Prior to the 1990s, the use of sexual violence in conflicts was a consequence of weaponised masculinities, with little attention being paid to the enabling environment and structural causes of this type of violence. However, the nature and scope of sexual violence during the break-up of former Yugoslavia and the Rwandan Genocide exemplified that sexual violence is not a mere consequence of conflicts. Instead, sexual violence is an integral part of and a strategy during conflicts.
Consequently, rape was incorporated as a crime against humanity in the Statutes of the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The prosecution of sexual violence by the ICTY and ICTR has paved the way for addressing long-lasting impunity. Indeed, one of the main legacies of these two tribunals is the advancement of international criminal law in prosecuting sexual violence. Furthermore, the international tribunals are assumed to have provided space for survivors, primarily women, to begin the process of healing by telling their stories and seeing justice served.
However, this article questions the ability of the international trials to empower survivors. By examining the witness testimonies in the ICTY case of Kuranac et al., this article explores the representation and framing of experiences of survivors of sexual violence.
The case Kuranac et al., also known as the Foča case, is chosen for analysis for three reasons. Firstly, the Kuranac et al. case is considered a landmark case as it was the first time that an international criminal tribunal brought charges exclusively for sexual violence. Thus, this case laid the ground for the future prosecutions of sexual violence in armed conflicts. Secondly, the Kuranac et al. case was the first time that sexual enslavement was prosecuted as a crime against humanity and rape as a form of torture. Thirdly, the atrocities committed in the city of Foča in Bosnia and Herzegovina are one of the darkest chapters of the break-up of former Yugoslavia as civilians were subjected to systematic and widespread patterns of abuse. Bosnian Muslim women and girls, in particular, were detained in hotels and schools where they were victims of systematic sexual abuse and violence.
Ultimately, the article concludes that arising from the nature of legal proceedings, the narratives of sexual violence in the ICTY courtroom indirectly emphasised women’s vulnerability and lack of agency while omitting the stories of resistance and courage. Consequently, the trial reinforced gender stereotypes.
Gender Distribution before the ICTY
Women, who were victims of atrocities committed during the break-up of former Yugoslavia, voluntarily decided to be witnesses in the ICTY proceedings because they wanted to go beyond the widespread conceptualisation of them as powerless victims and be active agents of political change by holding the perpetrators accountable and telling their stories. Since the ICTY’s first trial in 1996 until 2015, 4650 witnesses testified in the ICTY proceedings. However, only 600 (13%) witnesses were women, and the majority were witnesses in cases involving sexual violence. Concerning the gender distribution of witnesses, Campbell writes:
Those gendered patterns of legal practices in which women appear to predominantly testify to sexual violence have profound implications for the speaking positions of men and women before the Tribunal, since it creates a pattern in which men appear to testify to conflict and women testify to rape.
This transcends into broader issues of narratives surrounding the break-up of former Yugoslavia: if men narrate conflicts, that emphasises their political agency and power, whereas if women narrate sexual violence, that emphasises their lack of agency and vulnerability. This pattern of gendered narration is further problematic as the ICTY is considered to have set the official historical narrative of the regionally highly-contested break-up of former Yugoslavia.
The Prosecution
The ability of survivors of sexual violence to share their experiences and stories was limited by the procedural rules in the case of Kuranac et al. Julie Mertus thoroughly explored the experiences of women who testified in this case and argues that, during the trial, survivors had to follow the script given by the lawyers and had little space for exercising their political agency as questions were structured in a way that portrayed their victimhood only. Survivors were often asked questions, such as “could you do something?” or “were you restrained?” which emphasised the powerlessness of survivors and their inability to act. Moreover, survivors could not speak about their experiences on their own terms and tell their stories without interruption. Instead, they were forced to narrowly define what happened to them in line with the rules of evidence and legal definition of rape, which only emphasises the physical act. This is exemplified by the following excerpt from the testimony during the trial (p. 1390):
Prosecution Attorney: When you say, ‘rape’ what exactly do you mean?
Witness: I don’t understand your question.
PA: You said that this – this elderly man raped you. What exactly did he do?
W: He forced me onto the bed to take my clothes off, and then he raped me, he attacked me and raped me.
PA: Does it mean he put his penis into your vagina?
W: Yes.
PA: And these other men, did they do the same thing?
W: The same thing, yes.
A similar tendency to focus on the physical act of rape, necessary for legally proving the crime, is exemplified in another witness testimony (p. 1427):
PA: In which way were you raped? What did they do?
W: [Name of the defendant] shut me up in a room with him. He wouldn’t let anybody else enter except for him. And he wouldn’t let me go the whole night. Every ten minutes he was on me and raped me.
PA: Did he rape you vaginally?
W: Yes.
PA: Anally?
W: Yes.
PA: Orally?
W: Yes.
PA: The other two persons you mentioned, when did they rape you?
W: In the morning, at dawn, early morning.
Although focusing on the physical act is needed in the legal sense, the survivors should have been granted the space in their testimonies to talk about the profound impacts that experiencing sexual violence has on their lives, their relationships with their families and communities, and their mental and spiritual health. Whenever witnesses wished to deviate from the standard legal questioning of ‘who did what and when’, they were quickly cut off by the prosecution and steered in a different direction. However, survivors, at their own initiative, managed, at times, to express their feelings beyond what is needed for legally proving the crime of rape. For instance, when asked about injuries to her body, one witness talked about injuries to her soul instead of her physical body by stating the following (p. 1274):
W: He did say something for sure, but today, eight years later, and after so many rapes, I cannot remember. I only know that he was very forceful, that he wanted to hurt me as much as possible. But he could never hurt me as much as my soul always hurt me.
Furthermore, the follow-up questions of the prosecution were mainly concerned with the reactions of the perpetrator, and the survivor was only relevant if their actions or inactions demonstrated something about the perpetrator. Questions focused on how the perpetrators reacted, what they said and how they behaved, and no attention was paid to how the survivors felt or behaved. Such structuring of the testimony is unlikely to have a healing effect as the survivors were only allowed to talk about the perpetrator instead of their feelings, fears, or acts of resilience. This is not to say that the actions of the perpetrator immediately after their crimes are irrelevant, but rather that equal space and attention should be given to the perpetrator and the survivor. Ultimately, this line of questioning and the legal procedures resulted in the prosecutors portraying survivors as vulnerable and lacking agency to act while allowing little space for the discussions of harms beyond the physical act of rape.
The Defence
In the case of Kuranac et al., defence attorneys continuously attempted to discredit the survivors and their stories, which was further facilitated by the inability of the ICTY to place adequate safeguards to protect the survivors.
The defence attorneys attempted to discredit the survivors by implying that survivors were jealous when they were not ‘chosen’ or they provoked the rape through their sexual behaviour, as exemplified in the following excerpt from the testimony (p. 1624):
Defence Attorney: Will you agree with me that jealousy is a psychological state, when a person imbued by it is ready to do certain things which people who are not imbued by jealousy would not consider doing?
W: I’m afraid I don’t understand that question at all. What are you talking about? What do you mean by jealousy?
DA: I’m referring to the fact that you said that after four or five days, [name of the defendant] rejected you. I said yesterday that in my understanding, when a man rejects a woman, it is usually a person he loves and not a person who has been raped.
W: How could I possibly be [name of the defendant]’s beloved? Only dead, not even dead, could I be [name of the defendant]’s beloved, or any one of theirs. That’s all I could say.
Furthermore, defence attorneys emphasised the inconsistencies in the survivor’s testimonies without considering that survivors of traumatic events often struggle to provide a consistent narrative. Defence attorneys would try to contrast the initial statements made by the survivors and those made during the trial or press for some particular information where it was evident that the survivor could not recall. The inability of the survivor to recall exact details and be consistent in their narrative was used by the defence lawyers to question the mental health and the capacity of survivors to be witnesses. Overall, inconsistencies served to discredit the survivor, as exemplified in the following testimony (pp. 1606-1607):
DA: That's enough. Thank you. So those are two statements, one made in 1995, the other in 1996. The other day in court you gave us a different version of events. You said, in the course of the cross-examination today, that your memory was better earlier on. So, if you have before you all three statements, will you please tell me why and how these contradictions have appeared, which, in my view, are quite considerable?
W: I have no idea.
DA: In my view, that is not an answer. Will you please answer my question?
W: I don't know what to say. I couldn't always recollect all the details correctly for everything to be exactly the same.
W: My dear witness, these are not details, nor are they minor points. These are things that you allege happened to you, and they are of such a nature that they cannot be forgotten for a very long time. So, I would appeal to you to try and refresh your memory and to tell us why you have three statements, each of which differ amongst themselves.
W: I'm saying again that I remember what I said and when.
As per the right to a fair trial, the defence attorneys have the right to question any witness brought by the prosecution. However, in cases involving sexual violence, adequate safeguards need to be placed to ensure that survivors are not re-traumatised and delegitimised. One such safeguard implemented in the Kuranac et al. case was the ‘rape shield’ rule that specifically prohibited testimony of prior sexual acts to minimise the potential blame that can be placed on the survivors involving their previous sexual life. However, further safeguards are needed, such as greater recognition of the potential fragmented statements that survivors might narrate due to the deeply disturbing experiences they endured. In what way the witnesses of sexual violence should be protected from further traumatisation during the legal proceedings while upholding the right to fair trial continues to be an unresolved matter. Thus, further inquiry and adequate evaluation are needed to ensure that perpetrators of sexual violence face justice without further harming the survivor.
Reinventing Spaces for Narration: The Women’s Court in Sarajevo
Due to the shortcomings of the ICTY and the domestic legal systems in providing justice and recognition to the survivors of sexual violence and women’s suffering during the break-up of former Yugoslavia, women’s organisations and survivors from countries of the former Yugoslavia organised the Women’s Court in Sarajevo in 2015. Judges, prosecutors and perpetrators were not present during the proceedings, only women from across the former Yugoslavia. The proceedings addressed five themes: war against the civilian population, women’s bodies as a battlefield, militarised violence and women’s resistance, prosecutions and justice, and an undeclared war (addressing socio-economic violence). In this space, women testified about private and public violence, socio-economic struggles, experiences of sexual violence, sacrifices, and daily injustices. But women also talked about their resistance and bravery, day-to-day activities that are often neglected in the grand scheme of conflict but so crucial for survival, such as crossing over the conflict zones for commercial activities or food.
The Women’s Court provided space for survivors of sexual violence and other women to tell their stories of resilience and acts of courage, to narrate their stories without interruption and not face defence attorneys. It created a space for mutual empowerment and empathy that transcended ethnic divisions, which remain deeply embedded in the social structures of the Balkans. Most importantly, survivors were not reduced to mere powerless victims by others – the prosecutors and the defence – and had the space to express the emotional and mental effects of the harm they endured, which are often neglected during trials.
Conclusion
The aim of this article is not to minimise the crucial role of the ICTY in providing justice to many victims, including survivors of sexual violence. The importance of the ICTY in advancing the jurisprudence and rules and laws of international criminal justice is indisputable. However, due regard must be paid to the framing of experiences of survivors of sexual violence. Indeed, although the ICTY has provided recognition to survivors of sexual violence, international criminal justice does not necessarily account for the consequences of this recognition. The emphasis on survivors’ vulnerabilities and the lack of agency that occurs - along with defence attorneys’ attempts to discredit the survivors - trap the survivors into representations of them being powerless victims and indirectly reinforce gendered power dynamics.
The potential negative impact of survivors of sexual violence testifying during international criminal proceedings has been a subject of considerable debate. Nevertheless, more consideration regarding balancing the right to a fair trial against possible re-victimisation of survivors is needed until the best possible solution is found. In addition, there should be more adequate safeguards in place during the criminal proceedings that would prevent the re-victimisation of survivors, similar to the ‘rape shield’ rule during the Kuranac et al. case. Providing space to survivors to tell their stories that go beyond the physical act of rape is also needed. Lastly, more reflections are needed on the part of prosecutors and judges about how the narratives and official histories produced during the trial influence survivors, and women’s role, in society.
Survivors are not passive agents and should not be represented as such. The Women’s Court in Sarajevo is an example of a feminist approach to justice that provided space to tell stories not only about injustices and harm but also about resistance and courage. In the Kuranac et al. case, there were instances of defiance of rigid proceedings and victimhood narratives as survivors managed to carve a small space to express their feelings and agency. This is best exemplified in the words of a survivor, who was only 15 years old when she was raped (pp. 2424):
PA: How did this make you feel while you were in [name of the defendant]’s House?
W: Awful, dreadful, helpless. But at the same time, I felt dignified and proud.
PA: Of what?
W: I didn’t understand the question.
PA: You said at the same time you felt dignified and proud, and what do you
mean? What made you feel this way?
W: Yes. We girls, children, were hopeless. They were men under arms and they used force. But simply I did not want to be subdued. They would often describe us as slaves, but I wouldn’t accept that.
Disclaimer: The views and opinions expressed in this blog are personal to the author(s) and do not reflect the official policy or position of any other agency, organisation, or employer.
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