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The Importance of Evidence on Mass Trauma in International Accountability

This article explores how evidence of victim trauma was used at the Extraordinary Chambers in the Courts of Cambodia, highlighting the role of the Center for Justice and Accountability (CJA) in bringing cases against human rights abusers. It discusses the purpose and types of mental harm evidence in international courts, as well as the difficulties in making the link between mental harm and international crimes. The article also examines the victim-centered approach of the Khmer Rouge Court and the benefits of victim impact hearings. It concludes with an analysis of mental harm evidence in the Case 002/1 Judgment and references other international courts.

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The Importance of Evidence on Mass Trauma in International Accountability

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  1. The Importance of Evidence on Mass Trauma in International AccountabilityA look at how evidence of victim trauma was used at the Extraordinary Chambers in the Courts of Cambodia

  2. What is the Centerfor Justice and Accountability (CJA)? The Center for Justice and Accountability is an international human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. CJA is now the leading non-governmental organization that brings cases against individual human rights abusers in the U.S. and Spain, and represents victims directly before international proceedings like the ECCC.

  3. Purpose of Mental Harm Evidence in International Courts To prove: • Elements of a crime, such as torture • Seriousness of a crime amounting to a violation of international law • Gravity of a crime for sentencing • Victim harm or impact for reparations

  4. Types of Mental Harm Evidence in International Courts • Victim statements • Expert testimony • Medical records of victims • Publications on mental harm outcomes (peer-reviewed articles, population studies, clinical studies)

  5. Difficulties in Making the Link Between Mental Harm and International Crimes • Limited understanding of the science • Over reliance on victims to identify their own psychological harm with little support • Intervening circumstances affecting mental health of survivors • Need for victim impact hearings emphasizing “statements of suffering” by the victims

  6. The Khmer Rouge Court – A Victim Centered Approach to International Crimes Litigation The Extraordinary Chambers in the Courts of Cambodia (ECCC) or the Khmer Rouge Court is a special court in Phnom Penh created by the government of Cambodia and the United Nations to punish the senior leaders of the Khmer Rouge regime and those most responsible for the atrocities that occurred between 1975 and 1979.

  7. Rights of Survivors at the Khmer Rouge Court • First international-type court that allows survivors to participate as parties to a trial • Victims can submit their evidence to be used in investigations and trials • Victims that demonstrate physical, material, or psychological injury as a consequence of the crimes being investigated may apply to be Civil Parties and seek reparations

  8. Victim Impact Hearing – Dual Purpose Evidentiary purpose: • Establishing a nexus between victim harm and the alleged crimes • Present evidence on victim suffering to prove the gravity of the crimes • Prove reparations requested by parties are appropriate to remedy these harms

  9. Victim Impact Hearing – Dual Purpose Benefits for Transitional Justice • Opportunity for Victim Recognition • Statements on Victim Harm contribute to public education of needs for survivors (particularly mental health and social needs)

  10. Victim Impact Hearing – Victim Statements of Suffering “[Victims of the Khmer Rouge] have suffered mental suffering. As everyone might be well aware that the Khmer Rouge regime took place some 30 years ago, however, the mental state of mind of Cambodian people who came across this regime, both the average Cambodian family and myself, we still have this mental suffering.” – Sophany Bay, 4 June 2013

  11. Victim Impact Hearing – Expert Testimony on Mental Harm “We noticed the anxiety in them, the hopelessness due to the great loss under the Khmer Rouge regime; for example, the loss of their houses after they were evacuated from the city or from the village and the loss of their relatives upon returning to their village and they were not there. [Some victims] consider committing suicide because of all these factors.” - Dr. Chhim Sotheara, Expert testimony (5 June 2013)

  12. Problems Experienced During Victim Impact Hearing in Case 002/1 • Emphasis on victim to identify their own mental harm in Court • Confusion amongst the parties on terminology and science of trauma • Limited discussion on population wide trauma • Limited understanding of the foundation behind the expert conclusions • Few sources from academic and clinical studies presented to make the link between mental harm and the crimes • Only partial picture developed on the disorders affecting the victim population

  13. Mental Harm Evidence in the Case 002/1 Judgment “Having heard expert evidence, the Chamber is satisfied that the suffering inflicted on the Civil Parties as a result of the crimes committed by the Accused has contributed to the symptoms of long term psychological damage reported by a great number of them” Psychological harm evidence proved: • The seriousness of the acts amounting to violations of international law • The gravity of the crimes for sentencing, justifying a maximum sentence of life imprisonment • That the harm suffered by the victims was linked to the commission of these crimes

  14. Mental Harm Evidence in other International Courts • Psychological harm of child soldiers in Prosecutor v. Lubanga, the International Criminal Court • The impact of the Srebrenica massacre in Prosecutor v. Krstic, International Criminal Tribunal for Yugoslavia • Case of the “Las Dos Erres” Massacre v. Guatemala, the Inter-American Court of Human Rights

  15. Looking Forward – Improving how we introduce evidence of mental harm • Ensure that mental harm is identified in the investigation phase – help victims identify their psychological harms in their Victim Application Forms • Present expert testimony to contextualize victim statements and educate Court • Request victim impact hearings for each trial or trial segment • Introduce an expert report that makes the link between mental harm and the crimes • Introduce an epidemiological study on the affected population

  16. Future Opportunities for Mental Health Providers to Assist Victims in Court • Victims of the Khmer Rouge can now apply to participate in Cases 003 and 004 • ICC investigations open to victim applications • Extraordinary Chambers in National Courts now developing victim participation (e.g. Uganda) • Intermediary Organizations play a key role in assisting Victims in connecting to these institutions • Ensure that Victim attorneys and Prosecutors are aware of relevant publications related to victim population

  17. To learn more about CJA, visit our website at www.cja.org

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