‘Judges should protect witnesses’
The lasting pain of war trauma
Suzanne Schot readily admits that it sometimes becomes too much for her. Sometimes, the transcripts she reads, her source material, is so confrontational that she needs a break.
‘I’ll go for a run or a walk’, she says. ‘Just to process what I just read. Distance myself from it. I have that luxury.’
She realises that the people whose testimonies she’s reading don’t have that same luxury. They carry the pain and the trauma of what happened with them. Always.
For four years, Schot studied the testimonies given by traumatised witnesses, such as the survivors of Srebrenica testifying at the Yugoslavia tribunal. Or witnesses who appeared in the International Criminal Court in The Hague, as well as a few other international cases that were handled in the Netherlands. Always large, international, criminal trials: cases that called war criminals and cruel prison guards to account.
I could feel that mother’s pain
She remembers the story of a mother: witness number 51 in the Yugoslavia tribunal. Eight years after it happened, the Bosnian Muslim told the story of how she and her daughter were captured in Foča. How she was raped by soldiers. How they put a gun to her head and forced her to find her daughter, and how the girl was taken and gang raped. How she heard her daughter cry out and was powerless to stop it. ‘I could feel that mother’s pain’, says Schot. ‘They are extremely intimate, personal accounts of what happened.’
This affects her, not least because she sees that people giving their testimonies relive what happened to them. The trauma that they endured years ago is being dredged back. ‘They then run the risk of being re-traumatised’, says Schot.
That can in turn impact their testimony. They can either get so emotional that they’re unable to finish, or their testimony becomes so confusing that it can’t be used anymore. One famous example is Jewish writer Yehiel Denur testifying during the Eichmann trial in 1961. During his opening statement, Denur became so overwhelmed that he completely shut down.
Besides, witnesses have to answer all kinds of questions: Who did what? How did they do this? Are you sure? What happened exactly? And after all that, people may still doubt their stories. That would badly affect anyone, especially the men and women who went through such awful things.
Trials can have an impact on people even long after they’re over, like exacerbating someone’s post-traumatic stress disorder. Some people suffer insomnia, or flashbacks. ‘These kinds of big, international criminal cases often depend on witness testimony’, says Schot. ‘There is rarely any documentation or forensic evidence.’ That means the survivors’ testimonies are needed to punish the guilty.
Schot wondered if it was possible to strike a balance. How can we deal with a witness’ trauma in such a way that it protects them from more suffering while still guaranteeing the suspects’ right to a defence? There is a lack of insight into how trauma impacts people’s testimony. There is also a lack of rules and guidelines for judges to use when dealing with traumatised witnesses. ‘But those are sorely needed’, says Schot, who is getting her PhD for her research this month.
It’s not that no one pays any attention to it, she emphasises. During preparations, when witnesses are being located and selected, there are safeguards in place to make sure they can handle the mental stress of the trial. There’s also the growing realisation that memory is unreliable.
There is rarely any forensic evidence
‘The stress of the situation means people start focusing on central details’, says Schot. ‘They focus on the thing they think is most important. One example is the weapons focus effect.’ When this happens, a victim is so focused on the weapon that’s being pointed at them that they no longer see any peripheral details, like what kind of shoes the perpetrator was wearing, or what their clothes looked like.
‘This can also lead to gaps in their memory, and witnesses will sometimes fill in these gaps’, Schot says. ‘But the courts take that into consideration. Inconsistencies in peripheral details doesn’t always mean a testimony is useless.’
However, she says, the fact that judges tend to be unclear on how they reached a judgement, or which details they consider peripheral or central is an issue. They should do better. ‘They should study how to assess trauma.’
That might be the biggest issue she encountered in her research: the fact that there are no guidelines for judges on what they can do to help ‘vulnerable witnesses’.
‘Look’, she says, ‘obviously, the defence has the right to interrogate the witness and test how reliable they are. But judges should intervene to protect vulnerable witnesses’ interests. Sometimes, there’s a psychiatrist in attendance. But who does what, and when?’
She refers to a case in which a witness was asked to identify his late wife from a photograph. ‘The picture was intense; she was already dead in it. He’d identified her before but was asked to do so again in court. Sometimes, judges want to see how witnesses react. It’s part of the legal process.’
The man refused to look at the photo again. It was too painful. ‘That’s when the defence intervened’, says Schot. The defence said the man didn’t have to look at the photo again, as long as they could ask him a few extra questions. ‘That shows how hard it is to strike a balance’, says Schot.
Normally, it would be a judge who intervenes on a vulnerable witness’ behalf. They make sure that the questions they’re asked aren’t as embarrassing or confronting. That’s a good thing, says Schot, as it can actually help their testimony. ‘However, there aren’t enough rules and guidelines to ensure this happens consistently.’
As a result, in one case a woman had to provide various details about the sexual violence she was subjected to, while a judge in another case said this was too confronting. ‘I’m not saying they need a strict protocol or anything’, says Schot. ‘But there should be some guidelines for judges to fall back on.’
The way judges thank the witness is just so awkward
These would also help at the end of people’s testimonies. Sometimes, victims are allowed to read their own statement. However, it sometimes happens that a judge will cut that statement short, which leaves the witness with a bitter taste in their mouth.
Some judges are excruciatingly clumsy in the way they say goodbye to a witness leaving the courtroom. There was one judge in the Yugoslavia tribunal who told a witness whose father has almost certainly died in the genocide: ‘Thank you, I hope your father will come back. Thank you.’
To a woman who’d testified on the sexual abuse she’d suffered, a judge said: ‘I must say that you are now a free woman, and you do have an opportunity to enjoy life. There are always things that can be celebrated, for example, a birthday or things like that.’
‘I think they’re honestly just trying to thank the witness’, Schot explains, ‘but the way they do so is just so awkward.’ She thinks judges would be helped by a script. That way they could thank the witness without referring to events themselves.
The point is for a judge to be gentle with witnesses. ‘Their well-being should be a priority from the very first moment to when they leave the courtroom.’
She thinks this would ultimately lead to a better legal process. One that would benefit witnesses, benefit their testimony. Finally, it would benefit judges, because it would get them what they need. ‘It works both ways.’