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Yugoslavia: Prosecuting Rapists In Kosovo Proves Difficult

In the second of her two-part series on rape in Kosovo, RFE/RL correspondent Alexandra Poolos examines the challenges rape victims, human rights activists, and prosecutors face when trying to prosecute sexual violence as a war crime:

Prague, 13 August 1999 (RFE/RL) -- As investigators working with the United Nations war crimes tribunal in The Hague dig deeper into Kosovo, the list of atrocities they unearth grows longer. But human rights activists say indictments against Yugoslav President Slobodan Milosevic and four other top Serbian military and civilian officials remain far from complete.

Julia Hall, a lawyer with the Human Rights Watch monitoring group, says it is a "big disappointment" that the indictment of Milosevic and his close associates includes no charges of sexual violence:

"There have been many reports out of Kosovo that other groups -- for example, our own organization Human Rights Watch which interviewed rape survivors -- other organizations have interviewed women who were sexually assaulted. One of the big questions is why did the [tribunal] not get to those women? And that question is unanswered at this point, but certainly if there is not a charge in the Milosevic indictment, the [tribunal] will say it's because [they] didn't have enough evidence and the question is why do they not have evidence? Why isn't sexual violence in the upper list of crimes for which investigators were seeking evidence right from the [start]? Secondarily, I would say that there are many indictments that have come out of the [tribunal] that have not included sexual violence charges despite overwhelming evidence."

Tribunal spokesman Paul Risley says that prosecuting sexual violence crimes does share equal priority with other war crimes. He calls the charges against Milosevic the "first step" in prosecuting war crimes in Kosovo and says he expects further charges to be filed:

"While I can't tell you specifically what we're looking at within Kosovo, our track record in Bosnia would indicate that we take very seriously the crime of rape as a crime of war and indeed as a crime against humanity. Which means in our mind the crime of rape is very closely linked with the crime of ethnic cleansing, which broadly defined is persecution and that's a crime against humanity. And certainly those are crimes we're looking at in Kosovo because Kosovo is very clearly a situation where ethnic cleansing on a massive scale took place." In the four years that the tribunal has been actively trying cases from the former Yugoslavia, six men have been found guilty of rape and sexual violence as war crimes. Last week Radomir Kovac, a suspected war criminal, was extradited to the Hague, where he will be tried solely on charges of sexual violence.

Risley says the indictment of Kovac -- who, if found guilty, faces a maximum sentence of life imprisonment -- proves that the tribunal is committed to prosecuting rape and other sexual assault crimes:

"We're certainly the first institution to develop a jurisprudence, a history of cases of bringing charges of rape against individuals charged with war crimes. I don't think there is any other legal entity in the world that can compare with us in that respect. But on the other hand, given our experience in Bosnia and our very specific and successful track record with the judges of the tribunal, we don't view the cases of Kosovo as that much different. Provided we can establish very clear and compelling evidence of the actions that took place we will be very confident in bringing charges." Martina Vandenberg of the Woman's Rights Division of Human Rights Watch says it won't be easy for prosecutors to investigate rape in Kosovo:

"I think prosecuting rape as a war crime is always difficult because unfortunately it's new. And the problem that the women talked to me about was that if justice requires identification, [then] there's a problem. Because in many cases the men who committed the rapes were masked and in many cases the women didn't recognize their rapists. And so it's going to be enormously difficult to actually identify the men who committed the rapes." But proof of rape is only half the battle. According to Hall, even when there is ample evidence, rape victims confront stereotypes when they take the witness stand. She described a case where Anto Furundzija, a Bosnian Serb paramilitary, was tried for being present while a Muslim woman was raped. Although Furundzija was found guilty by the tribunal, the case was re-opened when the defense demanded the complete medical records of the victim. After viewing the records, which including details from therapy the woman sought at a rape crisis center, the defense argued the raped woman was not a credible witness because she suffered from post-traumatic stress disorder.

Furundzija was found guilty a second time. But Hall contends that by allowing the therapy records to be submitted as evidence for the defense, the tribunal erred:

"It was the first time that they dealt with this issue and the fact is that they dealt with it poorly. And what they did was, they fell, the Courts fell victim to stereotypes of women in rape cases. My firm belief is that they erred."

Hall says that the handling of witness rights in the case set a dangerous precedent that will deter victims from coming forward to testify. She says that in turn could paralyze future rape prosecutions.

Hall argues that it is difficult enough for a raped woman to summon up the courage to seek justice. If the tribunal can't promise to protect the privacy of rape victims, Hall says women might begin to believe that silence is the best defense after all.