Witness to rape: the limits and potential of international war crimes trials for victims of wartime sexual violence

The International Journal of Transitional Justice, Vol. 3, 2009, 114–134,doi: 10.1093/ijtj/ijn036

Advance Access publication: 23 January 2009

Witness to Rape: The Limits andPotential of International War CrimesTrials for Victims of Wartime SexualViolence

Nicola Henry∗

Abstract1

Despite the proliferation of trauma and memory research in recent years, we know verylittle about the contribution of transitional justice mechanisms to psychological healingand societal reconciliation in the aftermath of genocide, armed conflict and politicized vi-olence. Many scholars in this area have argued that the disclosure of traumatic experiencesis beneficial to the psychological recovery process for survivors of gross human rights vi-olations. This article critically examines this therapeutic assumption within a transitionaljustice paradigm. The article explores the potentials and limitations of international warcrimes trials for victims of wartime sexual violence, focusing specifically on the Interna-tional Criminal Tribunal for the former Yugoslavia (ICTY). The article provides a theoreti-cal framework for analyzing the significance of testimony at international war crimes trialsand raises some critical questions related to the psychological impact of trials. It is arguedthat due to the sheer diversity and heterogeneity of wartime rape victims, the experienceof giving testimony is likely to be mixed: while some victims may suffer under the con-straints of legal process, under the right circumstances, war crimes trials may help othersto make sense of their suffering.

IntroductionQ: The gangrape you described, was it painful?A: Yes.Q: How did this make you feel?A: I felt dead.2

On 30 March 2000, a young woman testified before the International CriminalTribunal for the former Yugoslavia (ICTY) in The Hague. In conjunction with thetestimony of other witnesses, she helped piece together evidence concerning the

∗ Lecturer in Legal Studies, La Trobe University, Australia. Email: [email protected] I would like to thank Brent Collett, Nesam McMillan, Peta Malins, Kirsty Duncanson and Antonia

Quadara for their valuable comments on earlier versions of this article. I would also like to thankthe anonymous reviewers for their helpful comments. I bear full responsibility for any errors.

2 Prosecutor v. Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic, nos. IT-96-23-T and IT-96-23/1-T(30 March 2000), 1391 [hereinafter ‘Foca’].

C© The Author (2009). Published by Oxford University Press. All rights reserved.For Permissions, please email [email protected].

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mass rapes and sexual enslavement that took place between July 1992 and February1993 in Foca during the armed conflict in Bosnia and Herzegovina. Her testimonydescribed how she was hiding in the woods with her mother, father and brotherafter her village was attacked in July 1992. On the day of her capture, Serb soldiersshot her mother and three other villagers as they tried to flee. She was rounded upwith other Muslim villagers, separated from the male members of her family, andtaken to Buk Bijela detention center where she was gangraped. According to hertestimony,

I just counted up to 10, because that was the order they made . . . I don’t know howmany there were after that number. There could have been about 20 of them. I don’tknow.3

For eight months, the witness was detained in a number of different local apart-ments where she was forced to perform domestic duties and raped repeatedly. Shewas able to flee Foca with the help of two Serbs on 5 March 1993.

The appearance of victims of rape at international war crimes trials marks anew era in the history of international humanitarian law (IHL).4 The extensivedocumentation of serious violations against women stands in contrast to the silencethat has historically characterized rape crimes and the experiences of victims inthe aftermath of armed conflict. Following the Second World War, the Nurembergand Tokyo tribunals failed to adequately address and prosecute sexual violence,and no victims of rape were called to testify at these proceedings. In comparison,contemporary war crimes tribunals have prosecuted sexual violence, rape andenslavement as crimes against humanity, genocide, torture and violations of thelaws or customs of war. This is significant for four key reasons. First, the prosecutionof rape under IHL contributes to the preservation of postconflict collective memoryby establishing a historical record of rape as a war crime. Second, it signals theacknowledgment of rape as a deplorable, condemnable and punishable act of war.Third, it ensures that perpetrators are held accountable for their crimes. Finally,the process is inclusive of victims, who have been deprived of a voice to speakabout the atrocities committed against them.

3 Foca, 1391.4 International humanitarian law is the collection of international laws found in treaties and state

practices that govern the conduct of armed conflict. International criminal courts/tribunals orwar crimes courts/tribunals oversee the prosecution of offenders under IHL. See, Geoffrey Best,Humanity in Warfare: The Modern History of the International Law of Armed Conflict (London:Weidenfeld and Nicholson, 1980). Note that this article examines the international rape trial, orthe prosecution of rape under IHL. The article adopts a broad definition of sexual violence thatdoes not differentiate between rape (e.g., sexual penetration without consent) and other forms ofsexual aggression (e.g., forced nudity and sterilization). For a detailed discussion of the genderednature of these definitions, see, Kirsten Campbell, ‘The Gender of Transitional Justice: Law, SexualViolence and the International Criminal Tribunal for the Former Yugoslavia,’ International Journalof Transitional Justice 1(3) (2007): 411–431. This article is primarily concerned with sexual violenceagainst girls and women because females are disproportionately targeted for these crimes duringarmed conflict. This does not imply less concern with sexual crimes against males, and many ofthe conclusions drawn here may be applicable to male victims and their experiences of givingtestimony before international criminal tribunals.

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The creation of ad hoc international criminal courts, the concomitant devel-opment of IHL and the unprecedented attention to wartime sexual violence islaudable. However, while the legal status of rape as a violation of IHL has beenrigorously examined,5 little attention has been paid to the experiences of victimswhen they appear as witnesses at these proceedings.6 This is most likely due to theabsence of empirical data, as few victims of sexual violence have actually testifiedbefore international criminal tribunals and very few have spoken about their expe-riences of testifying.7 This may in part be explained by the fact that rape continuesto engender stigma and taboo in postconflict communities, which has had theeffect of silencing many victims.

Using the ICTY as a case study, this article critically examines the therapeuticsignificance of testimony for victims of wartime sexual violence. The article isexploratory, and the intention is not to determine whether international criminaltrials constitute a psychologically restorative space for survivors or to recommendother transitional justice mechanisms that may or may not deal more effectivelywith rape crimes. Rather, the aim of the article is to identify the potentials andlimitations of legal processes and their outcomes for victims of sexual violencein the aftermath of conflict.8 The article acknowledges that victims are a diverseand heterogeneous group of individuals with differing expectations and experi-ences, and that an international criminal tribunal represents merely one limitedmechanism of postconflict justice.

The first section of the article assesses whether a therapeutic approach to inter-national criminal justice is an appropriate model for evaluating the prosecutionof wartime rape. The second section identifies the ways in which internationalcriminal justice can promote or hinder participation, validation, acknowledgmentand voice for victims of wartime sexual violence.

5 See, for example, Kelly D. Askin, War Crimes against Women: Prosecution in InternationalWar Crimes Tribunals (The Hague: Martinus Nijhoff Publishers, 1997); Danise Aydellot, ‘MassRape during War: Prosecuting Bosnian Rapists under International Law,’ Emory InternationalLaw Review 7(2) (1993): 585–633; Theodor Meron, ‘Rape as a Crime under InternationalHumanitarian Law,’ American Journal of International Law 87(3) (1993): 424–426.

6 Exceptions include: Rosalind Dixon, ‘Rape as a Crime in International Humanitarian Law: Whereto from Here?’ European Journal of International Law 13(3) (2002): 697–719; Julie Mertus, ‘Shoutingfrom the Bottom of the Well: The Impact of International Trials for Wartime Rape on Women’sAgency,’ International Feminist Journal of Politics 6(1) (2004): 110–128.

7 Few empirical studies have been undertaken on the experiences, thoughts and feelings of wit-nesses in general after they have testified at international war crimes trials and returned to theircommunities. An exception is: Eric Stover, The Witnesses: War Crimes and the Promise of Justicein The Hague (Philadelphia: University of Pennsylvania Press, 2005). See also, Marie-BenedicteDembour and Emily Haslam, ‘Silencing Hearings? Victim-Witnesses at War Crimes Trials,’European Journal of International Law 15(1) (2004): 151–177; Patricia M. Wald, ‘Dealing withWitnesses in War Crimes Trials: Lessons from the Yugoslav Tribunal,’ Yale Human Rights andDevelopment Law Journal 5 (2002): 217–239.

8 This may be viewed within a therapeutic jurisprudence paradigm, which is a useful tool foridentifying a spectrum of both positive and negative consequences of the legal process. See,David B. Wexler and Bruce J. Winick, Essays in Therapeutic Jurisprudence (Durham, NC: CarolinaAcademic Press, 1991). For a critique of therapeutic jurisprudence, see, Bruce A. Arrigo, ‘TheEthics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology andCrime,’ Psychiatry, Psychology and Law 11(1) (2004): 23–43.


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Healing through JusticeThe devastation wrought by genocide, torture, murder, rape, enslavement, dis-placement and other atrocities, coupled with a lack of acknowledgment of and fullaccountability for these gross human rights violations, gives rise to the perplexingissue of how individuals and their communities ‘heal’ after periods of political vio-lence. Since 1945, conflicts of both an international and noninternational character,including internal conflicts and tyrannical regime victimization, have resulted inmillions of injuries and deaths. The enormity of suffering is an issue that warrantsserious concern and attention. Indeed, an entire body of literature devoted to thesubject of transitional justice has emerged partly in response to the question ofhow societies and individuals, to use a somewhat cliched phrase, come to termswith the past.

Various studies have examined the restorative potential of transitional justicemechanisms.9 Underlying many of these studies is the common therapeutic as-sumption that speaking about traumatic experiences alleviates the psychologicalburden of silence and repression at both the individual and the collective level.10

Neil Kritz, for example, argues that it is essential for survivors of massive humanrights abuses to adopt mechanisms that facilitate closure rather than repression inorder to curb the excesses of vengeance.11

The social dimensions of healing were frequently promoted in the work of theSouth African Truth and Reconciliation Commission (TRC). During its operation,the TRC privileged the curative powers of disclosure with the slogan, ‘Revealing isHealing.’ In its final report, the TRC noted ‘the healing potential of storytelling, ofrevealing the truth before a respectful audience and to an official body.’12

Like truth commissions, it may be argued that international criminal tribunalsincreasingly embrace restorative goals. The ICTY, for instance, states that its ob-jectives are:

To bring to justice persons allegedly responsible for serious violations of internationalhumanitarian law; to render justice to the victims; to deter further crimes; [and] tocontribute to the restoration of peace by holding accountable persons responsible forserious violations of international humanitarian law.13

9 See, for example, Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atroc-ity (New York: Routledge, 2001); Neil J. Kritz, ed. Transitional Justice: How Emerging DemocraciesReckon with Former Regimes (Washington, DC: United States Institute of Peace Press, 1995); MarthaMinow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence(Boston: Beacon Press, 1998); Ruti G. Teitel, ‘Transitional Justice in a New Era,’ Fordham Interna-tional Law Journal 26 (2003): 893–906.

10 See, for example, Sofia Salimovich, Elizabeth Lira and Eugenia Weinstein, ‘Victims of Fear: TheSocial Psychology of Repression,’ in Fear at the Edge: State Terror and Resistance, ed. Juan E. Corradi,Patricia Weiss Fagen and Manuel Antonio Garreton (Berkeley, CA: University of California Press,1992).

11 Kritz, supra n 9.12 Truth and Reconciliation Commission of South Africa Report (Cape Town: Juta, 1998), vol. 5,

ch. 9.13 See the UN’s general information on the ICTY, http://www.un.org/icty/cases-e/factsheets/

generalinfoindex-e.htm (accessed 4 November 2008). Note that an earlier version of this list


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Little evidence exists, however, that criminal trials, truth commissions and otherofficial approaches can contribute substantively either to societal reconciliationor to victim vindication in the aftermath of genocide and armed conflict.14 EricStover notes:

Contemporary writings about the needs of survivors of mass atrocity are pepperedwith terms like ‘healing,’ ‘closure,’ ‘forgiveness,’ and ‘reconciliation’ and phrases suchas ‘coming to terms with the past’ . . . Indeed, a primary weakness of writings on justicein the aftermath of war and political violence is the paucity of empirical evidence tosubstantiate claims about how well criminal trials achieve the goals ascribed to them.15

The problem is not simply empirical. As Stover argues, the pursuit of justiceshould not be viewed as ‘some kind of panacea for righting past wrongs or as amagic bullet for healing victims and war-torn societies.’ He adds that to do so‘belittles the suffering of victims and distorts the enormity of the task of rebuildingshattered communities.’16 Vanessa Pupavac similarly argues that the ‘internationaltherapeutic paradigm’ and the increased popularity of war trauma studies obscuresthe material needs of survivors, pathologizes war-affected nations, authenticatesthe political, social and moral claims of the powerful and cultivates victims asvulnerable, infantile and in need of rescue.17

Others have argued that the hypothesized ‘therapeutic’ nature of criminal trialsis overly simplistic and that short-term catharsis and the opening of wounds withinthis context may be counterproductive.18 Concerns have since been raised regard-ing the development of IHL and the unrealistic expectations of law to performa wide range of functions, ranging from deterrence to reconciliation to victimrestoration.19

While valorizing the ‘healing powers’ of international criminal trials is prob-lematic, dismissing the possibility that victims can derive positive benefits fromtestifying before an international war crimes tribunal is also problematic, servingto deny both victim agency and resiliency. It must be recognized that for some vic-tims and witnesses ‘retributive justice is justice’20 and participation in war crimestrials may provide some degree of satisfaction unavailable to them in the nonlegalrealm.

included the goal of ‘promoting reconciliation in the former Yugoslavia,’ which has since beenremoved from the ICTY website.

14 A few studies have examined the relationship between war crimes trials and societal reconciliation.See, for example, Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice PreventFuture Atrocities?’ American Journal of International Law 95(1) (2001): 7–31; Laurel E. Fletcherand Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice toReconciliation,’ Human Rights Quarterly 24(3) (2002): 573–639.

15 Stover, supra n 7 at 11.16 Ibid., 16.17 Vanessa Pupavac, ‘International Therapeutic Peace and Justice in Bosnia,’ Social and Legal Studies

13(3) (2004): 377–401.18 See, for example, Fletcher and Weinstein, supra n 14.19 Mark Lattimer, ‘Enforcing Rights through International Criminal Law,’ in Justice for Crimes against

Humanity, ed. Mark Lattimer and Philippe Sands (Oxford: Hart Publishing, 2003).20 Judith Shklar, The Face of Injustice (New Haven, CT: Yale University Press, 1990), 94 (Emphasis

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Testifying to Rape: Procedure, Disclosure and OutcomeBased on anecdotal evidence from the hundreds of witnesses who have testifiedat the ICTY, the Tribunal’s Victim and Witnesses Section (VWS) has compileda list of four main motivations for why victims choose to bear witness: to speakfor the dead; to tell the world the truth about what happened; to look for justicein the present; and to help prevent future war crimes from occurring.21 Thesemotivations for testifying complement the Tribunal’s objectives of punishment,prevention, deterrence and rehabilitation.

The remainder of this article examines the nature of testimony in terms of boththe legal process (participation and disclosure) and the trial outcome (verdict andsentencing) in order to identify the obstacles that victims of rape may face. Threeaspects of testimony will be evaluated: (1) procedural fairness and justice, or theopportunity to be heard before an unbiased adjudicator based on the presentationof evidence; (2) disclosure, or telling one’s story; and (3) the trial outcome, orverdict.22

Perceptions of Procedural FairnessVarious studies of procedural justice have found that the judicial process haspositive dimensions in itself and may be equally influential as, if not more than,the outcome of the process.23 Tom Tyler argues that participation, dignity andtrust are three important determinants of people’s judgment about proceduralfairness. He specifies that participation refers to the presentation of evidence thatallows individuals to directly or indirectly affect judicial outcomes; dignity refersto people’s response to how they are treated; and trust concerns how people respectpolitical and legal authorities, such as judges and lawyers.24 Procedural fairnessmay be particularly important in rape trials, as victims frequently report loss ofself-esteem, self-worth and their sense of personal security after rape. As such, theymay have much invested in the way that they are treated during the trial.

21 Personal interview, Wendy Lobwein and Monika Naslund, The Hague, 17 October 2002. The VWSwas established according to Rule 34 of the ICTY’s Rules of Procedure and Evidence. It consists ofqualified staff who recommend protective measures for victims and witnesses, which includes theprovision of counseling and support, with particular emphasis on cases of rape and sexual assault.Rules of Procedure and Evidence, UN Doc. IT/32/Rev.41 (last amended 28 February 2008).

22 The following three cases are used in the analysis below based on their legal, political and psycho-logical significance: Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Lando; Prosecutorv. Anto Furundzija; and Foca. Analysis of the court transcripts involved the assessment of the con-duct of trials with respect to sexual assault witnesses. The transcripts were analyzed in terms ofthe manner and execution of the cross-examination by the defense and the type of questions putforward to witnesses.

23 See, for example, E. Allan Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (NewYork: Plenum Press, 1988); John W. Thibaut and Laurens Walker, Procedural Justice: A Psycholog-ical Analysis (Hillsdale, NJ: Lawrence Erlbaum Associates, 1975); Tom Tyler, ‘The PsychologicalConsequences of Judicial Procedures: Implications for Civil Commitment Hearings,’ in Law ina Therapeutic Key: Developments in Therapeutic Jurisprudence, ed. David B. Wexler and Bruce J.Winick (Durham, NC: Carolina Academic Press, 1996).

24 Tyler, supra n 23.


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First, participation is an important constituent of justice. Victim and witnesssupport services are vital to ensuring that witnesses understand the contributionthey have made to the international criminal justice process. According to ICTYpsychologists Wendy Lobwein and Monika Naslund, part of the VWS debriefingmandate is to remind witnesses of their part in the process and to reaffirm thevalue of their contribution to justice. Lobwein and Naslund argue that judges andlawyers should go out of their way to make witnesses feel their participation isvaluable.25 Stover also found that the reaction of prosecutors is important. If theprosecutor paid attention to witnesses’ needs, the witnesses would generally feelbetter about their experience. On the other hand, if the prosecutor showed littleinterest in witnesses after they had testified (e.g., if the prosecutor failed to thank awitness or make any attempt to debrief or follow up after the trial), the witnessesfelt less satisfied with the overall process.26

Although some witnesses may find their experience of giving testimony empow-ering, Stover found that many experience powerlessness and a feeling of lack ofcontrol over the legal process, which can lead to frustration and disillusionment.27

It is the prosecutor and not the victim who determines whether or not there willbe a trial and who will be put on trial. In addition, victims do not have the right toconfront the accused and have little or no control over the overall outcome of thetrial, including the verdict and the sentence.

Demographics of participation in court proceedings, particularly at an interna-tional level, are disproportionately male. For example, the overall proportion ofwomen who actually testify to rape at the ICTY is very low. According to VWSfigures, between 1996 and 2006, just over 3,700 witnesses appeared before theTribunal. About 18 percent (or 666) of these witnesses were female. The majorityof witnesses were between 41 and 81 years of age and only 4 percent were betweenthe ages of 21 and 30.28 These figures are indicative of the limited role that women,particularly younger women, play in prosecuting rape at the ICTY.

The unique difficulties experienced by women in the aftermath of armed con-flict may partly explain this disproportionate gender representation. In postcon-flict communities, women may have restricted mobility, lack of socioeconomicresources, poor education and poor legal literacy.29 In the aftermath of armed con-flict, many women may be caregivers, widows, refugees and internally displacedpersons, investing energy into survival and economic stability with little regardto the relative ‘luxury’ of legal justice. Furthermore, a combination of variousprosecutorial decision-making factors, such as the strength and credibility of the

25 Personal interview, Wendy Lobwein and Monika Naslund, The Hague, 17 October 2002.26 Stover, supra n 7.27 Ibid.28 Wendy Lobwein, ‘Experiences of the Victims and Witnesses Section at the ICTY,’ in Large-Scale

Victimisation as a Potential Source of Terrorist Activities: Importance of Regaining Security in Post-conflict Societies, ed. Uwe Ewald and Ksenija Turkovic (Amsterdam: IOS Press, 2006).

29 Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law (Boston:Kluwer Law International, 2001).


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witnesses, offense severity, the ‘winability’ of the case, whether the crime fits thenarrow legal framework and whether the accused can be apprehended andarrested, determines which cases are pursued. The stigma and taboo of sexualviolence also means that women may face psychological obstacles to traveling toThe Hague to testify.

The second determinant of procedural fairness is dignity, namely the quality ofbeing worthy of esteem and respect.30 Although it is generally assumed that victimsdesire punishment and retribution, many victims may be more concerned aboutwhether or not their human and civic dignity is restored.31 As Carlos Nino argues,although retributivism may be incapable of neutralizing the suffering of victims,‘what contributes to reestablishing their self-respect is the fact that their sufferingis listened to in the trials with respect and sympathy.’32

Dignity is particularly important in rape trials, regardless of whether the trials arenational or international.33 An official condemnation of the perpetrator’s actionsmay lessen feelings of complicity and self-blame. On the other hand, if judgesand lawyers belittle victim experiences or question their credibility, this may havenegative consequences. For example, a rape survivor from Rwanda who initiallycooperated with the International Criminal Tribunal for Rwanda (ICTR) laterrefused to participate ‘because she had no faith in their protection efforts and shedid not like the way she was treated during her encounters with tribunal staff.’34

Accounts of judges falling asleep during trial proceedings35 or of judges permit-ting hostile questioning are further examples of the impediments to feelings ofdignity and empowerment. In the newly created Bosnian War Crimes Chamberin Sarajevo, Madeleine Rees, chief of mission in Bosnia for the Office of the HighCommissioner for Human Rights, commented that one international judge askeda victim if she was a virgin at the time of the alleged rape and what she looked likewhen she was 16 years old.36 Although these examples may point to the shortcom-ings or insensitivities of individual legal personnel during rape trials, witnesses arelikely to be offended by such questions.

The third factor of procedural fairness is trust – faith in the promise of the lawas an ethical force capable of restoring the moral equilibrium through justice.37

Without trust, the law and its institutions could not exist or function. In practice,however, the legal process frequently elicits a deep mistrust of the law. Feminist

30 Tyler, supra n 23.31 Andre du Toit, quoted in, Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War

(Cambridge: Polity Press, 2002).32 Carlos Nino, Radical Evil on Trial (New Haven, CT: Yale University Press, 1996), 147.33 See, Bruce Feldthusen, Olena Hankivsky and Lorraine Greaves, ‘Therapeutic Consequences of

Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse,’ CanadianJournal of Women and the Law 12 (2000): 66–116.

34 Vahida Nainar, ‘Giving Victims a Voice in the International Criminal Court,’ United NationsChronicle 36(4) (1999): 14.

35 See, for example, Elizabeth Neuffer, The Key to My Neighbor’s House (London: Bloomsbury, 2001).36 Institute for War and Peace Reporting, International Justice Failing Rape Victims (5 January 2007).37 Tyler, supra n 23.


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scholars over the years have exposed the debilitating effects of domestic rape trialsand have questioned the law’s ability to adequately fulfill justice aspirations forvictims of sexual violence. More specifically, feminist scholarship has pointed to thegendered nature of international criminal law. Hilary Charlesworth and colleagues,for example, claim that the substantive, procedural and conceptual dimensions oflegal discourse are male defined.38 They argue that the international legal discoursehas the power to silence and devalue women’s experiences, making certain ideas,concerns and meanings ‘both difficult to say and difficult to hear. They seemillegitimate, embarrassing and irrelevant.’39 Katherine Lusby furthermore suggeststhat the law fails to capture the reality and complexity of rape.40

It could be argued that those who choose to bear witness at international rapetrials have invested a degree of confidence and trust in the idea that the processwill provide them with some measure of justice. Some victims tell no one abouttheir experiences until the day they enter the courtroom. One witness in the Focatrial, for example, had not even told her psychiatrist the details of the rape and hadspoken about it to nobody except the Tribunal investigators. Whether or not trustis sustained throughout the trial process and beyond is, of course, another questionentirely. In particular, trust is predicated on whether the victim is permitted to tellher story and whether she is satisfied with the eventual trial outcome.

DisclosureBearing witness is ‘something deeply human.’41 The reconstruction of traumaticexperiences may assist in the recovery of empowerment and dignity, while si-multaneously providing a historical narrative of political violence. According topsychiatrist Judith Herman, ‘Remembering and telling the truth about terribleevents are prerequisites both for the restoration of the social order and for thehealing of individual victims.’42 In particular, disclosing traumatic details through

38 Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to InternationalLaw,’ American Journal of International Law 85(4) (1991): 613–645.

39 Hilary Charlesworth, ‘Feminist Methods in International Law,’ American Journal of InternationalLaw 93(2) (1999): 382.

40 Katherine Lusby, ‘Hearing the Invisible Women of Political Rape,’ University of Toledo Law Review25 (1994): 911–954.

41 Inger Agger and Søren B. Jensen, ‘Testimony as Ritual and Evidence in Psychotherapy for PoliticalRefugees,’ Journal of Traumatic Stress 3(1) (1990): 116.

42 Judith L. Herman, Trauma and Recovery: The Aftermath of Violence from Domestic Abuse to PoliticalTerror (London: Pandora, 2001), 1. It is important to note that the study of psychological traumais embroiled in controversy. Mordechai Benyakar and colleagues argue that trauma has becomedevoid of its original meaning and that the trauma terminology has become meaningless, ‘usedin the vernacular to imply any terrible situation.’ Mordechai Benyakar, Ilan Kutz, Haim Dasbergand Mark Stern, ‘The Collapse of a Structure: A Structural Approach to Trauma,’ Journal ofTraumatic Stress 2(4) (1989): 431–449. In conjunction with debate over what constitutes trauma,there is growing concern about using western psychiatric models to explain trauma in non-western contexts, particularly in the aftermath of armed conflict. Some scholars have arguedthat the export of a trauma discourse may be inappropriate in this context because diagnosisand treatment embraces a predominantly individualistic approach that is not always relevant innon-western societies. See, for example, Patrick J. Bracken, Joan E. Giller and Derek Summerfield,‘Psychological Responses to War and Atrocity: The Limitation of Current Concepts,’ Social Sciencesand Medicine 40(8) (1995): 1073–1082.


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public or private testimony can serve to condemn the injustice of violence and torelieve pain and suffering.43

The adoption of testimony psychotherapy as a method for working with survivorsof state-sponsored violence is designed to help survivors overcome traumaticpasts. This method was first employed in Chile during the dictatorship of AugustoPinochet. The stories of torture survivors were taped, transcribed and sent tointernational organizations so that they could register and denounce the violence.In their work, Ana Julia Cienfuegos and Cristina Monelli observed the benefitsof the testimony method, arguing that the production of a written documenthelped victims integrate traumatic experiences into their lives, shedding light onthe significance of the political and social context.44

In another study, Stevan Weine and colleagues conducted a pilot study thatexamined levels of posttraumatic stress disorder (PTSD) in 20 Bosnian refugeesliving in Chicago, Illinois. They found that after a series of testimony psychotherapysessions, the refugees exhibited significant reductions in the rate of PTSD diagnosis,symptom severity and depressive symptoms. The researchers hypothesize thatrelational, integrative, ritual and social factors had considerable therapeutic impacton clinical improvement for survivors of political violence. In this context, theyargue that survivors are able to reframe their traumatic experiences, transformthem into life histories, share them with others in meaningful ways and begin todevelop an individual identity contextualized within a collective history.45

The use of the testimony method in private, psychotherapeutic contexts maybring psychological benefits; however, while some parallels may be drawn betweenthe two, giving testimony in a public forum is likely to be very different. Somestudies have examined the impact on victims who gave testimony at truth com-mission hearings, generally with ambivalent results.46 In one South African study,Brandon Hamber and colleagues conducted interviews with 20 members of a vic-tim support group who either gave a statement or testified publicly to the TRC’sCommittee on Human Rights Violations in 1998.47 Some felt the process to berelieving and/or comforting, while others felt it to be a waste of time. The studyconcluded that although participation may have been cathartic for some,

it does not seem to have helped many victims cope with their tragedies in a convincingmanner, or helped them deal with the ongoing personal and social difficulties createdby their victimisation.48

43 Agger and Jensen, supra n 41.44 Ana Julia Cienfuegos and Cristina Monelli, ‘The Testimony of Political Repression as a Therapeutic

Instrument,’ American Journal of Orthopsychiatry 53(1) (1983): 43–51.45 Stevan M. Weine, Alma Dzubur Kulenovic, Ivan Pavkovic and Robert Gibbons, ‘Testimony Psy-

chotherapy in Bosnian Refugees: A Pilot Study,’ American Journal of Psychiatry 155 (1998): 1720–1726.

46 See generally, Hayner, supra n 9.47 Brandon Hamber, Dineo Nageng and Gabriel O’Malley, ‘“Telling It Like It Is . . .”: Understanding

the Truth and Reconciliation Commission from the Perspective of Survivors,’ Psychology in Society26 (2000): 18–42.

48 Ibid., 33.


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Like truth commissions, international criminal tribunals are not therapy centersand, in the case of the ICTY, ‘the resources required for such reconstruction andrehabilitation are not within the means or remit of the Tribunal.’49 The disclosure oftraumatic experiences is complicated by the realities of postconflict environments.War victims and witnesses may experience more intense fear than victims ofordinary crime because of the large number of perpetrators and the associated fearof reprisal from these individuals, their friends and family members. In addition,because of displacement and the deaths of large numbers of people within thecommunity, many of the usual support structures are not in place to help victimsthrough the process of grief, trauma and recovery in the aftermath of conflict.50

This reminds us that ‘just revealing, is not just healing. It depends on how wereveal, the context of the revealing, and what it is that we are revealing.’51 Thissuggests that the disclosure of gross human rights violations is, as Fiona Rosswrites, ‘neither simple or neutral’:

Testimonies and telling are fragments, parts of people’s narration of their lives. Theyare particular instances, synopses of experience, told at particular times for particularaudiences and located in specific contexts.52

Much attention has been paid to the redemptive potential of story telling withintransitional justice mechanisms such as truth commissions and war crimes trials.It is argued that victims have the right to have the crimes committed against themknown and heard within the public sphere. Diane Orentlicher, for example, arguesthat a duty exists within international law to prosecute human rights violations‘shaped by a core belief that . . . [trials can] help the toxic effects of impunity.’53

Rape in war raises some unique issues in terms of public disclosure and testimony.On the one hand, the silence that envelops wartime rape has historically beenlabeled a terrible injustice. On the other hand, the public disclosure of wartimesexual violence within recent international war crimes trials has had particularramifications for victims of rape that are important to address.

Christopher Colvin argues that ‘storytelling itself may contribute to securingrelations of power and the marginalisation of storytellers.’54 This can happen inthree different ways. The first way in which law alienates witnesses is throughlanguage. Giorgio Agamben argues that ‘testimony is the disjunction between two

49 Lobwein, supra n 28 at 200.50 Ibid.51 Grahame Hayes, ‘We Suffer Our Memories: Thinking about the Past, Healing, and Reconciliation,’

American Imago 55(1) (1998): 43.52 Fiona C. Ross, Bearing Witness: Women and the Truth and Reconciliation Commission in South

Africa (London: Pluto Press, 2003), 332.53 Diane F. Orentlicher, ‘“Settling Accounts” Revisited: Reconciling Global Norms with Local Agency,’

International Journal of Transitional Justice 1(1) (2007): 15. See also, Diane F. Orentlicher, ‘SettlingAccounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,’ Yale Law Journal100(8) (1998): 2537–2615.

54 Christopher J. Colvin, ‘Ambivalent Narrations: Pursuing the Political through Traumatic Story-telling,’ Political and Legal Anthropology Review 27(1) (2004): 85.


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impossibilities of bearing witness.’55 The first impossibility refers to the deficiencyof language for the communication of inexplicable physical or emotional pain.56

The second impossibility is that ‘language, in order to bear witness, must give wayto non-language in order to show the impossibility of bearing witness.’57 In otherwords, bearing witness is impossible because of the stark incommensurabilitybetween experience and representation, and, as such, a ‘non-language’ or silenceprevails. For victims of rape, this is a silence imposed by political and legal discourse,and by the unspeakability of rape crimes.

Providing details of sexual atrocities and describing one’s private body parts isnot an easy endeavor, even in a safe and secure environment predicated on trustand confidentiality. The nature of criminal trials and the use of legal languagemake this task even more onerous. Witnesses are often forced to describe the rapeusing language that confirms facts rather than expresses emotions. For example,one of the witnesses in the ICTY Foca trial was asked by the prosecutor to describethe rape in the following manner:

Q: When you say ‘rape’ what exactly do you mean?A: I don’t understand your question.Q: You said that this 40 – this elderly man raped you. What exactly did he do?A: He forced me onto the bed to take my clothes off and then he raped me, heattacked me and raped me.Q: Does it mean he put his penis into your vagina?A: Yes.58

Julie Mertus argues that this truncated question and answer form focuses ‘my-opically on the actions of perpetrators,’ and that ‘witness after witness in the Focacase was compelled to narrowly define what happened to them in line with therules of evidence and the legal definition of rape.’59 These testimonies are no doubtmade even more difficult when the witness has not spoken to anyone at all aboutthe rape prior to testifying.

A second way that law marginalizes victim testimony is through the fragmenta-tion of testimony. In criminal trials, the story does not ‘belong’ to the survivor butrather to the court. A criminal trial is not designed as a truth-telling session andvictims are permitted to tell only a small piece of their story. Story telling is con-trolled by the rules of evidence and procedure, and it is fragmented and frequentlyinterrupted.60 Witnesses are rarely permitted to tell the court their stories in their

55 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen(New York: Zone Books, 1999), 39.

56 Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: OxfordUniversity Press, 1985).

57 Agamben, supra n 55 at 39.58 Foca, transcript, (30 March 2000), 1389–1391.59 Mertus, supra n 6 at 118.60 Paul Gewirtz, ‘Narrative and Rhetoric in the Law,’ in Law’s Stories: Narrative and Rhetoric in the

Law, ed. Peter Brooks and Paul Gewirtz (New Haven, CT: Yale University Press, 1996).


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own words, and prosecutors and defense lawyers often focus exclusively on con-firming factual evidence, such as the order and timing of the offense or the size andcolor of the room in which it took place. Mertus argues that because witnesses areunable to speak of their experiences in their own terms (e.g., describe the feelings,fears and social consequences of rape), the adversarial setting of an internationalcriminal trial makes ‘potentially therapeutic story-telling impossible.’61 An excerptfrom the Celebici trial illustrates the limitations of story telling for witnesses:

Q: Mrs Cecez, during the ten minutes that you were being raped, what were youdoing during that time?A: I could not do anything. I was lying there and he was raping me. There was –I had no way of defending myself. I couldn’t understand what was going on, whatwas happening to me.Q: Were you crying, Mrs Cecez?A: Yes, yes, I was, of course. I was crying. I said: ‘My God, what have I come tolive through?’ He said: ‘It is all because of . . . [your husband]. You wouldn’t behere if he were around,’ but I was completely beside myself. To trample a woman’spride like that. I come from a good family. It was a large clan. That is the fate . . .

Q: I want to stop you. Let me just clarify: when you were in the room, you werein the room by yourself and then this person Sok came; is that correct? Was therejust the two of you in the room?62

In this example, the witness attempts to express her feelings about having beingraped (‘I couldn’t understand what was going on, what was happening to me’),but the prosecutor is focused on eliciting the ‘facts’ of the case to secure a guiltyverdict. This approach illustrates the limited extent to which witnesses can telltheir stories.

Finally, the third major ‘disclosure obstacle’ is cross-examination. In the generalliterature on rape, it is widely recognized that cross-examination within an ad-versarial context creates an inherent power imbalance between female witnessesand defense lawyers. This is often reflected in the hostile and manipulative cross-examination strategies that have ‘a poignancy in the rape context that is unmatchedelsewhere.’63 Techniques designed to question credibility and raise evidence ofprior sexual behavior and complicity in the act can resemble strategies of domina-tion that remind the victim of the original assault.64 Despite the rules of evidence

61 Mertus, supra n 6 at 115.62 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, no. IT-96-21-T (17 March

1997), 494–495 (Celebici). This case was historically significant because it was the first internationalcriminal trial since Nuremberg and Tokyo where more than one defendant was in the dock. Duringthe trial, it was alleged that Zdravko Mucic, Hazim Delic, Esad Landzo and Zejnil Delalic directlyparticipated in or were responsible for atrocities, including murder, torture and rape. The trialwas significant not only because Bosnian Croats and Muslims were on trial for rape crimes (asopposed to Bosnian Serbs) but also because rape was recognized for the first time in history as acrime of torture.

63 John M. Conley and William M. O’Barr, Just Words: Law, Language and Power (Chicago: Universityof Chicago Press, 1998), 32.

64 Ibid.


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and procedure aimed at preventing some of the worst abuses of conduct, cross-examining lawyers have relatively unfettered powers to manipulate and discreditwitness testimonies.

One of the most prejudicial cross-examination strategies in rape cases involvesthe issue of consent,65 which is governed by Rule 96 of the ICTY’s Rules of Procedureand Evidence. The rule provides that (1) no corroboration of evidence given byvictims is required; (2) the manifestation of consent cannot be invoked if thevictim ‘has been subjected to or threatened with or has had reason to fear violence,duress, detention, or psychological oppression or reasonably believed that if thevictim did not submit, another might be so subjected, threatened or put in fear’;(3) the defense must satisfy the trial chamber in camera that the evidence ofconsent is relevant and credible; and (4) the prior sexual conduct of the victimis not permitted as evidence. It was hoped that these protective measures wouldencourage victims of rape to come forward to testify at the ICTY. The rule relieson the control of the judges and their ability to protect victims from offensiveallegations regarding complicity in rape. In many instances, however, the rule haseffectively been bypassed, as occurred during the Foca trial.66 In that case, thedefense suggested that the witness was not telling the truth because she was jealousand in love with the accused:

Q: Will you agree with me that jealousy is a psychological state, when a personimbued by [it] is ready to do certain things which people which are not imbuedby jealousy would not consider doing?A: I’m afraid I don’t understand that question at all. What are you talking about?What do you mean by jealousy?Q: I’m referring to the fact that you said that after four or five days, Klanfarejected you. I said yesterday that in my understanding, when a man rejects awoman, it is usually a person he loves and not a person who has been raped.A: How could I possibly be Klanfa’s beloved?67

65 For a discussion of how rape is prosecuted at international criminal tribunals, see, for example,Fionnuala Nı Aolain, ‘Radical Rules: The Effects of Evidential and Procedural Rules on the Regu-lation of Sexual Violence in War,’ Albany Law Review 60 (1997): 883–905; Christine P.M. Cleirenand Melanie E.M. Tijssen, ‘Rape and Other Forms of Sexual Assault in the Armed Conflict inthe Former Yugoslavia: Legal, Procedural and Evidentiary Issues,’ Criminal Law Forum 5 (1994):471–506; Kate Fitzgerald, ‘Problems of Prosecution and Adjudication of Rape and Other SexualAssaults under International Law,’ European Journal of International Law 8 (1997): 638–663.

66 This landmark case was the biggest rape trial in international history. In this case, three defendants,Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, were convicted of rape, torture andenslavement as crimes against humanity, violations of the laws of war and outrages upon personaldignity. The Foca decision was the first time in history that an international criminal tribunaldealt exclusively with rape and sexual enslavement. It was the first case to find defendants guiltyof rape as a crime against humanity. This case was also important as it considered the ‘mass rape’phenomenon in the war in Bosnia and Herzegovina and the integral role that sexual violence playedin the policy of ethnic cleansing during this conflict. For commentary on the trial, see, JoanneBarkan, ‘As Old as War Itself: Rape in Foca,’ Dissent 49 (2002): 60–66; Doris Buss, ‘ProsecutingMass Rape: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic,’ Feminist LegalStudies 10(1) (2002): 91–99; Mertus, supra n 6.

67 Foca, transcript (4 April 2000), 1624.


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By asking the witness whether she would define jealousy in this way, the defenselawyer implied that consent had been given. These types of questions serve as state-ments of blame, containing ‘clear negative evaluations of the witness’s behavior.’68

Even though cross-examination may be a grueling experience for victims ofsexual violence, this does not mean that trials automatically lead to damagingoutcomes for witnesses. Public disclosure enables formal recognition, an acknowl-edgment of harm and a shift of blame from the victim to perpetrator (althoughthis often depends on the outcome of the trial, as discussed below). JoannaShapland argues that although victims know the ‘truth’ of their experiences, theyneed recognition that they were indeed victims of the offense and acknowledg-ment of that status by the community and official agencies.69 The desire to publiclydisclose traumatic experiences to a wider audience and to ‘tell the world the truthabout what happened’ is commonly shared by survivors of human rights viola-tions; that is, to speak on behalf of loved ones and to demand personal retribution.FWS-50,70 who testified at the Foca trial, told the court that even though she hadremained silent about her experiences for eight years, she decided to testify to ‘letit be known that it really happened . . . It’s not easier for me to speak about it today,but nevertheless, I wanted everyone to hear about it.’71 During the same trial,another witness said she ‘wanted the whole world to know what was happening.’72

An international criminal trial has moral and emotional symbolism. To speakfor the dead is memorialization of loved ones who were killed in war; it representsa form of recognition and acknowledgment.73 Eric Stover observes in his studythat the importance of speaking for the dead was so pervasive that even if witnessesheld suspicions or doubts about the ICTY process, they would testify again in orderto ensure that those who died are not forgotten.74 Victims of rape might also feela strong moral duty to speak on behalf of those who do not have the courage totestify or those who are dead. According to Nusreta Sivac, a survivor of rape, theneed to speak for the dead and to tell the truth was a compelling reason to testifyfor women who were raped during the war in the former Yugoslavia: ‘I feel anobligation towards the women . . . towards all those people dear to me who arenow gone. If we don’t tell anybody, nobody will know.’75

Research also suggests that victims benefit psychologically from being able to telltheir stories, even in truncated form.76 The law, therefore, can function as a forum

68 Conley and O’Barr, supra n 63 at 28.69 Joanna Shapland, ‘Victim Assistance and the Criminal Justice System: The Victim’s Perspective,’ in

From Crime Policy to Victim Policy: Reorienting the Justice System, ed. Ezzat A. Fattah (Houndmills:Macmillan, 1986).

70 Note that FWS (Foca Witness Statement) was used as a pseudonym for witnesses in this trial.71 Foca, transcript (29 March 2000), 1247.72 Foca, transcript (3 April 2000), 1501.73 Minow, supra n 9.74 Stover, supra n 7.75 Mandy Jacobson and Karmen Jelincic, directors, Calling the Ghosts: A Story about Rape, War and

Women, 35 mm documentary film (New York: Women Make Movies, 1996).76 Hayner, supra n 9.


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of story telling and narrative. Telling one’s story enables the presentation of uniquenarratives that create both meaning and significance for those who testify, especiallyif the listener is perceived as neutral and sympathetic.77 Paul Gewirtz posits that thepresentation of these narratives enables a ‘unique vivid representation to particularvoices, perspectives and experiences of victimization traditionally left out of legalscholarship.’78 The provision of testimony may be a unique way for victims toreframe their experiences and tell their stories using legal-speak vernacular. Theverbalization and taxing documentation of the intimate details of sexual violenceare often couched in question and answer form, and a ‘yes’ or ‘no’ may be all thatis required.

The trial process also may create some emotional distance as a result of theordered nature of the court. Wendy Lobwein comments that many witnesses havetold her that their preparation for court was more draining than the actual trialbecause the court is theatrical, ordered and disciplined, giving them emotionaldistance from the content of what they are saying. She explains that many witnesseswho ‘howl their way through their stories with us’ are actually quite composed incourt and able to speak:

These [waiting] rooms see the weight of the emotions, the anxiety before court and thetears, the breaks, the anger, frustration or the happiness, the delight, the excitement –that all happens outside the courtroom.79

Witnesses may experience conflicting emotions during the trial process.80 Psy-chologists have shown, for example, that a mixture of relief, exhilaration, disap-pointment and depression often follows disclosure.81 In his study, Stover found thatoverall, testifying was positive for most witnesses.82 The study’s principal findingsare that ‘under the right conditions international criminal courts can acknowledgethe suffering of victims and help them discharge their moral duty to speak on behalfof the dead.’83 Lobwein argues that despite the inherent limitations of internationalcriminal courts, ‘there are ways that witnesses are able to use the experience oftestifying to bring some strength and resolution to parts of their lives.’84

These positive empirical and anecdotal reports may be compared with a studyundertaken by the Kosova Rehabilitation Center for Torture Victims (KRCT), inwhich 160 clients were asked about their experiences of testifying during the trial ofSlobodan Milosevic .85 The study found that over half of the clients who had been

77 Gewirtz, supra n 60.78 Ibid., 5.79 Personal interview, Wendy Lobwein and Monika Naslund, The Hague, the Netherlands, 17 October

2002.80 Stover, supra n 7.81 See, for example, Herman, supra n 42.82 Stover, supra n 7.83 Ibid., 16.84 Lobwein, supra n 28 at 200.85 Kosova Rehabilitation Center for Torture Victims (KRCT), Study with the Clients Treated at

the KRCT, from the Witnesses and the Kosovo Population Regarding the Possibility of their Re-traumatization during the Trial Process of Milosevic in Hague (May 2002).


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receiving psychosocial treatment prior to testifying had violent flashbacks of thetraumatic event in the posttestimony phase. They reported that only 3.7 percentof the clients had positive feelings related to testifying, with 62 percent reportedlyfeeling ‘much more traumatised’ and 28 percent ‘partially traumatised.’86

These varied reports indicate that testifying elicits mixed responses (and thatstudies adopt different methodologies, hence the discrepancies in results). Theimpact of international criminal procedures on victims of sexual crimes is largelyunknown because very few have testified, most have measures taken to protecttheir identity, a follow-up is rarely conducted with witnesses and, in the aftermathof armed conflict, many victims may prefer to keep their experiences to themselvesfor fear of ostracism, rejection and stigma.

Anecdotally, however, some positive reports have emerged. According to onepsychologist who works with rape survivors from the former Yugoslavia, somewitnesses who testified at the ICTY have felt powerful in court:

One woman said that she was very proud because she could look at the perpetratorand tell him eye to eye what he had done; she was powerful in that moment and shefelt him as powerless.87

Anecdotal reports thus suggest that victims attach some significance to theirexperience of testifying at international criminal trials, even if they have undergonea challenging experience during cross-examination and/or disappointment in thelegal process and outcome.

The Outcome of the TrialJustice is often measured by the outcome of the trial: a guilty verdict and appro-priate punishment. For victims, the punishment of offenders also constitutes animportant parameter or a measuring stick for justice. The outcome of a trial affirmsformal recognition and acknowledgment of the harm done, and it may satisfy thegoal of speaking on behalf of the dead.88

One of the biggest obstacles to international criminal justice is that there are manyperpetrators and many victims. The limitations of location, investigation and arrestimpinge on the likelihood that suspects still at large will be apprehended, evenfor national prosecutions. This means that many victims are living surrounded byoffenders, many who will never be brought to justice. For Ankica Gostajn, a BosnianCroat who was raped and tortured during the war, justice is elusive, as war criminalshave not been apprehended. In an interview with the Guardian Unlimited shestated, ‘Until these torturers are apprehended there can be no real peace in Bosnia.Why has no one brought them to justice? The world has turned a blind eye.’89

86 Ibid.87 Personal interview, Mirha Pojskic, Zenica, Bosnia and Herzegovina, 29 November 2002.88 Brandon Hamber and Richard Wilson, ‘Symbolic Closure through Memory Reparation and

Revenge in Post-Conflict Societies,’ Journal of Human Rights 1 (2002): 35–53.89 Diane Taylor, ‘In Search of Peace,’ Guardian, 22 January 2002.


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In addition to the limitations of arrest, disappointment with the severity of pun-ishment represents another barrier to justice. Lobwein has noted that one of thebiggest responses of anger that she saw from ICTY witnesses who testified to rapewas related to the lightness of punishment.90 One witness expressed her disap-pointment by saying that all her efforts to assemble evidence for the prosecutionwere in vain because the offenders received a light sentence.91 She told AgenceFrance-Presse that she now regrets having testified at the ICTY.92 Another survivorof rape told the late Elizabeth Neuffer of the Boston Globe that she was disillusionedwith the ICTY because justice seemed elusive and rapists remain at large, asking,‘Is there any point in The Hague?’93

Many victims expressed disappointment with the outcome of the Foca trial(Kunarac was sentenced to 28 years’ imprisonment, Kovac to 20 years and Vukovicto 12 years). Nezira Zolota, from the Sarajevo Association of Former Camp Inmates,declared that the punishment of the three defendants minimized the suffering ofthe victims: ‘We are shocked with the verdict. Justice has not been done, as thethree received a minimum punishment for what they have done.’94 Unfortunately,many witnesses return to their communities well before the verdict is renderedand often are left to their own interpretations, with little explanation of the trialoutcome, whether it is a guilty verdict, an acquittal or an appeal. Again, this doesnot necessarily mean that the experience of giving testimony at an internationalwar crimes trial creates long-term psychological harm, but it does reveal a largegulf between expectations and outcomes. Efforts at bridging this gap could includebetter information, education, follow-up and outreach for witnesses, and improvedcommunication between legal personnel and witnesses. These measures will goa long way toward ensuring that the experience of testifying is empowering andmeaningful for victims of sexual violence.

Another outcome problem is that rape is an identity-producing practice.95 Sub-jectivity is often contingent on narratives of injury and victimization.96 One sur-vivor said, for example, that she felt uneasy with people using the term ‘rapedwomen’ and that ‘it hurts because you are branded a raped woman and it be-comes your only identity.’97 The subjectivity of victims is further limited by theconstruction of the ‘authentic victim subject,’ or the image of a young, chaste,

90 Personal interview, Wendy Lobwein and Monika Naslund, The Hague, the Netherlands, 17 October2002.

91 ‘Bosnian Rape Victim Protests Lightness of War Crimes Sentences,’ Islam Online,http://www.islam-online.net/English/News/2001-11/04/article7.shtml (accessed 4 November2008).

92 Ibid.93 Elizabeth Neuffer, ‘Bosnia Rapes Go Unpunished,’ Boston Globe, 1 April 1998.94 Andrew Osborn, ‘Landmark Ruling for Women’s Human Rights: Mass Rape Ruled a War Crime,’

Common Dreams News Centre, 23 February 2001.95 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge,

1990).96 See, Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton

University Press, 1995).97 Jacobson and Jelincic, supra n 75.


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illiterate, tradition-bound, backward, helpless and vulnerable female victim.98

The construction of the ‘unauthentic’ victim who does not fit this stereotype,meanwhile, enables the insidious rhetorical device of denialism, serving to un-dermine the credibility of the victim. In the Foca trial, for example, the defensesought to demonstrate that the 16 witnesses who testified to rape were empowered,strong and assertive and were not psychologically traumatized by their experiencesof rape. This, they argued, cast doubt on the validity of their testimonies. Thesuggestion was that these women could not have been raped in the absence ofpsychoses.

A similar problem lies in the identity-producing practice of trauma. The Fu-rundzija trial at the ICTY, which began in 1995, demonstrates how the construc-tion of trauma can serve as a counterclaim to truth, particularly against victims ofrape.99 The evidence in this particular trial was entirely based on the testimony ofWitness A, who was interrogated by the accused while she was being raped. Thedefense basically argued that the testimony of the witness was unreliable becauseshe was suffering from false memory syndrome as a result of PTSD. This was basedon evidence of counseling and therapy that Witness A received on just one occasionfrom Medica Zenica, a women’s therapy center in Bosnia and Herzegovina. It isnoteworthy that the defense did not call into question the testimony of other wit-nesses at the trial based on the flawed memory argument. For example, it did notrequest that the personal records of another prosecution witness be disclosed, eventhough the witness ‘underwent medical treatment for about 20 days, because . . .

[of] mental problems.’100

After the trial, Witness A distanced herself from Medica Zenica and from havingreceived any therapy. She claimed that Medica had approached her and that shehad not sought psychiatric assistance. The trial chamber found that ‘WitnessA is mistaken in saying that she was not referred for treatment’ and that ‘it islikely that Witness A had PTSD.’101 In this instance, it was the court that hadthe authority, legitimacy and power to determine what the witness’ psychologicaldisposition was, regardless of how she herself may have interpreted it. KirstenCampbell states that this case is an example of ‘gendered legal memory’ becausethe Court determined and constituted legal memory as ‘evidence.’102 Throughthe ‘arbitration on memory,’ the traumatized and vulnerable victim of rape isconstructed. This stands in contrast to the victim who could not have been sexuallyviolated because she is too strong, as described above. Both creations not only

98 Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject inInternational/Post-Colonial Feminist Legal Politics,’ Harvard Human Rights Journal 15 (2002):1–37.

99 Prosecutor v. Anto Furundzija, no. IT-95-17/1-T. For a discussion of how law constitutes memoryin this particular case, see, Kirsten Campbell, ‘Legal Memories: Sexual Assault, Memory, andInternational Humanitarian Law,’ Signs: Journal of Women in Culture and Society 28 (2002):149–178.

100 See, Furundzija, transcript (15 June 1998), 552.101 Ibid.102 Campbell, supra n 99 at 151.


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undermine the credibility and reliability of victims of rape but also serve furtherto limit their agency and their subjectivity.

The experience of testifying to rape may, indeed, be challenging for victimsbecause of hostile cross-examination tactics, indifferent and insensitive judges,limited space to tell one’s story and light sentences, as well as overturned verdicts,acquittals and impunity for direct perpetrators. At the same time, trials mayprovide an ideal space for the reconstruction of the traumatic narrative, even ifwitnesses are not permitted to tell their stories in their own words (and, as MichelleStaggs Kelsall and Shanee Stepakoff have pointed out, what is painful may also beempowering).103 The trial may provide the emotional distance that enables victimsto disclose their experiences for the first time. An authoritative institutional realmof international significance may therefore constitute a positive space if victims’suffering is acknowledged, testimonies are listened to with sympathy and respectand perpetrators receive ‘appropriate’ punishment. However, despite the promiseof international criminal justice, many obstacles remain, particularly for victimstestifying to rape and sexual violence.

ConclusionDespite the concurrent popularity of trauma, memory and transitional justice stud-ies, we know little about the efficacy of international criminal justice in achievingor facilitating victim restoration and societal reconciliation in the aftermath ofarmed conflict. Various psychological studies have explored the therapeutic rela-tionship between justice, disclosure and healing, yielding mixed results about thebenefits of testifying. A victim-restoration model of justice must empower victimsto have a sense of autonomy in their lives, discover new meaning in their experi-ences, overcome isolation and ostracism and reintegrate into their communities.However, an international trial cannot be expected to achieve such complex justiceaims.

The aim of this article has not been to determine whether international rape trialsare psychologically restorative but rather to highlight some of the potentials andlimitations of international criminal justice for victims of wartime sexual violence.This avoids what W. Michael Reisman describes as ‘judicial romanticism,’ or theglorification of legal entities as the solvers of all problems.104 While it is importantto be skeptical about the law’s curative powers, this approach also avoids what MarkOsiel terms hyperbolic dismissals of the law.105 Both perspectives treat victims andwitnesses simplistically, representing them as a homogenous group of individualswith shared expectations and experiences of justice.

103 Michelle Staggs Kelsall and Shanee Stepakoff, ‘“When We Wanted to Talk about Rape”: SilencingSexual Violence at the Special Court for Sierra Leone,’ International Journal of Transitional Justice1(3) (2007): 355–374.

104 W. Michael Reisman, ‘Legal Responses to Genocide and Other Massive Violations of HumanRights,’ Law and Contemporary Problems: Accountability for International Crimes and SeriousViolations of Fundamental Human Rights 59 (1996): 75–80.

105 Mark Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, NJ: TransactionPublishers, 1997).


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In the aftermath of armed conflict, justice is elusive, variant and deeply personal.The experiences of witnesses who testify are in part formed by their subjectiveinterpretations and expectations of justice. A negative experience is more likelywhen a disjunction emerges between expectations and outcomes. This means thatadequate pretrial, trial and posttrial witness preparation is essential to ensure thatexpectations meet with reality and that witnesses do not experience unexpecteddisappointment. The International Criminal Court (ICC) has signaled some sig-nificant improvements for victims testifying to gross human rights violations, suchas increased victim participation at various stages of the judicial process, legal rep-resentation and the provision of reparations. Other improvements to internationalcriminal proceedings could include more leeway to allow victims an opportunityto tell their stories (while respecting the rights of the accused); appropriate judicialintervention during hostile cross-examination; increased communication betweencourt staff and victims; and greater outreach and interaction among internationalcourts, local courts, truth commissions and community organizations.

Staggs Kelsall and Stepakoff argue that while the primary focus of an internationalcriminal trial is on the accused, due consideration must be given to victims andwitnesses to ensure an accurate depiction of their experiences is given as part ofthe historical record of rape crimes. A reconceptualization of the importance ofvictims and witnesses, they argue, must be developed to recognize them as anintegral part of postconflict justice, giving due consideration of the psychologicaland emotional harms that they may encounter while bearing witness.106

Bearing witness must be viewed as merely one (albeit important) aspect of jus-tice. Diane Orentlicher has observed that while many have been disappointed inthe ICTY, victims agree that the Tribunal is essential for restoring ‘fundamentalnorms of human decency . . . to secure the moral integrity of future generations.’107

Full justice goes beyond criminal trials and the prosecution of perpetrators. Fulljustice involves the identification of missing bodies, the return of property, repa-rations, apologies, economic and social security, safety, stability and communityreintegration, as well as the arrest and prosecution of war criminals.108 Full justicethrough criminal trials will always be incomplete. The logic of law cannot erasethe physical and emotional scars of warfare, nor can trials bring back loved ones.Yet, as history has taught us, to do nothing to redress wartime sexual violence isitself an intolerable form of injustice. Despite its inherent limitations, internationalcriminal justice plays a significant role in acknowledging and redressing the harmand suffering of rape in the aftermath of armed conflict.

106 Staggs Kelsall and Stepakoff, supra n 103.107 Orentlicher, supra n 53 at 15.108 Stover, supra n 7.


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