Forgotten Victims and the Scales of International Criminal Justice
An Analysis of the Treatment of Witnesses in the Trial Process of the ICTY

» by Kamala Janakiram

The 20th century has witnessed a drastic increase in the use of civilians in modern warfare as a means to achieve military targets. While the majority of casualties during World War I were members of the armed forces, more than 90% of today's casualties are civilians. Furthermore, since World War II, the character of war has shifted from inter- to intra-state conflicts. In recent internal conflicts, the destruction of homes and villages, civilian infrastructures, cultural property and monuments, and the systematic targeting of civilian populations of specific ethnic and/or religious groups, have been deliberate tactics used by politicians, whose objectives have been to create 'ethnic homogeneity' as a means to secure territory and political power. Internal conflicts have involved crimes of large scale murder; rape; torture; inhumane imprisonment; forced expulsions; and involved the perpetration of neighbour-on-neighbour violence organized, executed and sanctioned by the State. This type of violence has not only broken down societal structures but also resulted in an assault on the 'networks of familial and intimate relationships that provide the foundation for a functioning community.' Consequently, social networks and other support mechanisms are attacked and weakened in their capacity to provide a traumatized population with the necessary support in the post-conflict phase.

The trauma caused by massive organized violence has a profound impact on communities, families and individuals. Unlike natural disasters where communities typically come together, organized ethnic violence has a political agenda, targets important symbols of the violated population, and is meant to destroy, inflict hurt and create terror in order to tear societies apart. The trauma resulting from organized mass violence jeopardizes the victim's 'very fundamental view of the world as a predictable, just and meaningful place to live', and entails high levels of deprivation, anger and aggression, mixed with fear, despair, hopelessness and loss of control, that may be aggravated by feelings of betrayal and burdened by suspicion and mistrust in the victim. In the absence of the re-establishment of meaningful patterns of interactions in the community and the development of a social environment that is active, organized, supporting and above all safe, the consequences both for individuals and the community are long lasting, with the increased possibility of revenge and an increased likelihood of trans-generational transmission of violence within communities. The aftermath of conflicts that involve gross human rights violations against civilian populations has not only exposed the extensive devastation these methods have had on the social fabric of multi-ethnic societies, but also revealed the overwhelming nature of the task of reconciling and reconstructing post-conflict societies after their destruction.

In the last decade, the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the International Criminal Court (ICC), has asserted international criminal trials as a significant response to mass communal violence. It is the purpose of this paper to situate the international criminal justice system within the type of context it operates in, to indicate the limitations and advantages this context presents, to situate the position of victims within the international criminal process, and to recognize that certain shortcomings of the international criminal justice system can and need to be corrected in order to assist post-conflict reconstruction.

This paper begins by explaining that the international criminal justice process is derived from traditional criminal law and national criminal jurisdictions. Section III explains the position of victims within national criminal systems and the changes in the norms of their treatment within these systems. Section IV illustrates the constrained environment in which the International Criminal Tribunal for the Former Yugoslavia (ICTY) operates and the consequent importance of witnesses to international trials. Sections V and VI highlight the risks witnesses face in testifying for the ICTY and their motivations to testify, as well as the motivations of the international criminal justice system to prosecute perpetrators of war crimes. Section VII explains the ICTY's treatment of witnesses through an analysis of its Statute and its Rules of Procedure and Evidence, while section VIII describes witnesses' experience in the court room. Section IX explains the immediate and long-term post-trial effects on the witness and section X looks at what the term 'reconciliation' means to victims, seeking to analyze in how far the international legal process fulfills victims' needs.

© Kamala Janakiram 2004.

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