The trial of Thomas Lubanga Dyilo began in late January and has heard testimony from nearly 20 witnesses to date. At the end of the trial, the Judges will be required to evaluate the credibility of the witnesses in order to consider the credibility of their testimony.
Credibility is based in part on what the witnesses say and whether it is believable, but also on the way they say it and their physical demeanor in court.
Lubanga is charged with conscripting and enlisting children under the age of 15 into armed groups, and using children to actively participate in armed conflict between July 2002 and December 2003. As such, many witnesses have been former child soldiers.
Lubanga’s defense attorneys have attacked their testimony as unreliable, highlighting inconsistencies and memory gaps. When cross-examined about details of their testimony, some former child soldiers have had difficulty answering the questions or providing consistent evidence.
The Prosecution recently filed a report written by psychologist Elisabeth Schauer, Director of Vivo International, titled “The Psychological Impact of Child Soldiering” to the Trial Chamber. The report outlines several studies on child soldiers and the resulting psychological disorders they may experience. Schauer also provides recommendations for child witnesses testifying in legal proceedings.
Schauer’s evidence was likely included by the prosecution to demonstrate the credibility of their witness’s testimony. Schauer’s findings suggest that although former child soldiers who testify may not appear able to adequately and truthfully tell their stories, in reality, they are capable of providing credible evidence.
Her report can help the Judges recognize the specific challenges child soldiers may encounter during testimony, and thus better understand and interpret their evidence.
Prevalence of child soldiers
Schauer reports that children have been widely recruited as soldiers. They are abducted, forcibly recruited, or some may join voluntarily to escape poverty, abuse, or because they are motivated by revenge. Schauer argues, however, that a child’s choice to join an armed group cannot be considered “voluntary” from a psychological point of view.
This analysis could help the Judges evaluate the testimony of witnesses who testify that they joined the UPC voluntarily.
One witness told the court, “we had nothing to do, so we went with [the soldiers].” Although at the time he did not understand what military service was, he stressed to the court “I was not enlisted by force, and I wish to confirm that.” Another witness who voluntarily joined the UPC told the court “I looked at my commander as my superior, but also as my family.”
Lubanga can be found guilty of conscripting child soldiers regardless of whether their service was forced or voluntary. However, the defense could attempt to discredit the testimony of voluntary child soldiers by attacking their character or showing they have a propensity for violence. Therefore, Schauer’s conclusions can help the prosecution dispel defense suggestions of bias or unbelievable evidence.
Exposure to trauma leads to higher risk for psychological disorders
“Children of war and child soldiers are a particularly vulnerable group and often suffer devastating long-term consequences of experienced or witnessed acts of violence,” Schauer writes.
According to Schauer, child soldiers-both boys and girls-are used as combatants, domestic servants, or to provide sexual services.
One former child soldier described how he was punished by being locked in a trench for over a week, and was fed only once a day. Another witness told the court that child soldiers were forced to kill and mutilate victims, and were beaten by multiple commanders at one time. Other witnesses described being raped, being forced to rape, and being subjected to horrifying living conditions while with the UPC.
Exposure to repeated traumatic experiences can lead to psychological and developmental problems that can last throughout the child’s lifetime and even effect generations to come.
“A single horrific experience with painful aftershocks can sear the psyche for decades,” Schauer reports.
Many studies have concluded that child soldiers are at a much higher risk of developing post traumatic stress disorder (PTSD). PTSD is characterized by symptoms such as recurrent memories or dreams of the traumatic event, unresponsiveness, avoidance of stimuli associated with the event, eating and sleeping problems, heightened risk taking, dissociation and withdrawal, and physical problems such as headaches and stomachaches.
Specific challenges when testifying in court
Schauer provides several recommendations for when ex-child combatants are asked to testify in court. She says that trauma and PTSD can interfere with the ability to testify. Recalling such traumatic moments can cause immense suffering to the witnesses; the suffering increases in relation to the severity of the trauma symptoms. Schauer writes:
“[T]raumatized survivors often cannot fully disclose their traumatic experiences. [They] can be limited in their capacity to verbally express in detail and chronology, not because they do not remember what happened, but because they enter a state of great anxiety, visible or physiologically felt by the child as trembling, sweating, heart racing, headache, [or] body pain.
“Emotions felt by the child range from anxiety, anger, disgust to helplessness during recall. The trade off here is of course that those potential child witnesses who have seen the most and the worst events, are also the ones [sic] probably most affected by their experiences.”
Schauer concludes that those witnesses suffering from PTSD will find it difficult to tell their stories. This description will help the judges determine the credibility of witnesses who speak quickly, are nervous, or otherwise comport themselves poorly when testifying. Rather than being indicative of lying, Schauer’s report shows this could be a normal reaction to discussing traumatic events.
These problems can be avoided or reduced, however, by using what Schauer calls a “therapeutic testimonial process.” She recommends a therapeutic session before the witness’s courtroom appearance, in which the child is asked about the same specific events he or she will be asked about in court. This will help the child recall events in a more clear, complete, and chronological order and can reduce the stress of narrating traumatic events.
Schauer notes that these sessions can be recorded by video to ensure that the evidence is not altered.
However, because of a November 2006 pre-trial ruling prohibiting this type of witness proofing, these sessions are forbidden in the Lubanga trial.
Based on Schauer’s report, this pre-trial decision could have severe consequences on the quality of evidence presented, as well as on the psychological wellbeing of witnesses who are forced to recount traumatic experiences in court for the first time in an unfamiliar and cold environment.
The consequences of this decision, and of the emotional difficulties faced by former child soldiers on the stand, were exemplified when the first witness recanted his testimony. Upon retaking the stand several days later, the witness said that on the first day “a lot of things went through my mind. I got angry and I wasn’t able to testify.”
Not only was this a blow to the prosecution’s case, but the court lost valuable time and resources in attempting to rectify the situation.
Witness assistance during testimony
If a child should experience a memory loss or other psychological problem during testimony, Schauer recommends that the court takes steps to help the child witness. These include asking direct, detailed questions about the context of the event, or stopping the testimony so that the witness can recover.
She also recommends having a “supportive companion” in the court, someone who can be called upon to hold hands, reassure the child, and be a general source of comfort and support to the child during these episodes.
Furthermore, “children should not be asked to give testimony directly in the presence of the accused,” she writes. She suggests that the testimony be given from another room via video link, or at least placing a sight barrier between the child and the accused.
Although the ICC has rules, procedures and decisions in place to provide such measures, none of the child soldiers who have testified have done so via video-link or with a psychological counselor in the court room. However, after the problems with the first witness, they have been allowed to testify from behind a screen, out of sight of the accused.
Finally, she suggests that child witnesses should be given verbal praise during their testimony, with phrases such as “I understand very well what you are telling me,” “this is a good description,” or “your explanations are useful.” This, Schauer writes, will help the child feel encouraged and reduce anxiety.
When the first child soldier recanted his testimony, the presiding judge warned the parties that when he returned to testify “questioning to the maximum extent possible should be non-confrontational and should not be pressurizing.”
The witness was allowed to freely narrate his own story, which is normally not allowed. The Presiding Judge also encouraged the witness’s testimony, telling him “you’ve done very well. I wish I could speak as well as you have.”
Jennifer Easterday is a Senior Researcher/Trial Monitor, UC Berkeley War Crimes Studies Center. She received her J.D. from the UC Berkeley School of Law. She is a member of the California State Bar and specializes in international human rights and international criminal law. She has written about the Special Court for Sierra Leone and is the author of “Deciding the Fate of Complementarity: A Colombian Case Study,” (Arizona Journal of International and Comparative Law, Spring 2009) and numerous reports on the trial of Charles Taylor at the Special Court for Sierra Leone. The views expressed here are personal ones of the author and do not necessarily reflect the views or opinions of the Open Society Justice Initiative or IWPR-Netherlands.