How The Hague Tribunal Failed Wartime Rape Survivors – Analysis

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Kosovo Albanian survivors of wartime sexual violence who testified at Slobodan Milosevic’s trial in The Hague were verbally attacked and insulted by the former Yugoslav president, and judges didn’t act to safeguard them, court archives reveal.

By Fortesa Kabashi*

Between March and July 2002, five Kosovo Albanian women, all survivors of wartime sexual violence, testified before the International Criminal Tribunal for the Former Yugoslavia, ICTY in the proceedings against former Yugoslav President Slobodan Milosevic.

For safety reasons, their testimonies were given in closed session and so did not receive any substantial media coverage or public attention. This continued to be the case even after the ICTY lifted the seals on the redacted transcripts from these sessions, making them available to the public.

As a result, the conduct of the ICTY in relation to these witnesses has gone unexamined, allowing the narrative that survivors of wartime sexual violence have always been silent to persist.

An analysis of the testimonies of these five women – referred to in court as witnesses K14, K15, K16, K20, and K31 – reveals their secondary victimisation and the Tribunal’s failures to show them due consideration, particularly by sacrificing their interests and wellbeing in a bid to make all possible allowances for the self-representing accused, Milosevic.

These facts may help explain why survivors of wartime sexual violence stopped speaking out, and thus move the conversation away from a narrative that attributes their silence solely to stigma and shame, and towards one that questions the role of institutions, particularly legal ones, in perpetuating that silence.

The ICTY’s approach to wartime rape survivors had numerous blind spots from its earliest stages. Sexual assault did not even feature in the initial and first amended indictments of Milosevic for crimes committed during the Kosovo war. It was only the work of activists like Sevdije Ahmeti and Veprore Shehu, who identified and supported survivors, that made it possible for charges of sexual assault to be included in the second amended Kosovo indictment of Milosevic.

The testimony of Witness K31 reveals that she had initially been interviewed by investigators in relation to the killings of her father, sister, and brother, and that her testimony was initially meant to only concern these incidents. However, in April 2002, after telling her mother about having been raped by at least three Serbian soldiers, she gave a second statement to ICTY investigators detailing these events.

Explaining why she had not mentioned the rape in her first interview, K31 stated: “This happened because when I gave the first statement, I was with my family… And when they came to make a statement with my family, I didn’t say. But when they came and took me to one side, I was able to talk about it when we were in private with them.”

Her account points to how the investigators’ decision to take witness statements in groups made it harder for survivors to tell their stories and may have even completely prevented some from doing so.

Thus, after three years of grappling with her trauma on her own and struggling to recount it aloud, in July 2002, K31 took the stand at the ICTY, only to be subjected to a treatment that prosecutor Geoffrey Nice generously described as “distasteful” and “unsympathetic”.

During cross-examination, Milosevic repeatedly called her account “completely unbelievable” and insisted that “she’s not telling the truth at all”.

This prompted Nice to intercede to register with the judges his concern about the “aggressive examination without a positive case against a woman who is extremely vulnerable”.

“We know imperfectly, others know better, the damage that is done and is sometimes intended to be done to witnesses in this position by this form of cross-examination,” Nice said.

Prioritising Milosevic’s rights

The presiding judges did not share prosecutor Nice’s concerns about the treatment of witnesses and asserted that, however distasteful Milosevic’s conduct might be, he was entitled to put his case however he saw fit.

In so doing, they prioritised his right to conduct a brutal cross-examination over the survivor’s right to be treated in a humane manner while being asked to relive her trauma.

This was in keeping with what judge Richard May said was the chamber’s commitment to “making all due allowance for the difficulties facing a person defending himself in person and the fact that the accused [Milosevic] is not a professional advocate”.

Milosevic’s difficulties in defending himself in person – a decision he himself had made as a way to display his contempt for the Tribunal – took precedence over the survivors’ difficulties in participating in a process so traumatising that some survivors have said it amounts to ‘being raped all over again’.

In their efforts to make all possible allowances for Milosevic, the court not only let his accusations of lying directed towards the survivors stand, they contributed to them.

When Milosevic asked K31: “why are you lying?”, judge May intervened to rephrase the question into a supposedly more palatable “have you told us the truth or not?” The underlying assumption was largely the same: that the witness was not, in fact, telling the truth.

This approach did what court proceedings often do to rape survivors: it made K31 feel like she was the one on trial. “You’re trying to make me guilty of something, and I don’t accept what you’re insinuating,” K31 responded.

On re-examination by prosecutor Cristina Romano, she further felt compelled to assert: “You can believe me or not, whether you want to or not, but that’s what I went through. And if it wasn’t the truth that I was telling you, I wouldn’t have bothered to come here to tell you anything but the truth… Really, I insist. That’s really the truth.”

The accusations of lying were a pattern present in Milosevic’s dealings with all the witnesses. A variation on the sentence “I am sorry that this young girl was the victim of rape, of course, if it is all true” became something of a refrain that he repeated at the start of every cross-examination.

His tendency was to then question the witnesses extensively about Kosovo Liberation Army, KLA activity in their area regardless of what they had said on the matter in their statements and testimony.

During his questioning of Witness K15, a 25-year-old woman who testified to being raped by two Serbian soldiers in April 1999, Milosevic went so far as to insinuate that, if she had indeed been raped, it was likely that Albanians were responsible.

He claimed that “under the Serbs, there was no rape, but rape is a speciality of Albanian criminals that they used in 1987 and 1988” (historians will note that, although it had autonomous status within Yugoslavia at that time, Kosovo was still “under the Serbs” in 1987 and 1988).

Unlike the witnesses, Milosevic was allowed to make such allegations almost entirely unchallenged. He then focused his attention on trying to suggest that the fear the witness had attested to feeling during the war was due to either the commencement of the NATO aerial bombing campaign against Yugoslavia or fighting perpetrated by the KLA.

The KLA was, predictably, a staple of Milosevic’s line of questioning, even in cases in which witnesses point-blank declared having no knowledge of their operations or areas of activity.

In response to the prosecution’s objection to the indiscriminate employment of this strategy, the judges had ruled that “the accused should be entitled to continue with his defence relating to KLA activity… in order to justify the conduct of the Serb forces and to establish… what aggression was carried out by the KLA” so as to show that he “was acting in defence of his territory and people”.

One may see how such a line of reasoning might come into play in relation to matters of detainment, alleged harassment, or even killing. It seems to have been lost on the judges, however, that rape can never be said to have occurred in defence of anything.

Questions about the activities of the KLA were also considered permissible as a way to “test witnesses’ credibility”, according to judge May. In the case of rape survivors, Milosevic made full use of these allowances to try and cast doubts on the witnesses’ credibility in matters entirely tangential to their experience and then extend that to their testimony as a whole.

The result was a process that left the witnesses – not fully prepared by the prosecution for what awaited them in the courtroom – bewildered and frustrated. In response to such a line of questioning, the 23-year-old witness K20 — who told the court about her rape by three Serbian soldiers — at one point stated: “I will not answer this question. I came here as regards my case, what happened to me.”

K20’s experience in court further exemplifies how, in an effort to provide all the leeway to which it had determined that Milosevic was entitled, the Tribunal failed to follow not only common sense in dealing with rape survivors but also its very own procedural rules.

When Milosevic started his cross-examination of K20 by asking, “What proof do you have that this did happen to you?”, the judges did not rebuke him even though the ICTY’s own Rule 96 provides that “corroboration of the testimony of a victim of sexual violence is not required”.

Instead, he was allowed to pose a variation of this same question three times before judge May remembered that the court did not, in fact, require corroboration for a rape allegation. Once again, the interests of a survivor were overlooked in favour of protecting the rights of the man who was being tried for directing, encouraging, or supporting her rape.

Experiences such as these are the reason why psychiatrist Judith Herman has said in a research paper about how victims of violent crime experience the justice system: “If one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.”

A harrowing ordeal

The experience of K14, the youngest of the five witnesses, demonstrates how, even when a court is actually taking due steps to protect them, testifying can still be a harrowing ordeal for rape survivors.

K14 was in her mid-teens, a child, when she was raped by Serbian police officers. From the very beginning of her testimony, it was clear that she was incredibly emotionally distraught. Judge May felt it necessary to intervene on more than one occasion to point out that she was “finding it difficult to give her evidence”.

When the witness was being asked to identify pictures of the uniforms worn by the rapists, the judge told the prosecution to “take those pictures away” because “it [was] simply upsetting her”. On account of her evident distress, the judges even questioned whether continuing with the testimony was in her best interest.

Outside of this one case, however, the judges did not display much of an understanding of the complex manifestations of trauma. Even though other witnesses made references to the lingering impact of the violation on their lives – from K16’s shaking to K31’s “terrible [fear] of people with beards” – as we have seen, the judges did little to try to minimise their re-traumatisation.

The failure of the court to protect the witnesses’ identities as promised must also be noted.

On the day of K15 and K14’s testimony, prosecutor Nice pointed out to the court that “the Belgrade television station RTS [Radio-Television Serbia] had broadcast that the first two closed session witnesses giving evidence were rape victims and had revealed their ascribed court titles”, information that was only available to those present in the courtroom, the accused and his associates included.

This was confidential information that should never have been leaked. One can only guess at the effect this breach of trust may have had on the witnesses, all five of whom had only agreed to testify in closed sessions, provided their identities were protected.

It may also have contributed to other people figuring out who these witnesses were. As one of them would recount anonymously, years later, after her appearance in court, her identity was revealed at home, resulting in domestic violence and a case of attempted rape that forced her to relocate to another country.

Having been put through such torment at a Tribunal that they had expected to provide some justice for the crimes to which they had been subjected, it is no wonder that none of the five women who testified in the Milosevic trial have ever come forward to tell their stories publicly.

In return for testifying in the face of every obstacle, against even their own best interest, survivors were only met with more abuse. They faced Milosevic’s contempt and unscrupulous use of their pain in furthering his political agenda, a court that was willing to let them be revictimised and retraumatised, and in Kosovo, a society that persisted in pretending to know of no concrete instances of wartime rape even as it continued to reference its occurrence as a way to reaffirm the national trauma of the war.

The fact is, apart from the NGOs that have supported them, survivors have largely been ignored or, worse, silenced completely. The ICTY, along with many domestic institutions in Kosovo, bears a responsibility for that. Acknowledging and understanding its role in retraumatising and silencing them is an essential step in the fight to holistically support survivors of conflict-related sexual violence in Kosovo and beyond.

Fortesa Kabashi is a historian of Modern European History, currently completing her master’s in Women’s and Gender Studies in York, England.  

This article is published as a part of the Enhancing Accountability and Memorialisation Processes in the Balkans project, financed by the Matra Regional Rule of Law Programme.

Balkan Insight

The Balkan Insight (fornerkt the Balkin Investigative Reporting Network, BIRN) is a close group of editors and trainers that enables journalists in the region to produce in-depth analytical and investigative journalism on complex political, economic and social themes. BIRN emerged from the Balkan programme of the Institute for War & Peace Reporting, IWPR, in 2005. The original IWPR Balkans team was mandated to localise that programme and make it sustainable, in light of changing realities in the region and the maturity of the IWPR intervention. Since then, its work in publishing, media training and public debate activities has become synonymous with quality, reliability and impartiality. A fully-independent and local network, it is now developing as an efficient and self-sustainable regional institution to enhance the capacity for journalism that pushes for public debate on European-oriented political and economic reform.

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