Ciorciari, J. D., & Heindel, A. (2016). Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands. Va. J. Int’l L., 56, 265.

Abstract

Whether they appear as witnesses, victim participants, or civil parties in mass crimes proceedings, victims can contribute vital evidence and insight bearing on the guilt or innocence of the accused. Their testimony can contribute to the truth-telling function of the process, and under some circumstances, may help them cope with trauma. However, victim testimony can also lead to re-traumatization and compromise the fairness or efficiency of the judicial process if emotional distress undermines its relevance, credibility or focus. Inherent tensions exist, because the aspects of the courtroom experience that tend to threaten victims—such as pointed questioning and cross-examination on the details of painful events—are essential for a fair trial. This article discusses the benefits and challenges of engaging victims in international and hybrid criminal trials and examines how these issues have been addressed in the courtroom. We devote particular attention to the Extraordinary Chambers in the Courts of Cambodia (ECCC), a UN-backed hybrid court established to address crimes of the Pol Pot era. The ECCC has tried to facilitate victim testimony through formal procedures and informal trial management strategies, including two important innovations in international criminal justice—special “victim impact hearings” and “statements of suffering,” both of which allow civil parties to describe harms they endured under Khmer Rouge rule before judgment. We argue that while effective trial management and innovative strategies can help reduce the tension between survivors’ interests and the rights of the accused, the ECCC’s experience reinforces the difficulty of featuring victim narratives in criminal trials.