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David Chuter on the complexity of including victims in international criminal proceedings

Most of these people didn't necessarily think of themselves as victims, in the sense that we do. They may think of themselves as people living in an unstable environment. Victims don't necessarily organise themselves in the absence of some Western influence and money.

David Chuter worked for more than thirty years for the British government in the defence and security sector, as well as in international organisations and think tanks. He also spent three years in Paris as Special Adviser to the Policy Director of the French Ministry of Defence. He took early retirement in 2008, and has since been an independent author, lecturer, consultant and translator based in France, and a lecturer at Sciences Po in Paris.

David Chuter had a wide-ranging professional career, specialising in international policy issues. Among other jobs, from 1997-2001 he was responsible for support to the International Criminal Tribunal for the Former Yugoslavia, concerned with investigation, apprehension, and prosecution of suspected war criminals in the Balkans. He was also involved with the negotiations to set up the International Criminal Court, and related issues. Dr Chuter is a graduate of the British Army Higher Command and Staff Course, and the French Institut des hautes études de defense nationale. He was Visiting Fellow at the Centre for Defence Studies at the University of London (1993-94) and at the International Institute for Strategic Studies (2001-2003). He is the author of four books, including one on the investigation and prosecution of War Crimes, and many articles on security-related subjects. He lectures at Sciences Po in Paris, teaching courses on Conflict Management, and Intelligence.

Interviewed by Bogumila Soroka (2023)


The interview was conducted in the spring of 2023 and has been edited for clarity

Could you please share your experience working with victims, particularly during the ICTY, and what role they played in the tribunal's proceedings? In hindsight, what valuable lessons were learned from this experience regarding victims' participation in the proceedings?

I came into this, through the ICTY, which had something then called the Victims and Witnesses Protection Unit. This was actually run at the time by a retired senior officer from the Royal Ulster constabulary from Northern Ireland, who had been responsible, among other things, for getting witnesses to testify against terrorists in Northern Ireland. The unit's primary goal was to provide physical protection to witnesses because, in those days, we did not control the terrain in Bosnia. That was the origin of it.

In the beginning, the ICTY and to some extent, also, the ICTR in Arusha, were effectively indicting anyone they could and putting them on trial just because it was necessary to give the impression that the process was moving forward. Often there wasn't much difference between victims and witnesses. In other words, you get someone who would say: “Yes, I was in that village, and the other side attacked that village and some people were killed, and my house was destroyed.” In that sense, whether that person is a victim or witness is a bit of a philosophical question. I mean, they serve a function, and they had to be protected. Beyond that, they also had to be given some kind of indication of what they were getting into.

One of the things that we found and is still found in the use of the victims as witnesses is that victims are very often overwhelmed by the proceedings. In Rwanda, for example, many of the witnesses had never left their home village, had no idea what the court was about, and had no idea what they were supposed to do. Additionally, they came from an oral culture, where truth was something that you talked about and developed and which became a social construct. Thus famous cases in the ICTR were individuals, without explicitly claiming to be victims, who gave long and very circumstantial accounts of what happened on a particular day. Then when the judge asked: “You were, of course, present?”, and the witness would say "I wasn't there, but that's how it was told to me and that's how it happened.” Some of the early witnesses in the mid-1990s, when they came to give evidence in The Hague, once the prosecutor said, “Thank you very much”, they would stand up to leave. They were completely taken aback to discover that somebody was going to cross-examine their statement. This became actually quite a political problem for the tribunal, because human rights NGOs were complaining that the victims were being cross-examined by defence lawyers and that this was wrong and unfair, as these people should be protected from the mental trauma of having the statements cast into question. For me, and for the other people involved in the Tribunal at the time, this raised another question, which is the very status of victims, how we understand what victims are, and the way that they may view themselves and the way that others may view them.

During ICTY and ICTR the place of the victim was just to give testimony, to be a witness. But now with victim’s rights, it's so much more. Do you think that we are going in the wrong direction, or was the direction that we had wrong from the beginning?

It depends what your purpose is. One thing that I always insist on is that the motivation for trials in the first place did not come from criminal lawyers. It originated in Latin America, where trials were politically impossible. Nonetheless, trials were what the opposition in Argentina and Brazil wanted. Similarly, in South Africa, the ANC would have actually wanted to put the apartheid regime on trial, but that was not possible. What you got was a political desire to do something, mixed with a human rights law approach, which was more or less completely innocent of any understanding of criminal law. Human rights lawyers are a different breed. And for them, the process is normative. There are evil people out there. These evil people must be made to suffer, therefore we must set up a court. The responsibility of that court is to put those people we identify on trial, and then send them to prison. This is why it came as a huge shock to human rights advocates, that defendants in these trials should themselves have human rights.

Now, the standard that the ICTY adopted, I think both courts adopted, was somewhere between the Anglo-Saxon standard and the continental standard. The judges had to be pretty convinced that a person was guilty. That meant not just that bad things happened, but that an individual was beyond a reasonable doubt responsible for them. People were acquitted by the court, not because the events hadn't happened, but because the link between those people and the events could not be proved beyond a certain standard. It is surprising how difficult it was for people to understand this. They said, “What about the victims?”. Well, the victims have no standing. The victims have no status in a court. They may have status and standing in political initiatives. For example, if you decide that people who suffered should be compensated, then that's a task for a different organisation. It's a different process. It's a different logic. This is where you get into this ontological question really. Because, strictly speaking in a criminal court, the first thing that has to be proven is that the events happened. You begin with a person who says they are a victim, you first of all got to prove that something happened, you’ve then got to prove that that person was present, or in some way affected.

It seems to me that the whole notion of victim is, more than anything else, a political notion. It is designed to take power away or dispute the power of the criminal justice mechanisms in these courts. Because you can look at courts and even to some extent, truth commissions, as a struggle between two approaches. Between the bureaucratic approach of how did these things happen? Can we prove it? Who was guilty? Can we prove who's guilty? And the human rights based approach, which is "terrible things happened, therefore, victims must be compensated and perpetrators must be punished". I've always looked at the history of these institutions as fundamentally a struggle between these two ways of thinking. If you look at it as a competition, to control the process of looking into the past, and deciding what needs to be done about it, the victims therefore become a weapon in the hands of one group, which has no expertise in criminal law, which is not interested in procedure, and is not ultimately interested in questions of justice. It's interested in questions of revenge, and questions of restoring some kind of social order.

Do you think that the victim itself is just completely lost in a process? What would it take to find a way to achieve justice for them?

Well, I think you have to just really get into definitions of justice. I sometimes ask people what justice is. Often I get replies along the lines of “It’s courts and the police and laws”, but that's not true. That's a justice system. Justice itself is a concept. That's why in different cultures, they have statues of gods and goddesses of justice.

The American philosopher Michael Sandel wrote a book on justice, which is sub-titled “What's the right thing to do?.” I think that is a good way of looking at it, justice is about doing the right thing for people. Not necessarily what they want, not necessarily what they've asked for, but attempting to do what is right in the circumstances, and attempting to right a situation which is wrong.

Now, most people would argue that part of justice involves finding and punishing people who are responsible for offences against justice. I mean, if you consider justice to be an informal set of rules about how society should be managed, then there can be infractions against those rules, they may be very simple, you may simply criticise somebody, you may tell a child off of bad behaviour, or they may be significant acts that hurt other people.

Many countries have traditions of harmony. In other words, a criminal act or an antisocial act is considered to be a problem for the community. When somebody has done something, what do you do to restore harmony in that community? Very often, the person who is responsible is brought before the rest of the village or assembly of the elders and has to admit, yes, I did that. And then he's given some sort of task to carry out, some sort of reparation to make to the victim. After which the harmony of the body is restored. Victims, in that sense, are people who the community might regard with sympathy and might be compensated.

Do you think that then the core issue that we are seeing here is that we are imposing our Westernised institutionalised version of Justice on cultures that are just not used to it or do not recognise it?

What you've got is the institutionalisation of justice, such that people who commit crimes don't commit crimes against individuals, but crimes against the legal code. This is a fundamental change, as societies became more organised from, I suppose, the late Middle Ages onwards. This approach doesn't leave a conceptual space for victims.

Victims of crime, you could argue, are those who consider themselves to be victims of a crime and could reasonably be said to have a right to complain to an authority about what has happened to them and have that complaint investigated. They don't have a right, though, to decide that that person should be prosecuted. That's a decision which is out of their hands.

Now, you get into really quite complicated philosophical arguments here, about whether there's such a thing as an existential status of the victim, whether anyone can just put their hand up and say, “I'm a victim”, and therefore becomes a victim by process. It's at least arguable that what we've got, not so much in the courts, but in the media, and in the NGO system, in today's world, is a machine for the creation of victims. The media and NGOs require victims. People are pushed into proclaiming themselves as victims. It's like one of these philosophical questions: if you didn't claim to be a victim, are you in fact, a victim? Is a victim status, existential? Is it objective? Is there a list of qualifications for being a victim? Or is it because I claim to be a victim? So unless somebody is prepared to provide me with a list of criteria for being a victim, which you can check, I have to assume that it is a political status and it's a question of power. In other words, who has the power in terms of money, influence and political status, to nominate certain individuals as victims ?

Because most of these people didn't necessarily think of themselves as victims, in the sense that we do. They may think of themselves as people living in an unstable environment. Victims don't necessarily organise themselves in the absence of some Western influence and money.

Many victim organisations are simply interested in revenge and punishment of those who they believe are bad. Many others act as ways of getting financial compensation, either from the prosecutors or from other parts of the international system.

I think that there is a question about whether we have created a category of victims as Lego bricks, with whom we can play, to assemble them into different categories for different purposes. Antonio Cassese, who was one of the first judges at the ICTY, wrote an article once in which he said that it's important that people come to the courts and tell their stories, as though the courts were nothing more than a kind of town square, in which people came to entertain each other with the stories of what happened. That's not the function of a court. It may be the function of some other institution, but it's not the function of a court.

It’s also not obvious that people who've been through these traumatic experiences benefit, either. People say that the victim should have a right to be heard, but maybe they don't want to talk about it. I didn't know a single person who was eager to talk about their experiences. The idea that talking about it is therapeutic or the idea that we're doing victims a favour by saying, come and tell us about those terrible events that you went through, is not at all supported by psychology, criminology, or psychiatry. Victims often don't want to talk about these things. They want to stop being victims. They want to stop being infantilised, they want to stop being treated as cannon fodder for Western NGOs, politicians and journalists, and they want to get back to living their lives.

What is the way forward for the international community with all these complexities and nuances that you talked about?

I think you have to get back into history and say that we've arrived at a situation where, for example, courts exist, and truth and reconciliation commissions exist, not because they were objectively seen to be the solution to the problem, but because there were powerful political, legal, and other legal in the social sense of the term, communities and lawyers, who were anxious to get involved. What we've actually created is a model which is inherently incapable of addressing the problem.

I spent four years of my life on this, we did our best to make it work. There were people, I was responsible for putting away in prison in The Hague, who richly deserved to be there on an individual justice basis. There was no doubt some of the people whose cases I worked on and whose arrests I helped facilitate under any normal criminal justice system deserved to be on trial, and they were correctly found guilty. Neither I nor anyone else who worked in that system have any doubts about what we did, in that narrow context. The problem is, it is in our context.

You know, the vast majority of crimes were never investigated and punished because they couldn't be. The vast majority of actual perpetrators, including those who are known to the victims, were never investigated or punished, because the resources were not there. Many people who certainly have a case to answer were never put on trial because they couldn't be found, or because the chamber could not even be convinced that the evidence against them was strong enough.

You've got design limitations, you're trying to impose a criminal justice model, which is intended to deal with small individual cases, to a huge war or to a series of massacres. The people who tried to operate the model did their best, but the model was wrong in the first place. A lot of these questions: How do we deal with this? How do we deal with that? My answer has always been: “You should have thought of that in the first place”.

You give people, who know what they’re doing, a job - policemen, intelligence officers, and prosecutors and judges and they say, “Okay, we'll do our best.” You give people like me and governments the responsibility of helping them. We say, “Okay, we'll do our best.” But that best is all we can do. The problem is the political need to be seen to be doing something and to continue to be seen to be doing something, which is so great that what gets put forward and what gets implemented is the best we can do, but not necessarily things which are very appropriate. This can indeed, under certain circumstances do more harm than good.


About the interviewer: Bogumiła Soroka recently graduated from the Master in International Security at Sciences Po Paris, with concentrations in Intelligence and European Studies. She is currently pursuing a career at the nexus of defense and technology.


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