Silencing Victims in International Courts:
Neglecting a Solemn Obligation

Nancy Paterson

"You haven't asked about what I went through at the Izbica massacre," protested Sadik Januzi, an elderly farmer from Kosovo, at the conclusion of his testimony at the trial of Slobodan Milosevic. Mr. Januzi had come to the International Criminal Tribunal for the Former Yugoslavia (ICTY or Tribunal) to affirm that Serbian forces killed over 100 men in his home village. However, in an effort to speed up the trial, rather than let Mr. Januzi tell his story, the judges limited the prosecutor to asking a handful of questions and reading two brief summaries of Mr. Januzi's written statements into the record. Mr. Milosevic was then allowed to cross-examine Mr. Januzi. When Mr. Milosevic finished, the witness was excused. "Mr. Januzi," said the judge, "we've got your statement before us. We've seen what you went through. We've heard it summarized. We've been able to read about it. And that concludes your evidence. Thank you for coming to the Tribunal to give it, and you're free to go." Such is the sad state of witness testimony from the victims of war crimes before the ICTY. It begs the questions: Are these witnesses really of such little value to this court? Is this what the United Nations had in mind when it created the Tribunal in 1993?

Frustrated in no small part by its inability to bring a diplomatic end to the conflict in Yugoslavia, the United Nations established the ICTY to bring to justice the perpetrators of the war crimes committed in Bosnia and Croatia. However, the UN did not stop there. Perhaps guided more by rhetoric than reality, and by the need to invoke the special provisions of Chapter VII, the Security Council laid out a wider mandate for the Tribunal in Resolution 808 (1993). In addition to bringing the war criminals to the dock, the Security Council announced that it believed that establishing the Tribunal would bring an end to the horrific crimes and "would contribute to the restoration and maintenance of peace."

While most criminal courts throughout the world are designed to prosecute those responsible for heinous crimes, few, if any, are charged with the mandate to "contribute to the restoration and maintenance of peace." Traditionally, criminal courts focus on providing a fair trial for the defendant to insure that his rights are protected. If, in the process, the system also benefits the victims and the community, so much the better, but the focus is always on the defendant. Most lawyers, regardless of what country they come from and what judicial system they practice in, would argue that this is the only role appropriate for a criminal court. They would reject the concept that a court can and should serve as a forum to "contribute to the restoration and maintenance of peace." A court should strictly limit itself to its traditional legal role. There is no reason now to tamper with the established system. The idea of providing justice for the victims and for the country as a whole as a means to restore and maintain peace would be considered well beyond the traditional mandate of criminal courts.

However, while the reasons for conducting defendant-focused trials are valid and this is undoubtedly a less controversial approach, the judges and other practitioners at the Tribunal cannot simply ignore the wider mandate given them by the UN Security Council. Confining the focus of a trial solely to the defendants without also considering the restorative effects the trial can have for the victims and the wider community of war survivors limits the court's ability to help restore and maintain peace. To fulfill their mandate, these international courts must put more effort into implementing a variation of the traditional criminal court model. They must realize that the modern world is demanding more of them, and therefore they must look beyond the traditional views of a court's function. Even the United States Supreme Court has confirmed this principle by noting, "For the Constitution to have vitality, this Court must be able to apply its principles to situations that may not have been foreseen at the time those principles were adopted."

Since there are no precedents for such a mandate, just how does a new international criminal court go about restoring and maintaining peace? Restoring and maintaining peace requires that all those involved come to grips with the grim reality of the conflict. This cannot be accomplished if the Tribunal is confined to simply scrutinizing the behavior of the accused…

Nancy Paterson was a prosecutor in New York City for eleven years, and worked as a trial attorney at the International Criminal Tribunal for the Former Yugoslavia (ICTY) for seven years. She is currently working as a consultant investigating fraud and corruption.