and that it does not happen to anyone anywhere in the world

116 Pages·2010·0.65 MB·English

Study
“… and that it does
not happen to
The Trouble with Rape Trials –
Views of Witnesses,
anyone anywhere
Prosecutors and Judges
in the world”
on Prosecuting Sexualised
Violence during the War
in the former Yogoslavia
© medica mondiale e.V.
December 2009
“...and that it does not
happen to anyone
anywhere in the
world”
The Trouble with Rape Trials –Views
of Witnesses, Prosecutors and Judges
on Prosecuting Sexualised Violence
during the War in the former Yugoslavia
Authors: Coordinators:
GABRIELAMISCHKOWSKI, GABRIELA MISCHKOWSKI,
GORANA MLINAREVIC SARA SHARRATT Ph.D.
Editorial staff:
Selmin Çalıs¸kan (Editor-in-chief),
Britta Amorin, Lizette Dennis,
Jessica Mosbahi, Paul Christensen,
Beate Kriechel
Special thanks to Vahida Nainar
for her help with content editing
Layout:
Ute Bley
This study was supported by a grant from:
Cover pictures:
medica mondiale
© Ursula Meissner/ (left),
High School as Detention Camp, Foˇca;
© Gabriela Mischkowski/
medi ca mondiale
(right)
Table of Contents
Table of Contents
Foreword ........................................................................................................................................................5
Introduction by the Authors ..............................................................................................................................8
Acknowledgements ........................................................................................................................................12
Abbreviations ................................................................................................................................................13
Part One:
The Prosecution of Rape before the International Criminal Tribunal for the
Former Yugoslavia and the War Crimes Chamber
1. War Rape in Bosnia Herzegovina –The Commission of Experts’ Report ......................................................14
2. The International Criminal Tribunal for the Former Yugoslavia ....................................................................17
2.1 Mandate and Legal Basis...................................................................................................................17
2.2 Special Rules for Sexualised Violence Cases.......................................................................................18
2.3 The Completion Strategy of the International Criminal Tribunal for the Former Yugoslavia
and Referrals to the War Crimes Chamber...........................................................................................18
3. The Court of Bosnia and Herzegovina and the War Crimes Chamber............................................................20
3.1 The Legal System in Bosnia and Herzegovina.......................................................................................20
3.2 Establishment and Mandate of the Court of Bosnia and Herzegovina.....................................................21
3.2.1 Prosecutor’s Office of Bosnia and Herzegovina.........................................................................21
3.2.2 Cantonal and District Courts....................................................................................................22
3.2.3 Legal Basis for Prosecuting Sexualised Violence ......................................................................22
3.2.4 Plea Bargaining......................................................................................................................22
3.2.5 Provisions Concerning Sexualised Violence ..............................................................................23
3.2.6 Rape Definition.......................................................................................................................24
3.3 Gender Composition of the War Crimes Chamber and the Prosecutor's Office ........................................25
4. Prosecution of Sexualised Violence...........................................................................................................27
4.1 International Criminal Tribunal for the Former Yugoslavia: Indictments, Convictions and Acquittals...........27
4.1.1 Indictments............................................................................................................................27
4.1.2 Conviction Rate......................................................................................................................27
4.1.3 Ranks of Accused...................................................................................................................29
4.1.4 Sex of Victims........................................................................................................................30
4.1.5 Plea Agreements....................................................................................................................32
4.1.6 Acquittals...............................................................................................................................33
4.2 Women’s Roles in Successful Prosecutions of Sexualised Violence.......................................................40
4.3 Sexualised Violence Trials in Bosnia and Herzegovina ..........................................................................44
Part Two:
Views of Witnesses and Court Members
5. Witnesses’ Perspectives ..........................................................................................................................50
5.1 On Reasons for Testifying ..................................................................................................................52
5.2 On Support for Testifying ...................................................................................................................59
5.3 On Good and Bad Practices ...............................................................................................................61
6. Some Perspectives from Judges and Prosecutors at the War Crimes Chamber ............................................65
6.1 Challenges of Rape Trials ..................................................................................................................65
6.2 Some Experiences from the International Criminal Tribunal for the Former Yugoslavia .............................72
3
Table of Contents
7. Protection and Security ............................................................................................................................74
7.1 Protective Measures of the International Criminal Tribunal for the Former Yugoslavia .............................74
7.2 Protection Policy of the War Crimes Chamber ......................................................................................76
7.3 Witnesses’ Perspectives on Protection and Security ............................................................................84
8. Social Justice...........................................................................................................................................89
8.1 Witnesses’ Perspectives.....................................................................................................................89
8.2 Reparation.........................................................................................................................................90
9. Recommendations ....................................................................................................................................93
9.1 Recommendations from Witnesses.....................................................................................................93
9.2 Recommendations of medica mondiale...............................................................................................94
Bibliography...................................................................................................................................................97
Appendix – Witness Questionnaire ................................................................................................................104
Footnotes ...................................................................................................................................................110
4
Foreword
Foreword abused and were not informed about the proceedings du-
ring the trials etc.. They lived in constant fear, while the
Sexualised war crimes have been a key issue for medica majority of perpetrators still ran free and lead their lives
mondialefor the last 17 years. Since the very beginning, undisturbed. In the Lasva-Valley in Central Bosnia war cri-
the organisation has pursued two goals: putting an end minals lived, for example, next door to their victims.
to the impunity of offenders who committed war rapes There was no need to threaten witnesses directly to inti-
as well as to the trivialisation of war rapes as an inevi- midate them.
table collateral damage.
medica mondialehas had bitter experiences with the
War rapes were seldom prosecuted in the past. On the ICTY as well. The tribunal in The Hague ordered Medica
rare occasions where perpetrators were prosecuted, the Zenica to disclose the confidential medical and psycho-
aim was to reestablish military order and discipline. After social record of one of its clients who testified as a vic-
the end of World War II, international law entered into a tim witness in court. The trust of clients was betrayed
new era. Justice for rape victims played, however, only a and the entire future cooperation with courts was at
minor role. stake. Are therapy sessions possible if a client cannot
rely on the therapist-patient privilege? A relationship of
Two examples: Rapes and other forms of sexualised vio- trust is necessary for all survivors to reconstruct the pie-
lence were not prosecuted during the Nuremberg Trials. ces of their world.
Even though the French and the Sowjet prosecutor both
described rapes, sexual mutilations and forced aborti- Ever since medica mondialehas been promoting the pri-
ons and also mentioned brothels inside concentration vilege on confidentiality for physicians and psychologists
camps, none of these crimes were prosecuted. The sol- in the communication with their clients. The Internatio-
diers of the Japanese army were infamous for the rapes nal Criminal Court now recognises the physician-patient
they committed during their campaign in the Asian-Paci- privilege, though only as a discretionary provision. Legal
fic region. The Military Tribunal in Tokyo, however, dealt justice should not be obtained at the expense of the in-
only with those cases that had made the world headlines dividual process of coming to terms with traumatic ex-
and could thus not be ignored, namely the mass rapes periences.
during the invasion of the Chinese city of Nanking in
1937. The large-scale, well-organised and systematic se- While testifying in court is not part of the healing pro-
xual enslavement of Asian women in so-called ‘comfort cess per se, it should not lead to a retraumatisation or
stations’ was totally neglected. Up until today, the few undermine the trust relationship that is needed for psy-
remaining survivors are fighting for recognition, or at chological treatment. At the same time, it is crucial that
least the right to die in dignity. survivors can contribute to prosecuting the perpetrators.
The example of Holocaust-survivors has shown us, that
In 1992 Bosnian women first broke the silence around testifying in court was vital for them „to become part of
war rapes and, at least at the beginning, told every jour- the world again“. This is particularly true for offenses
nalist about their experiences to prevent it from ever hap- such as sexualised violence, as these offenses are often
pening again. Women’s groups raised public awareness trivialised and denied. This subsequently leads to the iso-
and called for an end of impunity. lation of affected women, which enhances the destruc-
tion that was triggered by the actual offense.
In consequence, two ad hocTribunals for the Former Yu-
goslavia and Rwanda were created. medica mondialehas Criticism of the witness protection was taken into ac-
always supported the efforts of the International Crimi- count and the proceedings have changed in recent years.
nal Tribunal for the Former Yugoslavia (ICTY) striving for an This study shows that many witnesses feel treated with
effective prosecution. At the same time medica mondiale respect by the ICTY. The example of Bosnian courts des-
remained conscious of the fact that its responsibility lies cribed in this study, shows that this is, however, not the
primarily with women as potential witnesses. norm everywhere. The witness protection unit of the War
Crimes Chamber in Sarajevo is dramatically understaffed
15 years ago, international prosecution was still in its in- and does not exist at all in the Cantonal and District
fancy and many mistakes were made. At the beginning Courts in Bosnia and Herzegovina. A lot depends on ar-
the protection of witnesses was, for instance, particu- bitrary and individual decisions and the individual exper-
larly neglected and the witness protection unit at the tise of prosecutors and police officers. The prosecutor’s
court was completely understaffed and underfunded. office of the War Crimes Chamber is particularly over-
medica mondialereceived many complaints. Witnesses burdened. The high workload is due to a sheer flood of
bemoaned the lack of respect towards them; they felt pending trials as well as the permanent lack of funding
5
Foreword
and staff and leads to a situation where communication nica, where Medica Zenica, the first therapy centre for
with witnesses is reduced to a minimum. raped women, was established in April 1993, did his ut-
most to support their work. He told refugee women from
Several witnesses that were interviewed for this study the countryside to seek advice from Medica Zenica, and
described in no uncertain terms, that it is essential to he explicitly allowed rape survivors to abort up to the
treat witnesses with respect. Support and protection of fourth month of their pregnancy.
witnesses should, according to them, be given a higher
priority in terms of staff and funding. This applies, parti- The Federation of Bosnia and Herzegovina, one of the
cularly, to the Cantonal and District Courts that need to two entities that compose the state of Bosnia and Her-
be improved in this respect. As numerous direct perpe- zegovina, is the only post-conflict zone in the world where
trators and rapists are prosecuted on this level and as rape survivors are explicitly recognised as war victims
many of the victims live close by, their support and pro- and can thus claim a war pension. Although the present
tection is even more important. study underlines some weaknesses in the application of
this law, it is a milestone in the social recognition and
The study reveals different shortcomings of the prose- reparation for survivors of war rapes.
cution and the actual proceedings of the trials at both
courts. It does, however, also challenge the myth of a All of this would not have been possible without the com-
particular patriarchal Bosnian society and particular sha- mitment of women’s organisations in Bosnia and Herze-
meful Muslim. In 1992/1993 media coverage shaped govina and of the rape survivors themselves, the very
the public discourse about war rapes. The first news re- women that were supposedly silenced by shame.
ports and documentaries about rapes during the war in
Bosnia stated that the Muslim society is particularly pa- The present study reveals how an important number of
triarchal. This perception still prevails. The US-American women were supported by their families when testifying
journalist and Pulitzer-Price-Winner Roy Gutman wrote, for in court. It also shows that many women are highly mo-
example: “In the conservative society in which the Mus- tivated to bear witness because they want the offenders
lims of rural Bosnia grew up, women traditionally remain to be held responsible and accountable. They will not be
chaste until marriage. Rape is a trauma with far-reaching silenced by fear or shame. Furthermore, this study de-
consequences for these victims, who have well-founded monstrates that while most witnesses want to testify in
fears of rejection and ostracism and of lives without mar- camera, they have very different reasons to do so. The
riage or children.”1 Muslim women, who had survived general conclusion is that rape survivors do not fit into
rapes, were thus pigeonholed as particularly coy and the- any stereotype and want to be perceived as individuals.
refore often described as extremely silent. More often than not courts are reluctant to admit their
own responsibility in the numerous cases where survi-
Sexualised violence certainly remains an enormous vors of sexualised violence refuse to testify. Instead of
taboo in our societies and is often associated with a so- analysing why only a fraction of all witnesses are women
cial stigma. However, the idea that the Muslim society in and why many rape survivors decline to bear witness,
Bosnia-Herzegovina is particularly prone to stigmatisa- courts turn to convenient stereotypes blaming the
tion is utterly wrong and was used at the time to draw a women themselves or society as a whole. However, not
line. The subliminal message was: Bosnian Muslim men only rape survivors but also the investigators, prosecu-
and women cannot be part of a civilised Europe, as they, tors and judges themselves struggle with sexual shame
in contrast to all other countries in (Western and Nort- and this influences their perception of the witnesses as
hern) Europe, mistreat „their“ women. well as their communication with them. An important first
step would consist of introducing compulsory training on
It is astonishing how long such a myth prevails, in spite this issue for all court members, allowing them to reflect
of all evidence to contrary. In the summer of 1992, no on their own discomfort and enabling them to deal with
journalist would have been able to write a single word the issue in a more relaxed way. An interdisciplinary ap-
about war rapes, if Bosnian women had not spoken about proach in legal training is also necessary.
these crimes directly in front of their cameras. They talked
about these crimes with openness and anger, not shame. Sexualised war violence can only be successfully prose-
While the Catholic Church in Croatia still condemns ab- cuted if investigation strategies are at the same time
ortions even if pregnancies are the result of rapes, the comprehensive and focused. At the same time courts
Muslim society, as well as their religious leaders, see need to change their attitude towards the victims. In-
things differently. As early as 1992, a fatwa declared that stead of intimidating witnesses or luring them into testi-
the Muslim society should recognise raped women as vic- fying with false promises, courts should think how they
tims and treat them with respect. The young imam of Ze- can earn the cooperation of these women.
6
Foreword
The present study shows that it is important for many great danger during and after a war. The third conclusion
women to speak about their rape in court. It is part of a was that the search for alternative and practical justice
broader reflection on the issue of “Law and Justice” in- mechanisms should be intensified and that future inter-
troduced by medica mondiale. Several questions are im- national standards should be developed on the basis of
portant in this context: To which extent do legal instituti- existing approaches used by women because they are
ons give raped women a sense of justice, thus streng- more compatible with their reality than existing legal fra-
thening them for the future? Which obstacles need to be meworks on state level.
eliminated to achieve this? In many countries and espe-
cially in post-conflict zones, women have only limited ac- Social justice is not reducible to legal justice. Trials are
cess to justice mechanisms and rape survivors do often nonetheless an important step towards justice because
not obtain justice in court. This creates the need to find they give social recognition to the suffering of victims.
justice through alternative mechanisms: What standards They (should) show the solidarity of society with survi-
or practices to find justice have women developed in dif- vors and marginalise the perpetrators and not the vic-
ferent countries? What is the contribution of symbolic tri- tims. This recognition is particularly important for victims
bunals, such as the Women’s Tribunal held in Tokyo in of sexualised violence.The international and national pro-
2000 that, strictly respecting legal proceedings, succee- secution of war crimes is, fortunately, increasing. The In-
ded where the Tokyo Trials failed and finally gave former ternational Criminal Court came into being in 2002 and
‘comfort women’ the opportunity to testify in court? How can prosecute war crimes and crimes against humanity
can local or traditional dispute resolution mechanisms, worldwide, albeit with restrictions. Sierra Leone, Cam-
such as the women’s courts of arbitration that are suc- bodia and soon Bangladesh try to come to terms with
cessfully used in cases of domestic violence in some re- their past through war crime courts. In 2010, the first
gions of India, be adapted to women’s specific needs? war crimes trial based on the new international criminal
law will open in Germany. Ignace Murwanashyaka, the
These are only some of the questions that were discus- leader of the Hutu rebel group FDLR (Forces Democrati-
sed during an international workshop organised by me- ques de Liberation du Rwanda) is currently under inve-
dica mondialein 20082 with 50 international experts in stigation for war crimes and crimes against humanity
the field of sexualised violence in armed conflicts, inclu- committed in the Democratic Republic of Congo. This pre-
ding lawyers and activists from 30 countries. The first sents the German legal system with unprecedented chal-
conclusion was that the divide between international ju- lenges in terms of witness support and protection. It is
dicial institutions or legal aspects in general and the daily therefore important to share experiences: What worked
lives of women on the ground can often not be bridged. well, what did not, what are the challenges, what can
There are two worlds with two different languages and lawyers and jurists learn from other experts, such as psy-
only limited connections. Only a small number of women chologists or former witnesses who must be recognised
will be able to participate actively in the trials. The se- as experts in their own right as is the case in the pre-
cond result of the workshop was that the liability of in- sent study.
ternational tribunals and courts is not limited to the wit-
nesses themselves but must include the activists who Dr. Monika Hauser
make contact with potential witnesses and are thus in
7
Introduction by the Authors
Introduction by the Authors the WCC, about special provisions on sexualised violence
and about indictments, convictions and acquittals in se-
This study was inspired by Binaifer Nowrojee, the current xualised violence cases. Chapter 1 gives an account on
director of the Open Society Initiative for East Africa. In the major findings of the Commission of Experts tasked
2005, she critically reviewed the practice and results of by the United Nations to identify serious breaches of in-
the prosecution of sexualised violence before the Inter- ternational humanitarian law. The Commission paid spe-
national Criminal Tribunal for Rwanda (ICTR) from the per- cial attention to rape and its report remains to date the
spective of Rwandan women who survived the genocide most comprehensive account of the pattern of rape and
and multiple rape.3 Just as the ICTR, the International sexualised violence during the war in Bosnia and Herze-
Criminal Tribunal for the former Yugoslavia (ICTY) did pio- govina 1992-95. However, distinctions made between
neer and landmark work on gender and sexualised vio- “ethnic cleansing” rape and “opportunistic” rape carries
lence crimes. However, the number of women who testify problems which are discussed at the end of the chapter.
in court is relatively small and the vast majority of those
who testify did so under strong protective measures. Chapters 2 and 3 outline the mandate and legal basis of
While much analysis has been done over the past years ICTY and WCC. For the WCC this required a more exten-
on the legal aspects of prosecuting sexualised violence sive discussion of the political and legal system of Bos-
before both courts4, we know little about the experiences nia and Herzegovina, as the country is – politically and
of rape witnesses: What made them testify? How do they administratively – still divided in two major entities, the
feel about their testimonies? What are their notions of ju- Federation of Bosnia and Herzegovina and the Republika
stice for sexualised crimes? How do they perceive the Srpska. Chapter 3 discussed several issues of major
short- and long-term effects of testifying? Do they feel concern in respect to the prosecution of sexualised vio-
justice is being done? What are their thoughts and re- lence like the definition of rape, the special evidentiary
commendations on encouraging more women to testify rules for rape and sexualised violence referring to prior
on rape? sexual conduct, consent and corroboration. In addition,
the political division of the country entails a general legal
The only study that has so far analysed the experiences uncertainty. 3 criminal codes are in effect that differ si-
of witnesses before the ICTY was conducted by Eric Sto- gnificantly with respect to definitions of crimes commit-
ver, Director of the Human Rights Centre of the University ted during the war.
of California in Berkely.5 Stover’s study, however, does
not differentiate in terms of gender or type of crime. In Chapter 4 gives a detailed overview of indictments, trials,
the beginning, our research intended no more than to fill convictions and acquittals with regard to sexualised vio-
this gap at least in part by focusing on the experiences lence cases before the ICTY and includes a discussion of
of female witnesses who testified on rape or other forms shortcomings in prosecuting sexualised violence before
of sexualised violence before the ICTY. However, in both courts. Neither the ICTY nor the WCC keep any sta-
2005, the ICTY started referring cases to the War Cri- tistics on cases that differentiate by gender or nature of
mes Chamber (WCC) of the Court of Bosnia and Herze- the crime. Therefore, the data in this chapter are based
govina. The first two referral cases6focused on crimes of solely on our own research. After some start-up difficul-
sexualised violence and the third one contained several ties several cases mainly against direct perpetrators
rape charges7. It made sense to take a closer look. This were successfully prosecuted at the ICTY. However, the
‘closer look’ became more intensive when from 2006 on- Focˇa cases remained the only one which attempted to
ward an increasing number of independent cases before display the complex gendered pattern of sexualised vio-
the WCC included rape charges. In the end, it became lence in this war. There is also, among others, a troubling
imperative to integrate the WCC in our research fully as tendency of first instance acquittals of rape charges in
more and more witnesses we interviewed had testified leadership cases.
either before both courts or solely before the WCC.
In respect to the WCC we identified that about 37% of all
completed cases (up to June 2009) included charges of
Overview of Themes and Methodology rape and sexualised violence. While the conviction rate
with over 80% is relatively high several cases are dis-
Part One: The Prosecution of Rape before the Interna- cussed in which rape charges were dismissed because
tional Criminal Tribunal for the Former Yugoslavia and the Panel found the witnesses not credible or testimo-
the War Crimes Chambers nies not reliable. Witness’ credibility and evidentiary is-
sues in rape cases play a larger role at the WCC as was
The following report has 2 major parts. Part One informs the case at the ICTY. This is also discussed further down
about the mandate and legal basis of both the ICTY and in Chapter 6.
8
Introduction by the Authors
Part Two: Views of Witnesses and Court Members in closed session. The Chapter shows that over 90% of
women who testified on sexualised violence at the WCC
Part Two of the report is based on interviews conducted did so under protective measures.
with former witnesses who testified on rape before the
ICTY and/or the WCC, as well as on interviews and con- Chapter 7 concludes with a discussion of how the wit-
versations with officials from both courts, namely judges nesses interviewed perceived the protection policies of
and prosecutors. In Chapter 5 former female witnesses the court. In general, there is a profound confusion
talk about their motives to testify, their experiences in around the different forms and meanings of protective
court, the support they received, their notions of justice measures. It shows that more information is needed
and what they identify as good or bad practices. Many from either the office of the prosecutor or from indepen-
have a very clear opinion on their role within the justice dent sources. While there are many examples of witnes-
process and on how they want to be treated. The Chap- ses who want to testify in open court and under full
ter shows that while each woman manages the challen- name, the vast majority of the women we interviewed
ges of testifying differently they all ask to be respected clearly opted for high protective measures, if not the hig-
in both, their pains and their will to move on. The Chap- hest possible. However, the reasons they gave varied,
ter closes with a list of practices that the witnesses in- and shame, often suggested as a major reason, ranked
terviewed identified as either good or bad. lowest.
Chapter 6 explores some of the issues judges and pro- Legal justice is just a small part of social justice. The
secutors from the WCC identified as specifically difficult lack of the latter seriously hampers the willingness of
in rape cases. Two major challenges emerged from the women to testify. Chapter 8 shows that most witness par-
interviews. The first referred to the interaction with rape ticipants of the study live in insecure situations in terms
witnesses. This included issues relating to witness’ of economy, housing and health. The vast majority strug-
trauma, communication with witnesses, getting them to gles with physical and psychological consequences of
cooperate, establishing a relationship of trust with wit- wartime violence and the lack of support is a continued
nesses. The second major challenge concerned the pro- source of further distress and humiliation. The chapter
blem of evidence in rape cases. A significant lack and discusses in particular the limited access rape survivors
need of training in trauma- and gender-sensitive exami- have to reparation. While all political entities have regu-
nation of rape survivors could be identified. The Chapter lations that include rape survivors there is no binding law
also shows that there is a tendency to assign the diffi- for the whole state. Thus, only in the Federation of Bos-
culties experienced to stereotypes of either “traditional” nia and Herzegovina proof of at least 60% physical dis-
Bosnia or “shameful” rape survivors. Such stereotypes ability is not needed for rape survivors to be granted the
can hinder the search for solutions that lie within the status of a civilian victim of war and to be entitled for a
scope of one’s own practice and profession. However, pension. Even so, the pensions are small and the appli-
judges, prosecutors and all other members of the court cation procedure is open for abuse by those in charge.
can only do their job well if equipped with necessary re- Health care and psychological support is non-existent
sources. and left completely to the limited resources of women’s
organisations and NGOs.
Chapter 7 deals specifically with issues of protection,
safety and security. Our research shows that the vast ma- The last chapter finally compiles 2 sets of recommenda-
jority of rape survivors not only testified under pseud- tions. The first set comes from the witnesses interviewed
onym but also in hearing closed to public. Again, the data and is addressed to courts, NGOs and other female sur-
had to be retrieved from judgements, as the courts do vivors of wartime rape. The second part of the chapter
not keep any data in this respect. The first 2 sub-chap- compiles recommendations of medica mondialebased
ters give an overview of the protection policy of both on the findings of this research.
courts. The focus lies on the WCC, as the issue is parti-
cularly complicated here. The chapter shows that the Methodology
legal provisions themselves are a source of confusion in
respect to different categories of protected witnesses. The research consisted of interviews, group discussions,
This leads, as our discussion shows, to misinterpretati- field observations, trial monitoring and a statistical ana-
ons and in some cases to the dismissal of rape testi- lysis of indictments and judgements from both the ICTY
mony. At the same time, there is an observed tendency and the WCC. The field research lasted from summer
to view testimony in closed session as less credible as 2006 until spring 2009 with 130 interviews conducted
testimony in open session, which again has serious im- with former witnesses, members of both courts, legal ex-
plications for rape testimonies as most of them are given perts, psychologists and members of local women’s or-
9
Introduction by the Authors
ganisations, NGOs and international organisations like We kept a strict policy of confidentiality. Most witnesses
OSCE and OHCHR. we interviewed had testified under pseudonyms to pro-
tect their identity. In addition, no details about the crime
Relevant for this report are interviews with former wit- itself were asked. Evidentiary issues of the trials they te-
nesses who testified on rape before both courts and with stified in were also not discussed in order not to com-
members of the WCC and the Prosecutor's office in Sa- promise their status as protected witnesses. In most
rajevo. Structured and semi-structured interviews of 49 cases, we were permitted to record the interviews. The
women were conducted in Bosnia and Herzegovina. 45 of transcripts were anonymised and so are all quotes from
them had personally testified before either the ICTY or participants. The same applies to the interviews with
the WCC on being raped during war; several of them in court members and prosecutors.
both courts or, in addition, in a lower cantonal or district
court in Bosnia and Herzegovina. In addition, 3 group dis- Limitations
cussions were held with a group of 8 to 10 former wit-
nesses.8Semi-structured interviews were also held with According to our own research, we found that approxi-
7 judges of the War Crimes Chamber and 7 prosecutors mately 60 women have so far testified before the ICTY
from office of the prosecutor in Sarajevo. In addition, a and about 90 before the WCC on sexualised violence. An
round table discussion was conducted with 7 judges, one unknown number of those who testified many years ago
witness protection officer and 2 legal advisors at the before the ICTY lives today in another country, either in
WCC. Europe, the US or in Australia. They were out of reach for
this study. In addition, journalists and international re-
The research for this report was initiated, conceived and searchers have been ‘chasing’ women who survived rape
coordinated by Gabriela Mischkowski and Sara Sharratt. for interviews over the past 15 years. Many women in
They developed the proposal to the Open Society Insti- Bosnia and Herzegovina were tired of giving interviews
tute & Soros Foundations Network and took responsibi- and local women groups or victim organisations suppor-
lity for data gathering, data analysis and the overall su- ting them have become, in part, very protective. Never-
pervision of the project. They conducted all semi-struc- theless, many groups or counselling centres found this
tured interviews with witnesses, NGO activists, experts, project important and were willing to facilitate first con-
and most interviews with court members and prosecu- tacts. As most witnesses testified under some kind of
tors. Some of the latter were also conducted by mem- protective measures with their identities concealed from
bers of a local support team: Gorana Mlinarevic as local the public this was the only way. It was a long and slow
researcher, Slobodanka Dekic as assistant, and Ivana process stretching over more than 2 years.
Draco who monitored trials before the WCC from May to
December 2008 following a monitoring schedule develo- The restrictions in finding witnesses and establishing
ped by the 2 coordinators. The local researchers func tio- contact with them did not permit to ensure a represen-
ned also as interpreters during interviews or as transla- tative sample. We had no other choice than to move from
tors of transcripts. In addition, 2 local females with ex- witness to witness which was often rewarded with the fa-
tensive contacts and a trust relationship with many rape cilitation of new contacts. Therefore, criteria like time of
survivors conducted, after training, a series of interviews testimony in court, ‘ethnic’ belonging, kind of charges,
with former witnesses following a structured question- circumstances of crime etc. could not be taken into ac-
naire with both closed and open-ended questions. For count.
reasons of confidentiality the names of these 2 women
remain concealed. A structured questionnaire with clo- Neither ICTY nor WCC keep comprehensive data on trials,
sed and open-ended questions was also developed for charges, and witnesses. Only the Victim and Witness sec-
members of the ICTY and the WCC. The questionnaire tion of the ICTY provides useful gender segregated data.
was distributed through the respective registry and the For the most part, we therefore had to compile our own
prosecutor’s offices. However, due to low backflow the data based only on information that is publicly available
analysis remains limited. like indictments, judgements and – for the ICTY only – trial
transcripts. This approach is limited, as those documents
In addition to the interviews, all published indictments can be rather incomplete. In particular, WCC judgements
and judgements of both ICTY and WCC were reviewed often lack information in regard to number of witnesses
and analysed in respect to sexualised violence charges, and kind of protection they received. This information was
convictions and acquittals, protective measures of wit- supplemented, if possible, through other sources like trial
nesses who testified on rape. monitoring or information by court members.
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