It may appear that in practice the ICC addresses trauma in a sensitive manner. In the first case of Lubanga, the judges noted that it may explain incoherence in the witnesses’ testimonies. Therefore, the Chamber “made appropriate allowance for any instances of imprecision, implausibility or inconsistency” [para. 103]. The latter approach had been echoed in the subsequent judgments (see, for example, Bemba, para. 230; Katanga, para. 83; Ngudjolo, para. 49; Ntaganda, para. 79).

Nevertheless, whilst the ICC seeks to embrace stories of adversity, it simultaneously acts as their arbitrary. What constitutes the “appropriate” is open to interpretation, thus the recognition of psychological injury is bound to be consensual. Consequently, representation of trauma—its instances and recollection—is stripped of heterogeneity, and its subjects are denied the unadulterated expression of suffering.

Minimisation of trauma

The courtroom stories revealed multiple instances of trauma in the seminal Lubanga case, including abduction of young people, separation from families, forced enrolment to military forces, and participation in hostilities.

Yet, the bench voiced reservations as to the witnesses’ experiences:

“The Chamber has taken into account […] the trauma the children called by the prosecution are likely to have suffered. […] some or all of them may have been exposed to violence in the context of war, and this may have had an effect on their testimony” [para. 479; emphasis added].

A well-examined lack of witness credibility may have had effect on the judges’ position; however, the legal facts should have been separated from the war actualities embedded in the broader case context. The latter concerned the DRC wars, marked by the destruction of infrastructure, massacres, cannibalism and public rapes. In the province of Ituri where the ICC investigation was conducted, 95 per cent of youth were found to have witnessed at least one traumatic event.

The probabilistic language used in Lubanga demonstrates the ICC’s failure to recognise trauma to its full extent; the issue further compounded by the relevant behavioural misinterpretations.

In the Katanga case, Witness P-28 demonstrated reluctance in providing the account of a particular battle. This surprised the Chamber: a “detached report […] did not appear to reflect the acts of someone who had directly participated in the attack, but rather seemed to be the recollection of a person far removed from the battlefield’’ [para.134].

However, such behaviour is indicative of dissociation; a psychological defence mechanism separating an individual from the traumatic event. Even though the ICC is claimed not to factor demeanour in determining witness’ reliability, it should refrain from remarking on behavioural peculiarities, which might be natural adaptive responses to threatening situations.

Prioritisation of sexual violence victims

Within the juridical trauma discourse, a category of crimes could be distinguished as receiving a different and favourable ICC’s treatment, namely the crimes of sexual and gender-based violence (SGBV). Notwithstanding the acquittal of Jean-Pierre Bemba in 2018, the Trial Chamber’s judgment serves as an instructive example: addressing rape as a crime against humanity and a war crime, it contains most references to trauma. The offence is portrayed as “humiliating and traumatic” [para. 1010].

The judges elaborated the effects of sexual violence—physical, psychological, social—in great detail. In one particular instance, Witness P22, who was raped by three men at gunpoint, was reported to be “suicidal, reluctant to engage in any sexual relationship, and exhibited symptoms consistent with post-traumatic stress disorder” [para. 508; see also paras. 469; 483; 492; 494].

It is true, as J.N. Clark observes, that the light cast on rape victims individualises them and directs attention to their needs. Nevertheless, it is odd that such excessive remarks are made solely with regards to SGBV victims. More problematically, the phrase “traumatising circumstances”—indicating extremely severe occurrences—appears to be primarily reserved for female SGBV victims (see, for example, paras. 468; 492).

Moreover, the depiction of individual harm is fragmented; sparse and mediated references to trauma symptoms oversimplify its understanding. The Court tends to misuse both gender lens and the language of trauma in representing collective wrongdoing. In honouring primarily female victims of sex crimes, the ICC— in D. E. Buss’ words—creates “archetypal representations of the ‘woman victim’ (that) too easily stand in as a conceptual shorthand for the complexity of atrocity’’.

Retraumatisation in the courtroom

Evidence giving is emotionally strenuous. As S. L. Steele notes, an individual subjected to the trial process may come to “physical or psychological harm in a new and different manner to the original traumatisation”. This is well exemplified by Witness’ P-132 experience in the Katanga trial: while testifying about multiple acts of rape and sexual slavery, on several occasions she “was overwhelmed by emotion and had to stop when she broke down in tears, leading to the hearing’s adjournment” [para. 205].