Redress and Justice

The objective of the existing ad-hoc Tribunals of Rwanda (ICTR) and the former Yugoslavia (ICTY) and the future ICC is to end impunity by holding perpetrators of egregious crimes accountable and administer justice. Achieving these objectives, however, depends on victims and witnesses coming forward to testify and tell their stories. Wendy Lobwein, Support Officer, Victim and Witness Unit of ICTY, inferred from the many anecdotes of hundreds of witnesses, that victims and witnesses essentially come to testify for four main reasons, which in turn complements the objectives of the tribunal.

-To speak for the dead,
-To look for justice in the present,
-To help the truth be known by the world,
-In the hope that such crimes can be prevented in the future.

Given the fundamental role victims and witnesses play in the judicial process, protection of their interest in the process cannot be emphasized enough. The ICC statute has rightly recognized the importance of the role played by victims and witnesses and has appropriately provided for protection of their interests, participation in court proceedings, protective measures to ensure their safety and security and reparation in the statute.

The experiences of the women from Rwanda are also illustrative. Witness A stated that the ICTR, seated in Arusha, Tansania, felt alien to her and therefore any justice that might be achieved or administered by that tribunal did not feel like it was “hers.” While there was an explanation provided as to why the seat of the Court was placed in Arusha, others did speak to the concern that by not having the tribunal in the affected communities there is a danger that those communities will have no faith in the possibility of justice.

Annette Lyth, speaking from her experience working on the ground in Rwanda with the United Nations and in Kosovo with the Organization for Security and Cooperation in Europe, reaffirmed the witness’ perception and stated that it was one of the major differences between survivors in Kosovo and survivors in Rwanda. Survivors in Kosovo, she stated, considered the ICTY as “theirs,” even though it was located in the Netherlands, whereas survivors in Rwanda were distrustful of the Court and felt alienated and confused by it.

Francoise Ngendahayo, Advisor on Gender Issues and Assistance to Victims in the ICTR, also acknowledged this as a problem. She said that the tribunals need to do a better job of assisting and empowering victims if they are to seek their participation. Many Rwandan women are not aware of law or legal systems. Therefore, tribunals such as the ICTR and, ultimately the ICC, need to take into account the need for education and guidance. Otherwise, the survivors and witnesses in places like Rwanda will not feel that the justice is “theirs.”

Ms. Ngendahayo also made mention of a project the ICTR is undertaking to provide a community facility in Rwanda where survivors can go to watch the proceedings on a tele-monitor and keep up-to-date on the cases and processes in the ICTR.

Need for notice of proceedings, training and gender-sensitive personnel

Witness B stated that she initially cooperated with investigations pursued by the ICTR but later refused to participate further because she had no faith in their protection efforts and she did not like the way she was treated during her encounters with tribunal staff. She stated that she was never informed of what was happening or would happen during her travel to the Court in Arusha. She was never informed that the case had progressed to trial until she was approached over a year after her initial contact with investigators and told they needed her testimony.

She stated that even when she made inquiries about what was happening, her questions were brushed aside. Witness B stated at the panel that the staff should always explain to people during their involvement in the process, but especially before they are taken somewhere, what is going to happen to them. More victims might continue to participate, she said.

Mr. A.U. Okali made an effort to respond to the witness’ concerns. He stated that the Registry has made efforts to ensure that consulting victims and witnesses throughout the process become a part of the basic regime and that the staff at the tribunal, as well as the ICC, should do all it can in practice to ascertain what victims and witnesses need and respond to those needs.

Ms. Lyth stated that the ICC process must ensure that all organs of the court are staffed with competent and compassionate persons. As it stands now at the ad hoc tribunals, victims and witnesses are dependent on the good will and sensibilities of the individuals working there for the most part. She noted this cannot always be relied upon and it is much better to mandate such things, as has been done in the Rome Statute, and should be further developed in the Rules of Procedure for the ICC, to ensure that the organs of the court are staffed with such persons. She gave an example of the fact that for a long time at the ICTR there were no investigators who had worked with victims of sexual violence in their home countries. She compared this to Kosovo where there were staff who were more experienced in the nature of such crimes and more sensitized.

Ms. Ngendahayo also echoed these concerns and stated that often policemen and security people dealt with victims without considering their needs and wants. She stated that there need to be training so that all staff will remember that the victims are human beings and that justice must have a human face. Ms. Ngendahayo said there is a need for support programs for witnesses and potential witnesses. This is necessary not only to meet the needs of the witnesses but also to ensure that the tribunals can benefit from their participation.

Also, like Ms. Lyth, she emphasized the need to specifically include such provisions in the Rules of Procedure and Evidence to prevent the laborious task of building them in subsequent to the creation of the Court as has been attempted at the ICTR. Ms. Ngendahayo described the efforts of those at the tribunal to respond better to the needs of victims and the bureaucratic resistance with which such efforts are often met.

The need to include gender-sensitive judges and staff was also illustrated by the Hon. Elizabeth Odio-Benito, who as one of only two women judges at the ICTY, stated that she was surprised to note the absence of charges of crimes of sexual violence in the first indictments of the ICTY. The historic neglect and absence of charging of crimes of gender and sexual violence under different humanitarian treaties and statutes is glaring. Before the establishment of ad-hoc tribunals, crimes of sexual violence were not widely understood and treated as war crimes. It took the active efforts of the women judges at the tribunals to ensure that prosecutors charged such crimes even though evidence of widespread commissoin of such crimes would have been obvious.

Her concerns were reiterated by Dr. Sara Sharrat, a former NGO Observer at the ICTY, who stated that she was able to observe the difficulties involved in getting such crimes charged and prosecuted and had it not been for the women on the Court and the gender advisor in the Office of the Prosecutor, these crimes might have gone unrecognized.

Need for active participation and legal representation

Dr. Sharrat noted that the interest of women victims and witnesses and those of the Prosecutor are often in conflict. Investigators often interact with victims in a manner that causes re-traumatization of women victims of sexual violence. A provision for legal representative of the victim would allow for intervention at such times to protect the victim from being subjected to such situations.