The Trouble with Rape Trials – Views of Witnesses, Prosecutors and Judges on Prosecuting Sexualised Violence during the War in the former Yogoslavia

Tuesday, December 1, 2009
Gabriela Mischkowsk & Gorana Mlinarevic

This study was inspired by Binaifer Nowrojee, the current director of the Open Society Initiative for East Africa. In 2005, she critically reviewed the practice and results of the prosecution of sexualised violence before the International Criminal Tribunal for Rwanda (ICTR) from the perspective of Rwandan women who survived the genocide and multiple rape. Just as the ICTR, the International Criminal Tribunal for the former Yugoslavia (ICTY) did pioneer and landmark work on gender and sexualised violence crimes. However, the number of women who testify in court is relatively small and the vast majority of those who testify did so under strong protective measures. While much analysis has been done over the past years on the legal aspects of prosecuting sexualised violence before both courts, we know little about the experiences of rape witnesses: What made them testify? How do they feel about their testimonies? What are their notions of justice for sexualised crimes? How do they perceive the short- and long-term effects of testifying? Do they feel justice is being done? What are their thoughts and recommendations on encouraging more women to testify on rape?

The only study that has so far analysed the experiences of witnesses before the ICTY was conducted by Eric Stover, Director of the Human Rights Centre of the University of California in Berkely. Stover's study, however, does not differentiate in terms of gender or type of crime. In the beginning, our research intended no more than to fill this gap at least in part by focusing on the experiences of female witnesses who testified on rape or other forms of sexualised violence before the ICTY. However, in 2005, the ICTY started referring cases to the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina. The first two referral cases focused on crimes of sexualised violence and the third one contained several rape charges7. It made sense to take a closer look. This ‘closer look' became more intensive when from 2006 onward an increasing number of independent cases before the WCC included rape charges. In the end, it became imperative to integrate the WCC in our research fully as more and more witnesses we interviewed had testified either before both courts or solely before the WCC.

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