Trauma-Misinformed Justice at the International Criminal Court

Trauma permeates international criminal justice. Exposure to life and physical integrity threatening events is indiscernible from the gravest international crimes—genocide, crimes against humanity, war crimes, and the crime of aggression. The very creation of the International Criminal Court (ICC) was underpinned by efforts to shield humanity from mass trauma. The 1998 Rome Statute—the document establishing the ICC— acknowledges “unimaginable atrocities that deeply shock the conscience of humanity”, and mandates the Court to prosecute the mentioned crimes which “threaten the peace, security and well-being of the world”.

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].

Some traumatic memories cannot be retrieved. Regarding Witness P-0010, the Chamber in Ntaganda highlighted that “in relation to certain issues, such as the circumstances of her alleged abduction [by militia], she frequently noted that she did not understand a question, or that her memory was failing her’’ [para. 91]. Witness’ reliability is subsequently questioned: according to the Defence, P-0010 was a “combative, biased and uncooperative witness” [para. 91].

The ICC procedural documents incorporate special measures to children, elderly people or SGBV victims. These include anonymity, testimony by video-link, and image and voice distortion.

The Court nonetheless tends to undermine the impact of the trial. In Lubanga, for example, the Trial Chamber attributed the evidence giving to mere “stress” [para. 478]. After being presented a photograph of a perpetrator, the mentioned Witness-132 in the Katanga trial was visibly affected; yet the bench was guarded in acknowledging her distress: “it does not rule out the possibility […] that her emotional response to the photograph could be explained by the trauma she suffered, since it can indeed be disturbing or painful to have to recall such experiences [para. 1005; emphasis added].

J. Herman once wrote, “if one set out by design to devise a system for provoking intrusive post-trauma symptoms, one could not do better than a court of law”. The magnitude and intensity of the international crimes compels the ICC to treat everyone engaging with the justice process as having encountered traumatic events. Its policies and procedures should ensure victims and witnesses’ safety, stabilisation and fairness.

One thought on “Trauma-Misinformed Justice at the International Criminal Court

  1. Really insightful analysis of the ICC and need for reform around how evidence from trauma victims is collated and treated.

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