnerability assessment and support procedure, ICC-01/05-01/08-974-Anx2 (2010).
See, for example, the decision to permit expert evidence at the sentencing hearing of in ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Trial Chamber III, Decision on requests to present additional evidence and submissions on sentence and scheduling the sentencing hearing, ICC-01/05-01/08-3384, 4 May 2016, para 12.
For a detailed exploration of the notion and nature of personal core assumptions and their role in the formation of traumatic response, see Janoff-Bulman 1992, pp. 3–25.
Herlihy and Turner 2006, p. 84.
See, for example, Doak 2011, p. 272.
ICC, Prosecutor v. Bosco Ntaganda, Office of the Prosecutor, Prosecution’s list of expert witnesses and request pursuant to regulation 35 to vary the time limit for disclosure of the report of one expert witness, ICC-01/04-02/06-560, 16 April 2015; ICC, Prosecutor v. Bosco Ntaganda, Trial Chamber VI, Decision on Defence Preliminary Challenges to Prosecution expert witnesses, ICC-01/04-02/06-1159, 9 February 2016. For transcripts of the expert testimony, see ICC, Prosecutor v. Bosco Ntaganda, Transcript 21 April 2016, ICC-01/04-02/06-T-84-ENG; ICC, Prosecutor v. Bosco Ntaganda, Transcript 22 April 2016, ICC-01/04-02/06-T-87-ENG.
A cross-sectional survey of a population-based sample of over 1,300 victims conducted in the Former Yugoslavia ten years after the conflict there found that a third of those sampled had suffered from PTSD, with 22% of the study sample experiencing current PTSD symptoms (Basoglu et al. 2005, p. 585). In a randomised study into the mental health status of 400 victims of the Rwandan genocide, researchers found that over half of the victim population still had PTSD symptoms ten years later, while 60% suffered from major depression (Brouneus 2010, pp. 419–420).
See, for example, the evidence of expert clinical witness John Yuille, in ICC, Prosecutor v. Bosco Ntaganda, Trial Chamber VI, Transcript 21 April 2016, ICC-01/04-02/06-T-84-ENG, and in particular, pp. 13–19.
See Article 68(1) of the Rome Statute of the International Criminal Court, A/CONF.183/9 (2010) (the ‘ICC Statute’).
Private communication with OTP psychologist, 9 March, 2012 (records on file with the author). The approach is also referenced in para 70 of the ICC Office of the Prosecutor’s Policy Paper on Sexual and Gender-based Crimes (2014), http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf. Accessed 17 May 2016. Notably, while such an approach might be believed to better protect both the emotional safety of the victim and the integrity of the evidence when it is placed before the Court, there has been no psychological assessment, follow-up or research conducted into the psychological impact on the victim of rejection by the Office of the Prosecutor’s investigators. There is, however, some evidence at least that a denial of justice may be experienced as psychologically detrimental by victims already suffering a degree of trauma, and this may be particularly relevant where engagement with the investigative and prosecutorial process was perceived by the victim as an aspect of justice; see, for example, Danieli 2009, p. 352; Sveaass and Lavik 2000, pp. 42–44, noting that in psychological terms the denial of justice represents a continuation of violence; Rauchfuss and Schmolze 2008, p. 40.
ICC Statute, Article 43(6).
Article 12(4) of the Statute of the Special Tribunal for Lebanon, S/RES/1757 (2007) (the ‘STL Statute’), together with Rule 50 of its Rules of Procedure and Evidence, STL-BD-2009-01-Rev.7-Corr.1., (2015). See also Chap. 6.
Although services are hugely under-resourced, and in practice, the Court provides psychological support via agreements with two clinical NGOs. See in particular, Leang and Williams 2010, p. 160.
Provided for explicitly in the case of the ICC, Rules 88(1) and (2) of the Rules of Procedure and Evidence, ICC-ASP/1/3-Corr.1 (Part.II-A) (2002).
Herlihy and Turner 2006, pp. 85–87.
APA 2013, p. 291.
Weiss et al., cited in Bogner et al. 2007, p. 75.
Known as peritraumatic dissociation. See Weiss et al., ibid., p. 75.
This has been noted, for example, in the context of the UK domestic asylum system during the conduct of asylum interviews by Home Office representatives, Bogner et al. 2007, pp. 77–78.
Herlihy and Turner 2006, p. 86.
Herlihy and Turner, for example, observe that ‘when someone is interviewed and asked about an experience that was traumatic, and has only, or largely, memories of this fragmented type, they are unlikely to be able to produce a coherent verbal narrative, quite simply because no complete verbal narrative exists.’ Herlihy and Turner 2006, p. 86.
Bogner et al. 2007, p. 78.
Van Velsen et al. 1996, p. 188.
Duggan and Abusharaf 2008, p. 639.
The Office of the Prosecutor obtained a report from an expert psychologist to this end, see, http://www.ijmonitor.org/2010/10/lubanga-trial-highlights-plight-of-child-soldiers/. Accessed 19 May 2016.
Herlihy et al. 2002, p. 326.
See Smith and Boyles 2009, p. 13. See, generally, Baillot et al.
Herman 1997, p. 195.
See, for example, Women’s Initiative for Gender Justice, Gender Report Card on the International Criminal Court 2014, p. 66.
Levi 1979, pp. 15–16.
Kelsall and Stepakoff 2007, pp. 372–373.
There is primary clinical evidence of this occurring, for example, during the course of narrowly-focused psychological investigations; see Igreja et al. 2004, p. 256.
De Jong 2004, p. 164.
See, for example, Aroche and Coello 2004, p. 56.
Modvig and Jaranson 2004, p. 37.
Notably, full rehabilitation in this context is likely impossible, and the concept of rehabilitation in the aftermath of atrocities is therefore a relative one. The aim of therapeutic engagement in such circumstances is to achieve as full rehabilitation as possible; see 1984 UN Convention against Torture, and Other Cruel Inhuman or Degrading Treatment of Punishment 1465 UNTS 113, Article 14. For a detailed exploration of the notion of rehabilitation in the context of gross human rights violations, see Smith et al. 2010, pp. 12–18.
In the case of the ICC, the broad, societal goal of peace is contained in the Preamble to the ICC Statute.
Agger et al. 2009, p. 215. Notably, the suggestion is anecdotal and requires further empirical investigation and verification.
Private conversation with psychologist for the ICC Office of the Prosecutor, 9 March, 2012 (records on file with the author).
Herman 1997, p. 181.
Herman 1997, p. 179. Notably, the impact of any determination by the court that a victim lacks competence to testify to their own experiences and has instead been the victim of implanted memories is potentially disempowering, and hence contrary to the court’s restorative aim. The area therefore requires further investigation and detailed consideration by the court.
Private communication with the Case Manager for the Legal Representative of Victims in ICC, Prosecutor v. Uhuru Muigai Kenyatta, 5 September 2013 (records on file with the author).
This is particularly so where the dominant narrative is a heroic one; see in relation to truth commission processes, Grunebaum and Henri 2003, pp. 103–104. In such circumstances, issues of shame might arise to inhibit personal testimony.
See, generally, Raphael 2003, pp. 146–161.
Some, albeit limited, progress has already been made in this regard in the International Criminal Tribunals for the former Yugoslavia and Rwanda, the former of which has concluded that PTSD would not necessarily affect the credibility of a victim/witness; see ICTY, Prosecutor v. Furundzija, Trial Chamber, Judgment, IT-95-17/1-T, 10 December 1998, paras 108–109; ICTY, Prosecutor v. Kunarac et al., Appeals Chamber, Judgment, IT 96-23-I & IT 96-23/1-An, 12 June 2002, para 324; ICTR, Prosecutor v. Bagilishema, Trial Chamber, Judgment, ICTR 95-1A-T, 7 June 2001, para 24. Statements to date, however, have been limited to PTSD diagnoses as opposed to symptomology, or otherwise make vague reference to “trauma”, without consideration of specific sequels.
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Smith, E. (2017). Victims in the Witness Stand: Socio-Cultural and Psychological Challenges in Eliciting Victim Testimony. In: Tibori-Szabó, K., Hirst, M. (eds) Victim Participation in International Criminal Justice. International Criminal Justice Series, vol 11. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-177-7_10
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