No Justice for Wartime Victims of Sexual Violence
The Higher Court in Belgrade War Crimes Department rendered a first instance judgment in the repeated trial of the Bijeljina II Case on November 24th, 2015, acquitting Miodrag Živković once again of the charges related to the commission of a war crime against a civilian population. The Humanitarian Law Center (HLC) emphasizes that this judgment represents part of the negative score of the national judiciary in the prosecution of cases of wartime sexual violence, and also a continuation of the practice of departing from the international standards set in such cases.
The indictment filed in this case in June 2014 by the Office of the War Crimes Prosecutor (OWCP) states that Miodrad Živković, acting in the capacity of member of a volunteer unit operating within the Republic of Srpska Army, in a group with three other members of this unit and one local, searched the house of Ramo Avdić in Bijeljina on June 14th, 1992, and confiscated the money and jewellery found there. Then, under the threat of arms, in the presence of Ramo Avdić, his wife and sons, they forced his daughter N.F. and daughter-in-law H.A. to take their clothes off, following which they raped them one after another. Another member of the unit then killed Ramo by shooting him in the mouth with a rifle. Following this, they left the house and took N.F. and H.A. with them. They took them naked and barefoot through the town and to the house of Mrs. Dosa Todorović. They robbed her of her money and jewellery and confiscated her car, with which they headed out of the town, together with N.F. and H.A. They stopped the car in the village of Ljeljenča and raped the victims again. After this, they departed in the car, leaving the victims on the road.
In regards to the reasons for the acquittal, the Presiding Judge Vinka Beraha Nikićević stated that the court found that there was no evidence showing that the accused Miodrag Živković committed the acts of “rape and sexual perversion”. The court accepted his defence that he was present at the scene of the crime, but that he carried no weapons on this occasion and that he did not wear a uniform, but a white sweatsuit.
Throughout the entire trial, the matter of the clothes the accused was wearing at the scene of the crime turned out to be the most important question for the resolution of this case. Namely, all of the victims stated that four men in uniform and one man in civilian clothes arrived at their house, and none of them mentioned a person in a white sweatsuit. Also, when the victims referred to the rape, they spoke about men in uniform.
The Trial Chamber in the previous first instance proceedings established that it was sensible that the victims could not have been specific regarding the clothes worn by the perpetrators, owing to the “dramatic nature of the situation” in which they found themselves, and that the people in uniform made a more striking impression on the victims, and that this was the reason why they mentioned them specifically. The Court of Appeals considered this reasoning unacceptable, emphasizing that it was “unrealistic” that all of the victims failed to notice that one of the perpetrators was a man in a white sweatsuit.
The judgment rendered by the Higher Court is still not public and therefore, the HLC has not had an opportunity to see its reasoning. However, on the basis of its continuous monitoring of the trial, the HLC holds that the Courts’ insistence on the victims remembering such details, 25 years after the crime, that is to say, that the Court’s considering this as an issue of key relevance for the outcome of the trial, represents an unrealistic and unreasonable demand, contrary to international practice in prosecuting acts of wartime sexual violence. The victims in this case were apparently distressed during their testimony, and they made it known to the Court that it was very difficult for them to speak about these events and that they have certain medical problems. Moreover, during the first trial, the first instance Court and the Court of Appeals accepted that the crime was committed during the night and that there was no electricity, which made the entire event even more traumatic for the victims.
Questions relating to the reliability of the memories of victims of sexual violence and their ability to reproduce details have been comprehensively discussed with leading experts in the field of Psychology and resolved in the ICTY’s practice, viz: “The Trial Chamber is of the view that survivors of such traumatic experiences [sexual violence] cannot reasonably be expected to recall the precise minutiae of events, such as exact dates or times. Neither can they reasonably be expected to recall every single element of a complicated and traumatic sequence of events […] The Trial Chamber is more concerned with the events that occurred rather than the exact date on which they happened.” (paras. 113 and 115).
The OWCP’s indictment contains some serious defects. The OWCP qualified anal and oral acts of rape as “sexual perversion”, contrary to regional practice and the practice of international criminal courts, which subsume these acts under the definition of rape as a war crime (see for instance, the judgments of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the cases of Kunarac par. 437, andFurundžija par. 174). The OWCP’s qualification was accepted by the War Crimes Departments of both the Higher and the Appeals court.
The other participants in the crime Dragan Jović, Zoran Đurđević and Alen Ristić – have been finally convicted for this crime by the judgment delivered by the Court of Appeals in Belgrade, while Danilo Spasojević was finally convicted before the court in Bijeljina.
Only two cases of wartime sexual violence (see Lekaj and Bijeljina), out of a total of seven cases in which there was evidence of this crime, have been successfully prosecuted before the national judiciary.