Statement by Dr. Sara Sharratt, former NGO Observer at the ICTY

The aspects about victims and witnesses being discussed for the permanent court are:

1) Protection and security.
2) Participation – pretrial and during the trial.
3) Reparation.

In the ICTY we had no experience with participation and reparation, so the questions for me have been:
a) what, if any, would have been the difference had we had those additional elements?
b) and are they needed?

I was an observer at the ICTY in The Hague for five years, during which I often consulted with the judges, prosecutors, the few victim advocates available and investigators. I authored and co-edited a book that is being presented for the first time in this panel as it has just come out. In this book, I interviewed both women judges, the gender specialist and presented the work of numerous women’s international groups that focused their work on crimes committed against women. I followed trials, read indictments, evaluated closely the work of the Witness and Victims Unit. I talked to witnesses, victims, helpers, lawyers’ etc in Hague and other European countries.

To go back to my original question. Are all of the above needed? Unquestionable and undoubtedly yes. They are needed and would have made considerable difference if they had existed then in ICTY. But let me focus on some specific issues.

What do victims and witnesses need protection from?
Gender imbalance, gender insensitivity and ignorance about the centrality of gender issues at all levels of the tribunal, in all chambers, at all phases of trial, pre-trial and post-trial proceedings. In other words, in the investigator’s unit, in the prosecutor’s office, in the judge chambers, in the victim and witness unit and often also in those NGO’s involving support work at all levels and in all areas concerning the work of an international court.

Let me just describe a few instances (this is all in my book) when having such protection would have made all the difference in the world:

1) The early indictments would have mentioned rape, i.e. the word rape would have, at the very least, appeared in those indictments as a crime committed against women and perpetrators would have been charged with this crime. It would not have taken Judge Odio Benito’s public request to Judge Goldstone not to forget the crimes committed against women as in the Tadic’s deferral hearing. Rape would have appeared in the document and the crime would have been charged.

2) It would not have taken Judge McDonald’s personal perusal through all the evidence provided by the prosecutor’s office for evidence of rape, (which she found everywhere) and was not charged by the prosecutor’s because they had supposedly not found any evidence. It would not have taken Judge Goldstone’s apology to her for the behavior of his own team. It would not have required a recommendation for the amendment of the charges, which by the way was never followed and the generals whose trials are still going on, would have been charged with rape. There will be no historical record of this, no women witnesses and victims testifying about the atrocities committed against them.

3) It would not have taken Judge Odio-Benito’s confrontation of a defense attorney in the Clebici case, who in cross examination of a rape victim (who had charged the accused with multiple rapes), stated that she had only presented evidence of two rapes by the accused and she had talked about multiple rapes. Judge Odio asked him to define for her how many rapes it took for the crime to become a multiple offence. The attorney apologized and backed off.

4) It would not have taken so long and so arduous a task for the gender specialist, Ms Particia Sellers, to produce the Foca indictment where for the first time in the history of international humanitarian law, perpetrators were accused, among other crimes, of sexual slavery.

5) It would have been recognized by the Victims and Witness Unit that the victims and witnesses from the Omarska atrocities needed the support of a Clinical Psychologist during their testimony. When their testimony was delayed and they had to spend the weekend in Hague, she would not have had to struggle and beg for a bus to be provided so they could be taken for relaxation around the city.

6) When strong recommendation was made to the prosecutor’s office of the need for psychological support for the victims at all levels, the response would not have been that the tribunal was not engaged in “social work” but important legal proceedings.

7) It would not have been the case that the investigators did not ask relevant questions or raised them in insensitive ways often leaving the victim traumatized by the questions and further by not providing them with required support. It would not have been the case that the victim’s right to correct information about what testifying is like. It would have meant in many cases a realistic description of what would happen to them in court and allowed them to be prepared. It is clear that I am suggesting that the victim’s interest and those of the prosecutor’s are often in conflict and hence you can infer from this that I strongly support the victim to have a legal representative provided by the Witness and Victim Unit and definitely psychological support through the entire trial and afterwards. The Unit would have been adequately funded and had not been mostly a transportation unit offering as best physical protection while in Hague. I understand that there had been changes but they are also the result of what happened in the early stages of the tribunal.

8) It would have reflected contemporary understandings that while victims have been victimized, part of their recovery and healing lies in participating actively in their own recovery and that means participating actively in their own behalf. Victims need to be helped so that they are no longer victimized, by leaving them as powerless pawns between the prosecutors, the defense and the discretion of judges.

These are only a few of the examples of what true protection involves. It goes far beyond legalistic considerations that while necessary are far from sufficient to ensure that further traumatization and victimization does not occur.