The Samson Effect: the Strength of Justice is in the Voices of Victims
The legend of Samson is known to many: in the biblical Book of Judges, the secret to Samson’s prodigious strength lay in his hair. When it was cut off, he was powerless and physically unremarkable. In criminal accountability, the voice and role of victims imbues the process with incredible strength, and is a cornerstone of its legitimacy. Shorn of a role, survivors would be relegated to mere spectators of a process that – properly considered – they rightfully own.
“Mass atrocities” – one should pause and consider the magnitude of that awful phrase that we hear too often. Contained within it are nightmares of depravity, cruelty, and evil that have been inflicted on countless children, women, and men. No continent has been spared. It was with this in mind, and building upon the foundations of Nuremberg and the ad hoc Tribunals for the former Yugoslavia and Rwanda, that the Rome Statue of the International Criminal Court (ICC) recognized that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and resolved “that the most serious crimes of concern to the international community as a whole must not go unpunished".
The ICC, and later the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL), gave particular rights to victims and survivors to participate in proceedings – either as parties or with party-like rights. The Special Court for Sierra Leone (SCSL) and the Special Panels for Serious Crimes (EastTimor) did not provide such a distinct role for victims in the criminal proceedings, though victims and survivors were given the opportunity to be present and participate in criminal trials as prosecution witnesses. Whatever the model – international, hybrid, or national – I have witnessed first-hand the tremendous, and sometimes transformational, impact that testifying in proceedings can have – not only for the individual, but also for the class of victims who are represented through his/her testimony, for families, and for entire communities.
I recall vividly my experience with a teenage boy in Sierra Leone who had been abducted and forcibly recruited as a child soldier at a tender age during the Civil War. He had spent several years with the Armed Forces Revolutionary Council (AFRC) as a captive child soldier, brutalized by his captors, who – amongst so many cruel acts inflicted on him – had also carved “AFRC” into the skin across his chest. Long after the war was over the scars remained: a physical reminder which kept him psychologically caged in the cell of his cruel past. In 2005, I met an understandably fearful and very timid boy. In our many interactions leading up to his testimony, he would keep his gaze down and avoid eye contact. He would speak in an unusually quiet voice, and appeared just so sad all the time.
I led his testimony in the AFRC trial before the SCSL where he gave evidence in the presence of the three accused AFRC commanders. I recall his voice getting progressively louder, and his demeanor becoming more and more confident, as he testified. At one point, he was asked to show the court the scars across his chest. He undid his shirt buttons and held his shirt open so that the judges and the men on trial – who he turned and faced without prompt – could see his scars. I remember to this day the way he faced the former commanders – somewhat defiantly – and looked them in the eye. I was struck by the transformation I saw in him afterwards as well. He was visibly emboldened as he told us that he was “happy” that he had “punished the big men” in court that day. Testifying at the SCSL was unquestionably a defining moment in this child’s life – when he visibly stepped out of his brutal past. I met him several more times during my years in Sierra Leone, and I never again saw the downcast boy I first met. This is one of the numerous experiences I have had working with survivors – which seared into my consciousness the power of the law, the injustice and cruelty that it must confront, and what it means to survivors to be afforded the opportunity to confront their perpetrators through testifying at a trial.
It is trite to say, though undeniable, that it is frequently the weakest members of society who are disproportionately impacted by atrocity crimes. Those who have not had the privilege of education, who have been excluded and marginalized even before conflict breaks out, often bear the brunt of war. Long before conflict impacted them, injustices of life have had an effect to make them feel that society views them as worthless. If consideration is not had for these individuals by the criminal investigations and prosecutions that come after atrocity crimes, such feelings of exclusion are only reinforced. Conversely, if the crimes inflicted upon them are recorded, if their accounts are taken and preserved, and if they are given the opportunity to testify, it can be as if the invisible feel that they are seen and heard – sometimes as if for the first time. An opportunity to be heard is vital for victims and survivors. I led a victims’ case in Sierra Leone concerning abuses allegedly committed by ECOMOG peacekeepers against civilians.
This class of victims and perpetrators had sadly escaped the SCSL net for whatever reason. The victims we engaged with said they had been waiting for almost 20 years for an opportunity to give their accounts of abuse to a court that would hold their perpetrators accountable. Denied this opportunity, victim after victim said they had not been able to move on with their lives. The mere act of recording statements and filing a constitutional case before the Supreme Court of Sierra Leone made them feel respected – they said that their suffering was finally being recognized, and someone was acknowledging that unacceptable acts had been inflicted on them and their families. The fact remains, however, that like many victims around the world, they await a proper forum of criminal jurisdiction to adjudicate crimes that should never have been endured. They spoke to me, but they still want their day in court. “I will sleep after I testify in Court” were the words of one of the victims said to me, which resonate with me to this day. It is for lawyers, NGOs, and the international community to collectively ensure that these victims’ very reasonable and legitimate demands for justice are realized.
“Every life matters” – this axiom cannot be allowed to be relegated to a cliché. The law has a particular duty to the weakest, most marginalized, most oppressed, and victimized. Indeed, it has a duty to every victim regardless of perceived station in life. When the law “sees” and recognizes survivors, it can have a hugely positive impact on their wellbeing, psyche, and future prospects.
Whilst the main objective of criminal justice is to establish the truth and determine whether the accused is found criminally responsible beyond reasonable doubt, it is also true that the process represents an opportunity – and a vital one – for victims. They are not appendages or case-files merely there to prove a case. Rather, they represent the beating heart of justice. Their role, their voice, and their interests are the lifeblood of any judicial system or legal model that hopes to engender public confidence in the rule of law.
In Shakespearean times, the disparity between the mighty and the weak, the rich and the poor, was eloquently expressed in King Lear:
“Through tattered clothes great vices do appear; Robes and furred gowns hide all. Plate sin with gold, And the strong lance of justice hurtless breaks.
Arm it in rags, a pigmy’s straw does pierce it.”
King Lear, Act 4, Scene 6
Thankfully the law has moved on. It had to and it still has quite a way to go. We applaud the victims who participate in accountability processes and who courageously testify – they are, after all, the real heroes of the story they must be allowed to tell.
Image Credit: (detail) Samson and Delilah (1609-10), Peter Paul Rubens, The National Gallery, London
This article was first published on Civitas Maxima’s Rapport annuel 2019