Investigating Wartime Sexual Violence
A training course for police investigators in Bosnia and Herzegovina Course Objectives and Acknowledgements
The goal of this course is to provide police investigators with the necessary specialized knowledge and skills to effectively investigate conflict-related sexual violence crimes in Bosnia and Herzegovina. A combination of reading material, presentations, and practical exercises aims to impart a holistic understanding of the legal framework applicable to these crimes and to explain how to plan and implement investigations that maximize the quality of evidence while accommodating in the best possible way the needs of victims and witnesses.
The content of the training modules has been developed by leading international and local experts on conflict- related sexual violence under the behest of the Institute for International Criminal Investigations and the OSCE Mission to Bosnia and Herzegovina, in close collaboration with the Department for Police Education - Police Academy of MoI of Republic Srpska and the Police Academy of MoI of Federation of Bosnia and Herzegovina.
The development of this course was funded by the government of the United Kingdom. The OSCE Mission to Bosnia and Herzegovina would like to acknowledge the Department for Police Education - Police Academy of MoI of Republic of Srpska and Police Academy of MoI of Federation of Bosnia and Herzegovina for their valued partnership and commitment to continuous professional development. MODULE 1: International Criminal Law
MODULE 2: Legal Framework in Bosnia and Herzegovina
MODULE 3: Wartime Sexual Violence and Investigation Planning
MODULE 4: Collection of Evidence and Forensic Aids to Sexual Violence Investigations
MODULE 5: Witness Trauma and Psychosocial Support
MODULE 6: Witness Management, Safety and Protection
MODULE 7: Interviewing Skills
Module 1
Module 1
MODUL 1: Međunarodno krivično pravo
MODUL 2: Pravni okvir u Bosni i Hercegovini
MODUL 3: Seksualno nasilje u ratu kao osnov u planiranju istrage
MODUL 4: Prikupljanje dokaza i forenzika u istragama seksualnog nasilja u ratu MODULEMODUL 5:1: Trauma svjedoka i psiho-socijalna podrška
MODUL 6: Postupanje sa svjedocima, International bezbjednost Criminal i zaštita Law svjedoka
MODUL 7: Vještine vođenja informativnih razgovora
International Criminal Law 1
MODULE 1
Crimes of Sexual and Gender-Based Violence under International Law...... 3 Introduction...... 3 International Criminal Law...... 4 Genocide...... 4 Crimes Against Humanity...... 5 Elements of Crimes Against Humanity under International Law...... 6 War Crimes...... 6 Essential Principles of International Humanitarian Law...... 6 Violations of International Humanitarian Law...... 7 Elements Common to all War Crimes...... 8 Individual War Crimes...... 9 The Prohibition of Conflict-Related Sexual Violence Under International Law...... 9 International Humanitarian Law...... 9 International Criminal Law...... 10 Special Evidentiary and Procedural Rules for Sexual Violence Cases...... 11 International Jurisprudence on Rape...... 12 International Jurisprudence on Enslavement and Sexual Slavery...... 15 International Jurisprudence on Torture and Other Acts of Sexual Violence...... 16 International Jurisprudence on Rape and Sexual Violence as the Crime Against Humanity of Persecution...... 18 Modes of Liability Commission and Participation...... 20 Forms of Individual Criminal Responsibility...... 20
Module 1
Crimes of Sexual and Gender-Based Violence under International Law1
INTRODUCTION
The concept of a war crime is broad and encompasses many different acts committed during an armed conflict. It is synonymous in many people’s minds with ethnic cleansing, mass killings, sexual violence, recruitment of child soldiers, deliberately targeting civilian objects such as cities and towns, and similar atrocities. It is important at the outset to understand the terminology associated with war crimes. Among the equivalent and interchangeable expressions – the “Laws of War”, the “Law of Armed Conflict”, and “International Humanitarian Law”, the first is the oldest. War crimes come under the general umbrella of International Humanitarian Law (IHL), and may be defined as the branch of international law limiting the use of violence in armed conflicts. The fundamental aim of IHL is to establish limits to the means and methods of armed conflict, and to protect non-combatants, whether they are wounded, sick or captured soldiers, or civilians. War crimes may be defined as a serious violation of the rules or principles of IHL – for which persons may be held individually responsible. Individual criminal responsibility is a fundamental principle of IHL. It is the reason we need to conduct international criminal investigations i.e. to establish the facts and gather relevant evidence in order to prosecute perpetrators. The most effective way to enforce IHL is through national courts or tribunals. Unfortunately, such mechanisms are not always functioning or in place, especially in conflict and post- conflict environments. For this reason, the international community has on occasion acted to create machinery to repress breaches of IHL. Two leading examples are the Nuremberg War Crimes Trials (under which the Nazi leadership was tried), and the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In more recent years, the adoption of the Rome Statute and the establishment of the International Criminal Court (ICC), specifically tasked with adjudicating on some breaches of IHL, mark a significant advancement in the implementation process. The challenge is to investigate and prosecute these crimes. This is where the role of international criminal investigators is crucial, as ultimately the decision to prosecute and the outcome of the process will be dependent on the evidence gathered.
1 The content of this module’s narrative is drawn from two recent publications by the OSCE Mission to Bosnia-Herzegovina: the Investigation Manual for War Crimes, Crimes Against Humanity and Genocide in Bosnia and Herzegovina and the report Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges. The material has been modified for the purpose of this module.
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INTERNATIONAL CRIMINAL LAW
The term international criminal law is used to describe certain international crimes. These are breaches of international rules that entail individual criminal responsibility. While most agree that a recognizable body of international criminal law exists, it is difficult to define as it may include a myriad of acts under various treaties or customary law. It includes war crimes, crimes against humanity, genocide and aggression. Unlike war crimes, genocide and crimes against humanity do not need to be committed in the context of or be linked to an armed conflict.
GENOCIDE
Genocide was described by the UN General Assembly as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings”.2 The Genocide Convention, ratified by BiH, Croatia and Serbia3, obligates states to prevent and punish the crime. The core provisions of the Convention, including the definition of the crime, also exist as customary international law, which is also reflected in the jurisprudence of the Court of BiH4. The Statutes of the ICTY and the ICTR copy the definition of the crime verbatim from the Genocide Convention.5
ICTY Statute Article 4: Genocide
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.
The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide
2 G.A. RES. 96/1 U.N. DOC. A/RES/96/1 (Dec. 11, 1946). 3 The Genocide Convention was ratified by the SFRY and therefore BiH, Croatia and Serbia are also parties to this convention. United Nations, U.N. Treaty Collection, available at: http://treaties.un.org/Pages/ View Details.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en (accessed 6/13/2011). 4 See, e.g., ICJ Advisory Opinion on Reservations to the Genocide Convention, and UN Secretary-General’s Report on the establishment of the ICTY, 3 May 1993, S/25704.
5 The Rome Statute applies a somewhat different definition. See below, sections 6.3.7 and 6.3.2.
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In light of this definition, key considerations when investigating and prosecuting possible cases of genocide include: • However serious the crime, it is very narrowly defined, and many mass killings cannot per se be considered genocide. • Genocide is a crime against a group, even if it involves harming individuals. • Genocide requires that the perpetrator have a very specific mental state while committing the crime: a specific intent to destroy a protected group. It is a jus cogens crime6 and its prohibition is an erga omnes obligation that all states owe to the international community.7
CRIMES AGAINST HUMANITY
Genocide and war crimes have been codified in treaties, whereas crimes against humanity have evolved under customary international law.8 Crimes against humanity were first charged under the Nuremberg Tribunal Charter.9 The definition of crimes against humanity was set out in the Charter and the Nuremburg judgment. The UN General Assembly endorsed the concept of crimes against humanity in 1946.10 The content of crimes against humanity has evolved since the Second World War through the jurisprudence of the ICTY, ICTR and ICC. The statutes of the international tribunals generally reflect crimes against humanity as they existed under customary international law. However, there are some differences in the contextual requirements for crimes against humanity in the statutes of the various international tribunals, which will be discussed in more detail below.
Article 5/3 of the ICTY/R Statute
Crimes against Humanity
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (f) torture; (b) extermination; (g) rape; (c) enslavement; (h) persecutions on political, racial (d) deportation; and religious grounds; (e) imprisonment; (i) other inhumane acts.
6 Case concerning Armed Activities on the Territory of the Congo (DRC v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, ICJ Judgment of 3 Feb. 2006, para. 64. 7 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion (1951) ICJ Rep 15, 23. 8 See Robert Cryer et al., An introduction to International Criminal Law and Procedure, 230 – 233 (2010); or Commentary on the Rome Statute of the Criminal Court, 121 – 122 (Otto Triffterer ed., 1999) for a background to the development of crimes against humanity. 9 Yale Law School, Charter of the International Military Tribunal, Constitution, available at: http://avalon.law.yale.edu/imt/imtconst.asp (accessed 24 June 2011). 10 Affirmationof the Principles of International Law Recognized by the Charter of the Nuremburg Tribunal, G.A. Res. 95(I), UN Doc A/64/Add.1 (Dec. 11, 1946).
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Elements of Crimes Against Humanity under International Law
A crime against humanity is committed when: • The accused commits a prohibited act, • That is part of an “attack”: o which is “widespread or systematic” and o “directed against any civilian population”; • And when there is a link or “nexus” between the acts of the accused and the attack. The ICTY Statute requires that the attack be committed in the context of an armed conflict,11 and the ICTR Statute requires that the attack have a discriminatory element.12 Neither of these elements are required by the definition of crimes against humanity under customary international law. At the ICC neither of these additional elements is required.13
WAR CRIMES
The laws prohibiting war crimes are a subset of International Humanitarian Law (IHL), also known as the law of war or the law of armed conflict.14 IHL is a set of rules that seeks to limit the effects of armed conflict, protect persons who are not participating in hostilities and restrict the means and methods of warfare. The main sources of IHL are treaties and customary international law.
ESSENTIAL PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW The essential principles of IHL include: (1) Distinction: The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole, nor individual civilians may be attacked. Attacks may be directed solely against military objectives (including combatants). (2) Proportionality: Attacks are prohibited if they cause civilian damage that is excessive or disproportionate when compared with the direct and concrete military advantage that is to be gained. In attacking military objectives,
11 However, the ICTY has held that under customary international law, a connection with an armed conflict is not required.Duško Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 Oct. 1995, para. 141, See also Kaing Guek Eav, Case No. 001/18-07-2007/ECCC/TC, Trial Judgment, 26 July 2010, para. 2I8. 12 See infra, section 7.2.2.1.7. International Criminal Law & Practice Training Materials ICLS
13 It should be noted that while the attack need not be discriminatory, the crime of persecution requires that the act amounting to persecution be carried out on discriminatory grounds. 14 See the IHL section on the ICRC website (www.icrc.org) for more on IHL. The ICRC commentaries on the Geneva Conventions and APs are particularly useful sources when interpretation of the provisions of those treaties is required; these are available at: www.icrc.org/ihl.nsf.
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combatants must take measures to avoid or minimize collateral civilian damage and refrain from causing excessive civilian damage. There is a prohibition on employing methods and means of warfare of a nature to cause superfluous injury and unnecessary suffering. (3) Protection: Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be treated humanely and without adverse distinction. They must be protected against all acts of violence or reprisal.
VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW Not all violations of IHL constitute war crimes. To be considered a war crime, the violation must entail, under customary or treaty law, the individual criminal responsibility of the person breaching the rule. War crimes are serious violations of IHL committed in international and non-international armed conflicts that give rise to individual criminal responsibility. Various provisions under IHL (customary law and treaty law) prohibit the commission of war crimes: • Grave breaches of the Geneva Conventions and of Additional Protocol I (AP I) that apply in international armed conflict; • Common Article 3 of the Geneva Conventions that apply in all conflicts; and • Other serious violations of international humanitarian law that apply in either international or internal armed conflicts. The table below sets out the main areas of protection provided by the Geneva Conventions and their additional protocols.
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GENEVA Who is protected When they are Protections CONVENTIONS protected AND ADDITIONAL PROTOCOLS TREATY
Geneva Conventions I & Civilians and military International armed Establishes minimum II (GC I, II) personnel who are conflict. standards of treatment wounded, sick or for the dead, injured, shipwrecked. sick or shipwrecked. It obliges parties to protect and permit medical, religious and humanitarian personnel to assist the injured.
Geneva Convention III Members of the International armed Obliges the capturing (GC III) armed forces who conflict. party to ensure become prisoners the observance of war. of fundamental protections, rights and freedoms.
Geneva Convention IV Civilians in occupied International armed A broad range of (GC IV) areas or areas affected conflict. protections that by armed conflict. guarantee fundamental protections, rights and freedoms.
Article 3 common to Civilians and military Non-international Prohibits: murder, Geneva Conventions personnel who are not armed conflict and torture, cruel I – IV actively taking part in international armed treatment, hostage hostilities. conflict. taking, humiliating and degrading treatment, extra-judicial punishments and executions. It imposes minimum protections of due process and an affirmative duty to collect and care for the wounded and sick.
ELEMENTS COMMON TO ALL WAR CRIMES War crimes are distinguishable from other crimes by additional elements that characterize their nature, called chapeau elements. These must be proven in addition to the elements of the underlying crime. The chapeau elements of a war crime are: • The criminal act is in violation of international law; • The criminal act occurred during armed conflict, war or occupation (although a war crime against prisoners of war can occur during peace time, up until the repatriation of the prisoners of war);
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• There is sufficient nexus between the act of the perpetrator and the armed conflict, war or occupation; and • The accused must have ordered or perpetrated the act. For an act to be tried as a war crime, the prosecution must present sufficient evidence of these elements.
INDIVIDUAL WAR CRIMES In addition to the common elements set out above, the elements of the individual war crimes set out below also have to be proved. These crimes are: • Killings; • Torture; • Inhuman (cruel) treatment; • Causing immense suffering or serious violation of bodily integrity or health; • Destruction of cultural, historical and religious monuments; • Attack on civilian population, settlement, individual civilians or persons unable to fight, which results in death, grave bodily injuries or serious damaging of people’s health; • Rape and sexual violence; • Taking of hostages; • Pillaging; • Unlawful detention; • Forcible labour; • Destruction of objects indispensable for the survival of the civilian population; • Unlawful detention of civilians; and • Application of means of intimidation and terror.
THE PROHIBITION OF CONFLICT-RELATED SEXUAL VIOLENCE UNDER INTERNATIONAL LAW
INTERNATIONAL HUMANITARIAN LAW Rape and other forms of sexual violence have been prohibited under the laws of war since they were first articulated.15 In modern times, explicit and implicit prohibitions against sexual violence have been incorporated into each of the principle international humanitarian law instruments. The 1863 Lieber Code, which first codified the customary international laws of warfare,16 explicitly prohibited rape by penalty of death. Explicit prohibitions against sexual violence
15 See David S. Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 Duke Journal of Comparative & International Law 219 (2005), p. 224. 16 Arts. 44, 47, Instructions for the Government of Armies of the United States in the Field (Lieber Code), (24 April 1863) available at: http://www.icrc.org/ ihl/INTRO/110
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are also codified in Article 27(2) of the Fourth Geneva Convention of 1949, governing the protection of civilians during wartime, which provides that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution and any form of indecent assault”; Article 76(1) of Additional Protocol I, which applies in situations of international armed conflict, providing that: “[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”; and Article 4(2)(e) of Additional Protocol II, which applies in non-international armed conflicts, providing that: “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”. Sexual violence is implicitly proscribed in Article 46 of the 1907 Hague Convention Concerning the Laws and Customs of War on Land, which applies in situations of military occupation, providing that “[f]amily honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected”; Common Article 3 of the Geneva Conventions, which applies in non-international armed conflict, and prohibits “violence to life and person”, including “mutilation, cruel treatment and torture”, as well as “outrages upon personal dignity, in particular humiliating and degrading treatment”; and Article 14 of the Third Geneva Convention, which provides that “[p]risoners of war are entitled in all circumstances to respect for their persons and their honour” and “[w]omen shall be treated with all the regard due to their sex”. The prohibition against rape and other forms of sexual violence has been recognized as a well-established norm of customary international law applicable in both international and non-international armed conflicts.17 BiH is a party to all four Geneva Conventions and their Additional Protocols.18
INTERNATIONAL CRIMINAL LAW Despite the widespread sexual violence that took place during World War II, the Charters of the post-World War II International Military Tribunals at Nuremberg and Tokyo did not expressly criminalize sexual violence in any of its manifestations. Sexual violence was not explicitly prosecuted at the Nuremberg Tribunal, and was only addressed to a limited extent at the Tokyo Tribunal.19 Control Council Law No. 10, which governed the trial of alleged Nazi war criminals in Germany by the Occupying Powers, contained a provision proscribing rape as a crime against humanity. However, no explicit charges were brought for rape during the trials held under this law.20 The most comprehensive developments in the prosecution of conflict-related sexual violence crimes at the international level have taken place since the early 1990s through the work of the international criminal tribunals, and in particular, the ICTY and ICTR. The statutes of both tribunals list rape as a crime against humanity, while the ICTR goes further to recognize “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”
17 ICRC, Study on Customary International Humanitarian Law, Rule 93 (Rape and other forms of sexual violence), see: http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule93 18 BiH became a State Party to the Geneva Conventions and Additional Protocols I and II on 31 December 1992. BiH lodged its instrument of accession to Additional Protocol III on 14 March 2006. 19 See Mark S. Ellis, Breaking the Silence: Rape as an International Crime, 38 Case Western Reserve Journal of International Law 225 (2006-07), p. 228; Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288 (2003), p. 302. 20 Kelly D. Askin, ibid., pp. 301-302.
10 International Criminal Law Module 1 as a war crime. In addition to these provisions, both tribunals have prosecuted alleged perpetrators of sexual violence under statutory provisions that do not expressly reference sexual violence. For example, the ICTR and ICTY have established that sexual violence can constitute torture, persecution, enslavement, and inhumane acts as crimes against humanity, as well as torture, cruel treatment, inhumane treatment, and outrages upon personal dignity as war crimes.21 They have also established that sexual violence can be a constitutive act of genocide.22 The Special Court for Sierra Leone (SCSL) has also established that forced marriage may constitute an inhumane act as a crime against humanity,23 while the Pre-Trial Chamber of the ICC has held that it may constitute the crime against humanity of sexual slavery.24 Building upon the jurisprudential advancements made at the ICTY and ICTR, the Rome Statute of the ICC contains the broadest articulation of conflict-related sexual violence offences to date. The Rome Statute codifies rape as both a crime against humanity and a war crime. It also includes sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as both a crime against humanity and a war crime. Furthermore, for the first time in an international legal instrument, the Rome Statute lists the crime against humanity of persecution on the basis of gender.25 BiH became a State Party to the Rome Statute on 11 March 2002.
SPECIAL EVIDENTIARY AND PROCEDURAL RULES FOR SEXUAL VIOLENCE CASES
Drawing on national criminal justice systems, the international tribunals have established special rules governing the testimony of victims of sexual violence that address the issues of consent, prior and subsequent sexual conduct, and corroboration. These rules are designed to protect victims of sexual violence from added trauma and take into consideration the particular nature of sexual violence crimes. Rule 96 of the ICTY and ICTR Rules of Procedure and Evidence provides that in cases of sexual assault, evidence of a victim’s prior sexual conduct may not be admitted into evidence, and no corroboration of a sexual violence victim’s testimony is required.26 In applying this rule, the ICTR Trial Chamber found that a chamber can make findings based on a single testimony provided that testimony is relevant and credible.27 Rule 96 also provides that consent is not allowed as a defence under certain circumstances. Furthermore, before evidence of a victim’s consent will be admitted, the trial chamber must determine in an in camera hearing that the evidence is both relevant and credible.28
21 See Chapter 4 infra discussing the jurisprudence of the international criminal tribunals on sexual violence. 22 See Furundžija (Lašva Valley), Case No. IT-95-17_1, Trial Judgment (10 December 1998), para. 172; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment (2 September 1998), para. 731. 23 Prosecutor v. Brima, Kamara, and Kanu (“AFRC Case”), Appeal Judgment (22 February 2008) (Special Court for Sierra Leone), para. 184 (finding that forced marriage is “not predominantly a sexual crime” and overruling the Trial Chamber’s conclusion that forced marriage may constitute the crime against humanity of sexual slavery). 24 Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-02/12ICC, Decision on the Confirmation of the Charges (26 September 2008), para. 431. 25 Rome Statute, Article 7(1)(h). Note that the Rome Statute defines “gender” as “the two sexes, male and female, within the context of society”. See Rome Statute, Article 7(3). 26 Rule 96 of the ICTY and ICTR Rules of Procedure and Evidence, entitled “Evidence in Cases of Sexual Assault”, provides: In cases of sexual assault: (i) no corroboration of the victim’s testimony shall be required; (ii)consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear; (iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence. 27 Akayesu Trial Judgment, paras. 134-135. 28 Rule 96 of the ICTY and ICTR Rules of Procedure and Evidence, supra note 49.
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Similar to the ICTY and ICTR Rules, the ICC Rules prescribe an in camera procedure to consider the relevance or admissibility of evidence that a victim consented to alleged crime of sexual violence.29 The ICC Rules also provide that evidence of prior sexual conduct of a victim or witness is not admissible and furthermore bars the admission of evidence of subsequent sexual conduct. Additionally, the ICC Rules enumerate specific principles that apply to cases of sexual violence, including that: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; and (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.30 Furthermore, the ICC Rules provide that corroboration is not required to prove any crime within the Court’s jurisdiction, and in particular, crimes of sexual violence.31
INTERNATIONAL JURISPRUDENCE ON RAPE As rape may be qualified as a war crime, crime against humanity or underlying actof genocide under international and BiH law, there are a number of objective and subjective elements of the respective definitions of these crimes that have been developed by the international tribunals. In the Akayesu case, the ICTR Trial Chamber noted that there was no commonly accepted definition of rape in international law at that time, and that although certain national jurisdictions define rape as “non-consensual intercourse”, rape may also include “acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.”32 The Chamber also considered that “the elements of rape cannot be captured in a mechanical description of objects and body parts”.33 It thus defined the actus reus of rape as:
29 See Rule 72 of the ICC Rules of Procedure and Evidence, which provides: (1) Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case. (2) In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim. (3) Where the Chamber determines that the evidence referred to in sub-rule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70. 30 See Rule 70 of the ICC Rules of Procedure and Evidence. See also Special Court for Sierra Leone (SCSL) Rules of Procedure and Evidence, Rule 96, entitled “Rules of Evidence in Cases of Sexual Assault”, which sets forth the same principles. 31 See Rule 63(4) of the ICC Rules of Procedure and Evidence, which provides: “Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence”. 32 Akayesu Trial Judgment, supra note 45, para. 596, 686. 33 Ibid., para. 597.
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[…] a physical invasion of a sexual nature committed on a person under circumstances which are coercive.34 In the Furundžija case, the ICTY built upon the Akayesu definition, elaborating the nature of the “physical invasion” that may constitute rape as well as the concept of coercive circumstances. The Trial Chamber defined the objective elements of rape as: (i) the sexual penetration, however slight: a. of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; b. of the mouth of the victim by the penis of the perpetrator; c. by coercion or force or threat of force against a victim or third person.35 The Trial Chamber in the Kunarac case concurred with the Furundžija articulation of the actus reus of rape but considered that paragraph (ii) of the definition, which describes the circumstances that negate consent to sexual penetration, was more narrowly construed than required under international law. The Chamber found that other factors besides coercion or force or threat of force against a victim or third person could render sexual penetration non-consensual.36 It thus articulated the objective elements of rape as follows: [T]he sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.37 The Rome Statute has also defined rape as a war crime and crime against humanity, drawing from and building upon the ICTY and ICTR definitions. The ICC Elements of Crimes describes the actus reus of rape as follows: 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, against such person or another person, or by taking advantage of a coercive environment or the invasion was committed against a person incapable of giving genuine consent.38
34 Ibid., para. 598. Shortly after the Akayesu judgment, the ICTY applied the same definition in the Čelebići case. Čelebići Trial Judgment (ICTY), para. 479. 35 Furundžija Trial Judgment, para. 185. 36 Prosecutor v. Kunarac, et al., Case No. IT-96-23&23/1, Trial Judgment (22 February 2001), para. 438. 37 Ibid., para. 460. 38 Rome Statute Elements of Crimes, Articles 7(1)(g)-1 (crime against humanity of rape), 8(2)(b)(xxii)-1 (war crime of rape – other serious violations of the laws and customs applicable in international armed conflict); and 8(2)(e)(vi)-1 (war crime of rape - other serious violations of the laws and customs applicable in armed conflicts not of an international character), available at: http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B- 45BF9DE73D56/0/ElementsOfCrimesEng.pdf . The SCSL has drawn from the ICTY, ICTR and ICC definitions of rape in articulating the elements of the crime. See, e.g., Valerie Oosterfeld, The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments, 44 Cornell Int’l L.J. 49 (2011), pp. 53-61 (citing the AFRC Trial Judgment, supra note 46, which adopted the Kunarac elements of rape, as well as the RUF Trial Judgment, which defined the element of rape as:
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Each of the definitions of rape pronounced by the international tribunals address the issue, either explicitly or implicitly, of whether the requisite sexual penetration was non- consensual. The Akayesu and Furundžija definitions do not explicitly list lack of consent as an element of rape. The definitions instead focus on the factors which may render sexual penetration non-consensual. Akayesu refers to “coercive circumstances”, explaining that not only physical force but a variety of other factors can demonstrate coercive circumstances, including “[t]hreats, intimidation, extortion and other forms of duress which prey on fear or desperation”.39 It further explains that coercion may be inherent in certain circumstances, such as armed conflict or those in which the military is present.40 In Furundžija, the factors found to render sexual penetration non-consensual include “coercion or force or threat of force against a victim or third person”.41 The Chamber added that any form of captivity negates the possibility of consent to sexual penetration.42 Although the Kunarac Appeal Chamber added the element of non-consent to the definition of rape, it emphasized that in most cases involving war crimes or crimes against humanity, the circumstances will almost always be coercive, thus precluding the possibility of consent.43 Kunarac also clarified that there is no requirement to show that the victim resisted in order to prove the victim’s lack of consent.44 In the Gacumbitsi case, the Appeals Chamber provided further insight into the Kunarac definition, holding that “the Prosecution can prove non-consent by proving the existence of coercive circumstances under which meaningful consent is not possible” and that in order to do so, the Prosecution need not “introduce evidence concerning the words or conduct of the victim or the victim’s relationship to the perpetrator” or “of force” but that “the Trial Chamber is free to infer non-consent from the background circumstances, such as an ongoing genocide campaign or the detention of the victim”.45 The issue of consent is also addressed in the Rules of Procedure and Evidence of the ad hoc international tribunals, which apply to all forms of sexual violence, including rape.46
“(i) The Accused invaded the body of a person by conduct resulting in penetration, however, slight, of any part of the body of the victim or of the Accused with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body; (ii) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent; (iii) The Accused intended to effect the sexual penetration or acted in the reasonable knowledge that this was likely to occur; and (iv) The Accused knew or had reason to know that the victim did not consent.” See also AFRC Trial Judgment, supra note 46, para. 693; RUF Trial Judgment (SCSL), para. 145). 39 Akayesu Trial Judgment, para. 688.
40 Akayesu Trial Judgment, para. 688; Čelebići Trial Judgment, para. 495. 41 Furundžija Trial Judgment, para 185. 42 Furundžija Trial Judgment, para. 271. 43 Prosecutor v. Kunarac, et al., Case No. IT-96-23&23/1, Appeal Judgment (12 June 2002) , para. 130. See also Kunurac Appeal Judgment, para. 129 (clarifying that rather than renouncing the Tribunal’s earlier jurisprudence, the Kunarac definition sought to explain the relationship between force and consent; namely, that force or threat of force is not an element of rape but rather evidence of non-consent). See also Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64, Appeal Judgment (7 July 2007), para. 155, which provided further insight into the Kunarac definition, holding that “the Prosecution can prove non-consent by proving the existence of coercive circumstances under which meaningful consent is not possible” and that in order to do so, the Prosecution need not “introduce evidence concerning the words or conduct of the victim or the victim’s relationship to the perpetrator” or “of force” but that “the Trial Chamber is free to infer non-consent from the background circumstances, such as an ongoing genocide campaign or the detention of the victim”. 44 Kunarac Appeal Judgment, para. 128 (noting that it is “wrong on the law and absurd on the facts”). 45 Gacumbitsi Appeal Judgment, supra note 101, para. 155. 46 See Rule 96, ICTY and ICTR Rules of Procedure and Evidence; Rules 63(4), 70 and 72, ICC Rules of Procedure and Evidence. See also section 3.1.3 entitled “Special Evidentiary and Procedural Rules for Sexual Violence Cases”, supra, p26.
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INTERNATIONAL JURISPRUDENCE ON ENSLAVEMENT AND SEXUAL SLAVERY The ICTY and ICTR Statutes enumerate enslavement as a crime against humanity47 but do not contain the distinct crime of sexual slavery. In the Kunarac case, the ICTY defined enslavement in the context of sexual violence. The Trial Chamber held that the actus reus of enslavement is the exercise of any or all of the powers attaching to the right of ownership over a person, while the mens rea is the intentional exercise of such power.48 Kunarac was convicted of enslavement in conjunction with rape.49 Kunarac identified a non-exhaustive list of indicia for determining whether a particular circumstance constitutes enslavement, including “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”.50 It also established that lack of consent is not an element of enslavement although it may be relevant to the question of whether the accused exercised powers attaching to the right of ownership.51 Furthermore, it determined that it is not necessary for the victim to be enslaved indefinitely or for a prolonged period of time in order to establish the crime of enslavement.52 The Rome Statute enumerates sexual slavery as both a war crime and a crime against humanity in addition to enslavement as a crime against humanity.53 The ICC Elements of Crimes defines the actus reus of enslavement as: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.54 The same element comprises the first element of the crime of sexual slavery whether committed as a crime against humanity or a war crime. However, sexual slavery includes the following additional element: The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.55 The SCSL Statute also lists both the crimes of sexual slavery56 and enslavement57 as crimes against humanity, though it does not define them further. The SCSL rendered the first international criminal conviction for sexual slavery in the Sesay et al. case (the “RUF case”),
47 See ICTY Statute, Article 5(c); ICTR Statute, Article 3(c). 48 Kunarac Trial Judgment, para. 540. See also Kunarac Appeal Judgment, para. 118 (in which the Appeals Chamber holds that the law does not know of a “right of ownership over a person” and expresses preference for the language “of a person over whom any or all of the powers attaching to the right of ownership are exercised”). 49 See Kunarac Trial Judgment, paras. 728-745 (finding Kunarac guilty of rape and enslavement as crimes against humanity for keeping two girls in an abandoned house for five to six months where they were constantly raped by Kunarac and another, forced to do household chores and treated as personal property). 50 Trial Judgment, para. 543; Appeal Judgment, para. 119. 51 Kunarac Appeal Judgment, para. 120. 52 Kunarac Appeal Judgment, para. 121. The Trial Chamber clarified that “The question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality. One off them is the duration of the relationship.” See ibid. 53 Rome Statute, Article 7(1)(c) (enslavement); Article 7(1)(g) (sexual slavery as a crime against humanity); Article 8(e)(vi) (sexual slavery as a war crime) 54 ICC Elements of Crimes, Article 7(1)(c), (crime against humanity of enslavement). 55 Article 7(1)(g) – 2, (crime against humanity of sexual slavery); Article 8(2)(b)(xxii) – 2, (war crime of sexual slavery); Article 8(2)(vi) – 2, (war crime of sexual slavery). 56 See SCSL Statute, Article 2(g). 57 See SCSL Statute, Article 2(c).
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thereby solidifying the international standard governing this crime.58 The RUF case defined sexual slavery in accordance with the ICC Elements of Crimes.59 The RUF case clarified that sexual slavery is “a particularized form” of enslavement that includes the exercise of ownership involving sexual acts and adopted the Kunarac indicia for determining enslavement.60 The Chamber also emphasized that the term “similar deprivation of liberty” in the first element of the definition covers “situations in which the victims may not have been physically confined but were otherwise unable to leave as they would have nowhere else to go and feared for their lives”.61
INTERNATIONAL JURISPRUDENCE ON TORTURE AND OTHER ACTS OF SEXUAL VIOLENCE The ICTY and ICTR Statutes criminalize torture as both a crime against humanity62 and a war crime.63 The ICTY and ICTR have held that rape and other forms of sexual violence can constitute torture if the elements of torture are met.64
In the Kunarac case, the ICTY defined the elements of torture as: (i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) The act or omission must be intentional. (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.65
In defining these elements, the Kunarac Trial Chamber clarified that contrary to the holdings of previous trial chambers, the presence of a state official or a person acting in an official capacity in the torture process is not required for an act to qualify as torture under international humanitarian law.66 Furthermore, the ICTY has established that the prohibited purposes of torture enumerated in the third element of the definition are not an exhaustive list,67 that “humiliating the victim” may also be a prohibited purpose,68 and that there is no requirement that the act or omission be perpetrated solely for the prohibited purpose.69 The ICTY and ICTR have also held that sexual violence necessarily gives rise to severe pain or suffering, whether
58 Prosecutor v. Sesay, Kallon and Gbao, (“RUF Case”) Case No. SCSL-04-15-T, Trial Judgment (2 March 2009). 59 RUF case, Trial Judgment, para. 158. Taylor defined the elements of sexual slavery in accordance with theRUF Case definition. See Prosecutor v. Taylor, Case No. SCSL-03-01, Trial Judgment (18 May 2012), para. 418. 60 RUF case, Trial Judgment, paras. 155, 159-160. 61 Ibid., para. 161. 62 See ICTY Statute Article 5(f); ICTR Statute Article 3(f). 63 See ICTY Statute Article 2(b); ICTR Statute Article 4(a). 64 Akayesu Trial Judgment, para. 597; Čelebići Trial Judgment, paras. 495- 496; Furundžija Trial Judgment, para. 171; Kunarac Trial Judgment, paras. 655-656; Prosecutor v. Kvočka, Case No. IT-98-30/1, Trial Judgment (2 November 2001), para. 561; Prosecutor v. Semanza, Case No. ICTR-97-20, Trial Judgment (15 May 2003), para. 483. 65 Kunarac Trial Judgment, para. 497. 66 Kunarac Trial Judgment, para. 496; Kunarac Appeal Judgment, para. 148. See also Furundžija Trial Judgment, para. 162. [Note: both definitions in the context of war crimes while Kunarac is crimes against humanity]. The ICTR has adopted the Kunarac definition of the elements of torture.See Semanza Trial Judgment, paras. 342-343. 67 Čelebići Trial Judgment, para. 470. 68 Furundžija Trial Judgment, para. 162. 69 Čelebići Trial Judgment, para. 470.
16 International Criminal Law Module 1 physical or mental. The first element of torture is thus automatically established once rape has been proved.70 The prosecution of torture as a crime against humanity71 and a war crime72 is also provided for under the Rome Statute. Torture as a crime against humanity is defined as: 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were in the custody or under the control of the perpetrator. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.73 Unlike the ICTY and ICTR elements, the ICC does not require proof that an act was undertaken for a prohibited purpose for it to constitute torture as a crime against humanity. This element is required, however, for torture to constitute a war crime. The ICC Elements of Crimes defines the war crime of torture as: 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. The notion that rape can constitute torture has also been recognized by regional human rights bodies, including the Inter-American Commission on Human Rights and the European Court of Human Rights.74 The Rome Statute also provides for the prosecution of “any other form of sexual violence” as a crime against humanity in Article 7(1)(g) and as a war crime in Articles 8(2)(b)(xxii), and 8(2)(e)(vi). This crime was first set forth in the Rome Statute. The ICC Elements of Crimes defines sexual violence as follows: The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.75
70 Kunarac Appeal Judgment, paras. 150-151. See also Semanza Trial Judgment (finding that “by encouraging a crowd to rape women because of their ethnicity, the accused was encouraging the crowd to inflict severe physical or mental pain or suffering for discriminatory purposes” and that he thus “was instigating not only rape, but rape for a discriminatory purpose, which legally constitutes torture”), para. 485. 71 See Rome Statute, Article 7(1)(f). 72 See Rome Statute, Articles 8(2)(a)(ii) and 8(2)(c)(1). 73 ICC Elements of Crimes, Article 8(2)(a)(ii) – 1. 74 See Fernando and Raquel Mejia v. Peru, Annual Report of the Inter-American Commission on Human Rights, Report No. 5/96, Case No. 10.970, 1 March 1996; Aydin v. Turkey, European Court of Human Rights, Reports of Judgments and Decisions, No. 50 (1997-VI), para. 86. 75 ICC Elements of Crimes, Article 7(1)(g) – 6.
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For crimes against humanity, this conduct must be of a comparable gravity to the other offences in Article 7(1)(g) of the Statute.76 For war crimes, the conduct must be of comparable gravity to that of a grave breach of the Geneva Conventions77 or to that of a serious violation of Common Article 3 of the Geneva Conventions I-IV.78 The standalone crime of sexual violence is not codified in the statutes of the ICTY and the ICTR. However, Akayesu held that sexual violence can fall within the scope of other inhumane acts as a crime against humanity; outrages upon personal dignity as a war crime; and causing serious bodily or mental harm to members of the group as a form of genocide.79 In Akayesu, the ICTR first articulated the elements of sexual violence as: […] any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.80 Thus, other acts of sexual violence may include rape but are not limited to it. The ICTY in the Kvočka case (2001) endorsed this definition, adding that sexual violence is broader than rape and includes such crimes as sexual slavery or molestation, sexual mutilation, forced marriage, forced abortion, and the gender-related crimes explicitly listed in the Rome Statute.81 In the Furundžija case, the ICTY added that: […] international criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim’s dignity. As both these acts are criminalised in international law, the distinction between them is one that is primarily material for the purposes of sentencing.82
INTERNATIONAL JURISPRUDENCE ON RAPE AND SEXUAL VIOLENCE AS THE CRIME AGAINST HUMANITY OF PERSECUTION The ICTY and ICTR Statutes have codified persecution as a crime against humanity on political, racial and religious grounds.83 The SCSL Statute additionally recognizes persecution on account of ethnicity.84 In addition to the grounds enumerated in the Statutes of the ICTY, ICTR and SCSL, the Rome Statute recognizes persecution on national, cultural, and gender grounds, as well as
76 Ibid., para 2. 77 Elements of Crimes, Article 8(2)(b)(xxii) – 6, (war crime of sexual violence). 78 Elements of Crimes, Article 8(2)(e)(vi) – 6, (war crime of sexual violence). 79 See Akayesu, para. 688, citing ICTR Statute Articles 2(2)(b) – causing serious bodily or mental harm to members of the group as a form of genocide, 3(i), - other inhumane acts as a crime against humanity, and 4(e) – outrages upon personal dignity as a war crime. 80 Akayesu Trial Judgment, para. 598, 688. 81 Kvočka et al., Trial Judgment, para. 180 and fn. 343. 82 Furundžija Trial Judgment, para. 186. 83 See Rome Statute, Article 5(h); ICTR Statute, Article 3(h). 84 See SCSL Statute, Article 2(h).
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“other grounds that are universally recognized as impermissible under international law, in connection with any [crime against humanity] referred to in [Article 7(1) of the Statute] or any crime within the jurisdiction of the Court”.85 This is the first time that gender has been set forth as a basis for persecution in an international legal instrument. The ICTY has defined persecution as: An act or omission that: 1. discriminates in fact and which denies or infringes upon a fundamental right laid down in customary international or treaty law (the actus reus); and 2. was carried out deliberately with the intent to discriminate on political, racial and religious grounds (mens rea).86 Although the ICTY and ICTR Statutes do not recognize persecution on the grounds of gender, in several cases, rape and other forms of sexual violence were found to constitute forms of persecution on political, racial and religious grounds.87 The ICC Elements of Crimes defines the elements of persecution as: 1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. 3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court. 5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.88 To date, the ICC has not rendered a conviction for persecution based on gender; although charges for gender-based persecution were brought in one case by the Prosecutor, they were not confirmed by the judges.89
85 See Rome Statute, Article 7(1)(h). 86 Stakić Trial Judgment, para. 732. See also Prosecutor v. Kupreskić, et al., Case No. IT-95-16, Trial Judgment (14 January 2000), para. 621 Prosecutor v. Tadić, Case No. IT-94-1, Opinion and Judgment, Trial Judgment (7 May 1997), paras. 697, 715. 87 See, e.g., Prosecutor v. Todorović, (Bosanski Šamac), Case No. IT-95-9/1, Sentencing Judgment (31 July 2001), paras. 3, 9, 17, 38-40 (finding Todorović guilty, pursuant to a guilty plea, of persecution for acts of sexual violence, including forced oral sex, against men detained in police stations); Kvočka et al. Trial Judgment, paras. 546-561 (finding the accused guilty of persecution for acts including sexual assault and rape of women detained in Omarska camp); Prosecutor v. Nahimana et al. (“The Media Case”) Case No. ICTR-99-52, Trial Judgment (3 December 2003), paras. 1069, 1079, 1092-1094 (findingthe accused guilty of persecution for acts including the portrayal by the media of “Tutsi women as femme fatal, and the message that Tutsi women were seductive agents of the enemy”, which “made the sexual attack of women a foreseeable consequence”). 88 See ICC Elements of Crimes, Article 7(1)(h). See also Rome Statute, Article 7(2)(g) (defining persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”). 89 See Women’s Initiatives for Gender Justice, Gender Report Card of the International Criminal Court 2012, (2012), available at: http://www.iccwomen. org/documents/Gender-Report-Card-on-the-ICC-2012.pdf, pp. 104-105, 116 (noting that the accused Callixte Mbarushimana (Democratic Republic of the Congo) was charged, inter alia, with persecution based on gender).
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MODES OF LIABILITY COMMISSION AND PARTICIPATION
The ICTY/ICTR Statutes have incorporated modes of liability that are recognized under customary international law. It is noteworthy that the Rome Statute of the ICC departed from the law and jurisprudence on modes of liability established by the ICTY and ICTR. In particular, the ICC does not recognize joint criminal enterprise liability, per se. Rather, the Rome Statute has incorporated a different form of common purpose liability called co- perpetration (Article 25(3)(a)), indirect co-perpetration (Article 25(3)(a)) and other forms of common purpose liability (Article 25(3)(d)). ICTR Statute Article 6(1) and ICTY Statute Article 7(1) are identical. They form the general basis of the various modes of liability applied at those and some other international and hybrid criminal courts.
ICTY/ICTR Statutes Article 7(1)/6(1)
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime […] shall be individually responsible for the crime.
As with the bulk of the substantive law of the ICTY and ICTR, the definitions of the modes of liability are those found in customary law at the relevant time.90 The statutes cover those persons who plan, instigate, order, directly perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. They also include those modes of participating in crimes that occur when a group of people, who all share a common purpose, undertake criminal activity that is then carried out either jointly or by some members of the group.91 At the ICTY and ICTR, as at some other international criminal courts, the legal basis for individual criminal responsibility is customary international law.92
FORMS OF INDIVIDUAL CRIMINAL RESPONSIBILITY The forms of individual criminal responsibility applying to genocide, crimes against humanity and war crimes at the ICTY, ICTR and ICC are: • Planning; • Instigating; • Ordering; • Committing (direct perpetration);
90 Enver Hadžihasanovic, Case No. IT-01-47, Appeals Chamber, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 44; Duško Tadic, Case No. IT-94-1-T, Trial Judgment, 7 May 1997, paras. 666-9; Duško Tadic, Case No. IT-94-1-A, Appeal Judgment, 26 Jan. 2000, paras.188-192. 91 Tadic, AJ paras.188-192. 92 Tadic, TJ paras. 666-669.
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• Aiding and abetting in the planning, preparation or execution of a crime; • JCE (which is considered to be a form of commission) • Superior/command responsibility; • Co-perpetration (joint perpetration); • Indirect perpetration; and • Indirect co-perpetration. The modes of liability covered here stem mainly from the ICTY and ICTR Statutes and case law. Some of these modes of liability overlap to varying degrees. It is important to recall that the elements of each mode of liability described in the following sections must be proven in addition to the elements of the particular substantive crimes being charged and their chapeau requirements. Modes of liability can be proven “by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused”.93
93 See, e.g., Stanislav Galic, Case No. IT-98-29-A, Appeal Judgment, 30 Nov. 2006, paras. 177-8.
International Criminal Law 21
INVESTIGATING SEXUAL AND GENDER-BASED VIOLENCE AS GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES: OVERVIEW OF RELATED INTERNATIONAL LAW & BEST PRACTICE
March 2014
STRUCTURE
• What will be covered in this lesson? • Purpose of lesson on atrocity crimes law, including components related to sexual and gender-based violence (“SGBV”)? • Focus and scope of this lesson • Terminology • General (public) international law: basic features • Relationship between international law and domestic (national) law: basic features • International criminal law: basic features • Introduction to international law on genocide, crimes against humanity and war crimes (“atrocity crimes”)
• International genocide law & related SGBV components: overview • International law on crimes against humanity & related SGBV components: overview • International law of war crimes & related SGBV components: overview • References to other relevant international law and best practice issues, incl. on selected SGBV-relevant procedural and evidentiary issues • Further reading PURPOSE
• What is purpose of this lesson on international atrocity crimes law and related SGBV components? • Origins of BiH law on atrocity crimes = international law, i.e., = background to SGBV- relevant BiH law • International law can be direct and indirect sources of law in BiH • When interpreting BiH law, international law (incl. case-law of ICTY) is sometimes used as interpretative guide or tool, e.g., because it has persuasive authority (even if that law is not binding on the court)
PURPOSE
• This lesson forms the backdrop to and is the foundation of the later lesson on BiH law and practice related to the investigation of SGBV as atrocity crimes
FOCUS & SCOPE
• What is focus and scope of this lesson? • (Public) international law. (Focus not on related BiH law, covered in other lessons of module.) • International law on international crimes of genocide, crimes against humanity and war crimes. (Excludes other international crimes, and international humanitarian and human rights law violations that do not amount to atrocity crimes.) • Main focus: core international atrocity crimes law. (Excludes, e.g., detail on global enforcement mechanisms, incl. national courts and International Criminal Court (“ICC”) and UN International Criminal Tribunal for the former Yugoslavia (“ICTY”).
FOCUS & SCOPE
• What may be of relevance to BiH police investigators investigating allegations of SGBV-related atrocity crimes committed in BiH for purposes of possible prosecution in BiH • Overview only. (Not comprehensive introduction to and treatment of relevant international atrocity crimes law.) • Problematic/ divisive aspects of international atrocity crimes law and its enforcement at the national and international level fall outside focus of this module TERMINOLOGY
• Public international law = international law • Customary international law = custom(ary law) • Atrocity crimes: short for 1 or more of 3 categories of international crimes of war crimes, crimes against humanity and genocide • Sexual and gender-based violence (“SGBV”) • Seksualno i rodno-zasnovano nasilje (“SRZN”) • See definition of SGBV in BiH law • Conceptually “SGBV” is imperfect. E.g., not all sexual and gender-based conduct that amounts to atrocity crime has violence as a (legal) element of definition of crime • Use “SGBV” for practical reasons
TERMINOLOGY
• Sex and gender of victims/ survivors of SGBV-related atrocity crimes: • Women and girls are not the only victims of SGBV atrocity crimes • Other victims include men and boys. (Growing body of research shows that conflict-related SGBV against men is a common and serious problem across many conflicts, incl. in armed conflicts of 1990s in BiH.) • War = armed conflict
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• What is international law, and what are its basic features? • Definition of international law: • Different definitions • Common features of definitions: international law governs conduct, rights and obligations of – with a few exceptions – states
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Makers’ and addressees of international law: • Mainly states • Some international law made by (and/ or addressed to) state-created international organisations (such as United Nations and European Union) • Accountability architecture includes: • Inter-state courts and dispute-resolution fora (such as International Court of Justice (“World Court”), European Court of Justice, and other judicial and quasi- judicial fora such as UN human rights bodies • Countermeasures by injured state GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Consequences of violations of international law can include: • state responsibility • remedies such as compensation and restitution • Over the years, international law has increasingly targeted worldwide problem of SGBV, particularly against women and children, in peacetime and during armed conflict. SGBV against men is receiving growing international law attention
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Sources of international law (i.e., where international law can be ‘found’) include: • Treaties • Custom (customary international law) • General principles of law (commonly found in municipal (domestic) legal systems of the world) • Unilateral acts of states • Subsidiary sources: • Judicial decisions • Teachings of the most highly qualified publicists (legal writings)
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Some or all of sources may be binding on or may otherwise guide interpretation of different courts and quasi-judicial fora; depends on law specific to particular forum • To follow: • Some comments on key relevant sources • Relationship and hierarchy among sources
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Treaty law • Written agreements between states (and, sometimes, between states and international organisations such as UN) operating within field of international law • Binds only parties (focusing on states) that have ratified / acceded to it (signature alone not sufficient unless treaty expressly provides otherwise) • Ratification/ accession law: • Differs between states, but often involves parliament in some way • NB issue: if state has not ratified/ acceded (is not a party to the treaty) it is not bound by that treaty as such GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Treaties can have different designations, incl.: • conventions • protocols • charter • Examples of treaties: • Convention on the Elimination of All Forms of Discrimination against Women • European Convention for the Protection of Human Rights and Fundamental Freedoms • UN Charter • Rome Statute of the International Criminal Court (“ICC Statute”) • Vienna Convention on the Law of Treaties
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Custom • Unwritten law based on • state practice or usus (i.e., usually, consistent, uniform and settled practice between states) • which is accepted by them as law (i.e., acceptance by relevant states that they are bound to rule in question, also referred to opinio juris) • General customary international law binds all states. (Particular/ specific/ local custom binds only those states between which customary rule in question exists.)
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Can be difficult to prove existence and content of custom • Evidence of custom can be found in, e.g., • diplomatic correspondence • official policy statements and decisions by governments • military manuals • national laws • national and international judicial decisions • practice of international organisations, incl. decisions of UN General Assembly and Security Council, European Union, Council of Europe, and Organisation for Security and Cooperation in Europe
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• “Subsidiary sources” • Judicial decisions • Of especially international and hybrid courts, including World Court, ICTY, ICC, European courts of justice and human rights • Whether a state or court is bound by a particular judicial decision will depend on specifics of the law • Teachings of the most highly qualified publicists • Legal writings can provide evidence of customary international law, and be useful interpretation tools • Depending on context, these sources can be very important in practice GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Relationship and hierarchy between sources • Generally and in practice, custom law and treaty law are the top sources, and are equal in status • In case of conflict between customary and treaty law, rules of legal interpretation are used to resolve conflict • Relationship between customary and treaty law can be complex; e.g.: • A rule can be both of customary and treaty nature at same time (e.g., genocide is outlawed in treaties and in customary law) • Custom can give rise to treaty law, and vice versa
GENERAL INTERNATIONAL LAW: BASIC FEATURES
• Jus cogens norms • Peremptory norms of international law: no derogation possible; all other law must be interpreted consistently with such norms • Examples: prohibition against genocide and torture • Obligations erga omnes • Obligations which a state owes to the international community as a whole and in the enforcement of which all states have an interest • Examples: respect for right to self-determination • Non-injured state can institute proceedings against state violating higher norm
RELATIONSHIP BETWEEN INTERNATIONAL AND DOMESTIC LAW
• What is relationship between international law and domestic (national) law? • Basic features only • On the international plane: • states are bound by applicable international law (such as treaties to which they are parties, and customary law) • regardless of what the national (and sub-national) law of such states may say on the matter. (In other words, contradictory national law is no valid excuse on the international plane (in disputes with other parties) for violating international law.)
RELATIONSHIP BETWEEN INTERNATIONAL AND DOMESTIC LAW
• On the national plane: • States vary in if and how international law and its different sources apply and otherwise have effect and influence in national law. • E.g., the constitutional law of some states: • Allow for treaties that they have ratified to create nationally justiciable rights and obligations only if parliaments have passed laws incorporating or domesticating those treaties, while others allow for such treaties to apply directly (i.e., such treaties can be direct sources of national law). • Allow for customary international law to automatically form part of national law, while in others this is not the case. INTERNATIONAL CRIMINAL LAW: BASIC FEATURES
• What is international criminal law, and what are its basic features? • International criminal law (“ICL”) forms part of or is a sub-set of international law • So, in general, it shares the basic features of general international law, incl. in relation to who its ‘makers’ are • But, ICL has important specificities
INTERNATIONAL CRIMINAL LAW: BASIC FEATURES
• Specificities include: ICL • Concerns international crimes for which state as well as individual criminal liability may follow • Primary addresses include individuals • Not mere “violations” of the law: “(international) crimes” • Depending on specifics of applicable international law, suspects must, e.g., be: • Investigated, prosecuted and tried nationally • Extradited to another state for investigation, etc. • Transferred to an international court for trial
INTERNATIONAL CRIMINAL LAW: BASIC FEATURES
• Remedies vis-à-vis individuals can include: • Imprisonment and fines • Reparations, incl. compensation to victims • Examples of treaties and crimes • Torture (Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment) • Enforced disappearances (International Convention for the Protection of all Persons from Enforced Disappearance) • Terrorism (various treaties) • Genocide, crimes against humanity and war crimes (and related treaties covered later)
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• What is international atrocity crimes law? • For purposes of this module lesson, it refers to: • general international law on the international crimes of • genocide, crimes against humanity and war crimes • International atrocity crimes law forms part of international criminal law which forms part of international law (see preceding slides) INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• In parts, international atrocity crimes law has its origins in, is influenced by and/or overlaps with: • International humanitarian law (IHL) (or law of armed conflict), which • applies only during armed conflict and certain other contexts • mainly addresses states but has a small component which addresses individuals • International human rights law (IHRL), which • applies during peacetime and armed conflict, and during armed conflict exists alongside but is also modified by IHL • addresses states on human rights and freedoms, incl. freedom from torture, and rights to privacy and bodily integrity and to fair trial • No neat separation between ICL, IHRL and IHL
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• Main sources of international atrocity crimes law: treaty law and customary international law • Examples of treaties: • Convention on the Prevention and Punishment of Genocide (“Genocide Convention”) • 1949 Geneva Conventions, incl. Geneva Convention IV Relative to Protection of Civilian Persons in Time of War (“Geneva Convention IV”), and their two 1977 additional protocols relating to protection of victims in international and non- international armed conflicts • ICC Statute • Statutes of ICTY and UN International Criminal Tribunal for Rwanda (although these statutes are resolutions of UN Security Council the origin of authority of Security Council to adopt such statutes lies in a treaty, i.e., UN Charter) • Treaty establishing Special Court for Sierra Leone (“SCSL”) and related statute of SCSL
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• Accountability infrastructure regarding atrocity crimes: • Ranges from national to hybrid and international mechanisms, each with its own jurisdictional requirements • Ranges from prosecutorial/ judicial mechanisms such as courts to quasi-judicial and other mechanisms such as truth and reconciliation commissions
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• International and hybrid judicial and quasi-judicial accountability mechanisms incl. • ICC • ICTY, ICTR and SCSL and their residual mechanisms • Human rights courts and commissions, such as European Court of Human Rights, UN Human Rights Council and African Commission on Human and Peoples’ Rights INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• Which sources of international atrocity crimes law apply in or are binding on a particular state or international or national court will depend on specificities of law, incl. • in relation to states, which treaties they are party to • in relation to international courts, what their founding instruments say about the applicable sources of law • NB: aspects of international atrocity crimes law differ between jurisdictions. (E.g., crimes against humanity law applicable in BiH differs from equivalent law in South Africa, and ICTY’s crimes against humanity law differs from that of ICC.)
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• For current purposes, ICC legal instruments are particularly useful as example of relevant general international law: • See ICC Statute articles 6 to 8 • See ICC Elements of Crimes document in relation to articles 6 to 8 • Warning: the law set out in mentioned ICC sources to a large extent reflects position under general international law, incl. customary international law, but in some respects ICC law is different from general international law and the law applied by some other international courts such as the ICTY
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• (Oversimplified) basic legal structure (legal elements) of each of 3 categories of atrocity crimes • Contextual (chapeau or common) elements • Distinguishes 1 category from others • Elements of underlying crime (prohibited acts) including law on requisite mental element (intent/ knowledge) • E.g., elements of rape/ killing/ torture (as war crime, crime against humanity or genocide) • Linkage elements (modes of liability, linking accused to alleged crime)
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• In theory, genocide, crimes against humanity and war crimes law can apply at same time to same set of facts • In law and practice, choice is often made to prosecute or convict for only one category of crime • Under international law • SGBV acts are criminalised that may not be criminalised in many national jurisdictions • Generally, sexual crimes are gender-neutral, meaning that men and women can be victims (e.g., men can also be raped, though only women can be forcibly impregnated) • Particular conduct can constitute more than one underlying crime (e.g., rape can constitute rape and torture as a crime against humanity) INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• What follows is: • A brief overview of general international law on genocide, crimes against humanity and war crimes and selected other related legal and practice issues, incl. some SGBV components of procedural and evidentiary law. (The focus is therefore not on the law of a particular court, but rather on the said law generally with appropriate references to the law of selected jurisdictions.)
INTERNATIONAL ATROCITY CRIMES LAW: INTRODUCTION
• Insofar as the legal elements of each of the 3 atrocity crimes is concerned, most attention is given to the contextual and linkage legal elements of each crime. (In other words, what follows is not a comprehensive overview of every legal element of each of the 3 atrocity crimes. For example, the mental (mens rea) and conduct (actus reus) elements of the crimes are not covered comprehensively or in detail.)
INTERNATIONAL GENOCIDE LAW & RELATED SGBV COMPONENTS
• What are key features of international genocide law and its related SGBV components? • Definition of crime of genocide: • Read articles 2-3 of Genocide Convention • Genocide definitions in e.g. ICTY Statute and ICC Statute essentially the same as Genocide Convention definition (with some important differences)
INTERNATIONAL GENOCIDE LAW & RELATED SGBV COMPONENTS
Genocide Convention, articles 2-3: “Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group... The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.” Genocide & related SGBV components
• Origins of genocide law: • International human rights law • Atrocities of World War II • Peacetime and wartime: • Genocide can be committed in both; no general international law requirement that must be committed during armed conflict • But in practice genocide is ordinarily committed in context of armed conflict • Key value protected by genocide law: protection of right of certain groups to continued existence
Genocide & related SGBV components
• In law, genocide need not involve mass killing (but in reality, it usually does) • In law, there can be a single suspect/ accused/ perpetrator (but in reality, it usually involves multiple perpetrators)
Genocide & related SGBV components
• International law elements of genocide: • Special (specific) intent: to destroy whole or part of group • = THE key feature of genocide • Need to destroy whole or part of group in fact? No • Destroy • Intent to physically or biologically destroy
Genocide & related SGBV components
• “Ethnic cleansing”? Not a term recognised or defined in ICL. Depending on context, may refer to various types of conduct which may or may not be covered by genocide definition • Examples of conduct that can evince intention to physically destroy a protected group include: • Mass killing • Killing a significant part of a group such as the leadership • Forcible transfer • Systematic destruction of male or female members of part of a group which places physical survival of the group as a whole at risk Genocide & related SGBV components
• Whole or in part • World Court and international criminal courts: “part” can denote destruction of part of group in a geographically limited area (e.g. Tutsis in Rwanda only, rather than in Democratic Republic of the Congo and elsewhere too) • Intent to destroy “at least a substantial” part of group • “Substantial part” determined e.g. by considering prominence of targeted individuals within group and number of targeted people and whether group or part thereof is essential to survival of group as whole (but requirement is not that an ‘important’ part or part of special significance must be destroyed) • Part of “special significance” for protected group, e.g. women (destroying them means group’s existence is threatened)
Genocide & related SGBV components
• Four protected groups • Members and supporters of a political party or social movement? Not covered – unless also included in one/more of expressly listed groups • Exclusive list: ethnic, racial, religious, national groups • Definitions of “ethnic/ racial/religious/national”? • To be determined on case-by-case basis • Such groups do not necessarily have any objective existence • Intention was not to give distinct and mutually exclusive meanings • National: legal bond – citizenship • Racial: hereditary physical traits • Ethnic: common language or culture • Religious: denomination or mode of worship or group sharing common beliefs
Genocide & related SGBV components
• Definition of group: subjective (from perspective of perpetrator) versus objective? Look at both, i.e. what perpetrator thought of group identity as well as self-perception of group members • In some national systems, “political” and other groups have been added to list of protected groups (and other elements of genocide law may also have been adapted to national context) • Gender not expressly included in international law definition • “As such” • Signifies that the group = target • Targeted because of membership of particular group – not because of individual identity Genocide & related SGBV components
• Prohibited acts / underlying crimes • Prohibited acts under genocide definition = closed list • Prohibited acts include SGBV crimes, such as • Serious bodily or mental harm that can include rape and other forms of sexual violence. (E.g., the ICTR has ruled that acts of rape and other sexual violence can constitute such harm and thus genocide.) • Imposing measures intended to prevent births within the group. (Examples of such measures incl. sexual mutilation, sterilisation, forced birth control and prohibition of marriages.) • ICC Elements of Crimes document throws more light on interpretation of prohibited acts, i.e. on elements of each prohibited act
Genocide & related SGBV components
• Context of prohibited acts • ICC Elements of Crimes document: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” • Unique to ICC law. Not an element of general international law • Idea with this requirement is to prevent prosecution by ICC of cases that are not manifestly serious/ grave in sense of (potential) impact • “Manifest” = objective test
Genocide & related SGBV components
• Other notes on genocide law: • Genocide law must be read alongside applicable law on modes of liability/ participation (incl. e.g. Incitement, attempt and complicity) in order to get full understanding of the crime • Of the 3 atrocity crimes, genocide law generally is the most demanding for investigators, prosecutors and judges, mainly because of the special (specific) intent requirement which can be difficult to investigate and prove • There is no legal requirement that a plan or policy to commit genocide must exist, but such policy/ plan will be useful evidence in support of other legal requirements CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• What are key features of international law on crimes against humanity and its related SGBV components? • Useful example and definition of crimes against humanity and its underlying acts (prohibited acts): • Read ICC Statute article 7 • Scan ICC Elements of Crimes document on article 7
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Crux of general international law definition: crimes against humanity are certain prohibited acts (underlying crimes) when committed as part of a widespread or systematic attack directed against any civilian population
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Origins of crimes against humanity law: • International human rights law • Atrocities of World War II • Different jurisdictions have different definitions for crimes against humanity, e.g. • ICTY has armed-conflict requirement • ICTR has discriminatory-grounds requirement • But crux of general international law definition reflected in ICC definition
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• The stand-out feature/ element of crimes against humanity (what makes an ‘ordinary’ crime a crime against humanity)? = context of attack against civilian population • Can crimes against humanity be committed in peacetime and wartime? • Under customary law and ICC Statute: no express or implicit requirement of link to or context of armed conflict • But in practice, crimes against humanity are usually committed during armed conflicts
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Main legal elements of crimes against humanity under international law: • Prohibition of certain (underlying) acts (each with own legal elements) • Committed as part of • Widespread or systematic • Attack • Directed against • Any civilian population as such • Nexus and knowledge of attack CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Attack • Need not be an armed attack • Attack refers to broader course of conduct involving multiple acts (such as those listed in ICC Statute article 7(1)) • Attack can be constituted by violent and/or non-violent acts
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Widespread or systematic attack • Widespread: indications • Large-scale nature of attack • Number of victims • Cumulative effect of numerous acts – or effect/impact of singular, large act • Systematic: indications • Pattern of violations • Plan • Level of organisation • “Improbability of their random occurrence” • Whatever information points to it being more than singular, unrelated, small- scale attacks • “Or” (disjunctive): not “and”
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• Attack must be directed against any civilian population • This element also touches on requirement of widespread or systematic nature of attack, i.e., organised nature of attack • Attack against a population must not be accidental, random or incidental, but must be aimed / targeted and organised • Existence of a plan or policy to attack a particular civilian population not legally required but will be helpful evidence
CRIMES AGAINST HUMANITY & RELATED SGBV COMPONENTS
• In ICC law, the attack must be pursuant to state or organisational policy • See ICC Statute article 7(2)(1) and ICC Elements of Crimes document on article 7 • Controversial element: some experts say this is a requirement under general international law as well, while others say it is not (and is only an ICC law requirement) Crimes against humanity & related SGBV components
• Any civilian population • Civilian population – as a collective (i.e., not just attack against random individuals – must be primary target • “Any” = significant as it means that nationality or other affiliation is irrelevant • “Civilian”: even if fighters/ soldiers are present, as long as population is “predominantly” civilian • Will not be crime against humanity if attack is directed against legitimate military objectives in accordance with IHL
Crimes against humanity & related SGBV components
• Underlying (prohibited) acts/ crimes • Each with their own legal elements • SGBV crimes included, expressly and implicitly, e.g., • Rape (rape can also constitute torture) • Under international law rape’s definition is gender-neutral, i.e., men and women can be raped (the same applies to other SGBV crimes under international law) • Forced pregnancy and enforced prostitution • Other inhumane acts • Sexual slavery
Crimes against humanity & related SGBV components
• Trafficking of women as enslavement • Persecution • A single act by an accused may constitute a crime against humanity – as long as it forms part of the attack. (Only the attack, and not acts of individual accused, must be widespread or systematic.) •
Crimes against humanity & related SGBV components
• Nexus (link) and knowledge of context • Conduct (underlying acts) must be linked to the attack (must objectively fall within attack), and accused must be aware of broader context • E.g., campaign of killing, but X commits sexual violence in execution of that campaign = crime against humanity • 1000s of kilometers between act in issue and attack? As long as act can be linked to the attack, doesn’t matter that it takes places far away from area in which attack is mainly focused • Accused must have been aware of broader context of attack directed against a civilian population Crimes against humanity & related SGBV components
• Other notes on law on crimes against humanity: • Law on crimes against humanity must be read alongside law on modes of liability/ participation (incl. e.g. planning, aiding and abetting, committing, superior/ command responsibility) in order to get full understanding of the crime • Customary law and law of most international and hybrid courts do not require that crimes against humanity be linked to or take place during armed conflict. (ICTY is an exception.)
Crimes against humanity & related SGBV components
• Perpetrator can be a civilian or fighter, and need not have any affiliation to those launching the attack or share their purposes • Perpetrator’s acts need not be of the same kind/ type as other acts comprising attack. (E.g., someone can be convicted of a crime against humanity of rape even if the attack to which that act is linked otherwise only comprised acts of killing and forcible transfer.)
Crimes against humanity & related SGBV components
• What are key features of international law on war crimes and its related SGBV components? • Useful starting point and definition of war crimes, including prohibited acts (underlying crimes): • Read ICC Statute article 8 • Scan ICC Elements of Crimes document on article 8 • NB: the said provisions differ in some respects from general international law, incl. customary international law
Crimes against humanity & related SGBV components
• Crux of war crimes: certain prohibited acts committed in the context of an international or non-international armed conflict • Stand-out/ unique feature of war crimes (that which makes an ‘ordinary’ crime a war crime): armed conflict context War crimes & related SGBV components
• Origins of war crimes law: international humanitarian law (IHL, or law of armed conflict or law of war), which has been regulating conduct of war for centuries • Underlying idea: • Not all is fair in war • In war, some things may never be done (e.g., you can lawfully kill enemy combatants, but you cannot torture them, nor can you kill former combatants who are unable to fight, nor are you permitted – in any circumstances – to commit SGBV against any person, whether a combatant or not)
War crimes & related SGBV components
• To properly understand war crimes law, it is necessary to have an understanding of general IHL • Bulk of IHL concerns rights and duties of states • Not all violations of IHL are war crimes • Very small part of IHL concerns duties of and addresses individuals, and provides for individual criminal liability in case of violations: war crimes law
War crimes & related SGBV components
• By their very nature, war crimes are serious or grave violations of IHL • War crimes go under various names in different jurisdictions, such as • Serious violations of IHL • Violations of the laws and customs of war • “Grave breaches”: in some instruments, this is the name of war crimes when committed in context of an international armed conflict
War crimes & related SGBV components
• Originally, IHL was only concerned with inter-state (international) armed conflict, but its scope is increasingly broadening to cover civil wars (non-international armed conflicts) as well • IHL found primarily in treaty and customary international law • Treaty examples of IHL incl. war crimes law: • 1949 Geneva Conventions, incl. Geneva Convention IV • Two 1977 additional protocols (AP) to 1949 Geneva Conventions: • AP I on protection of victims of international armed conflict • AP II on victims of non-international armed conflict War crimes & related SGBV components
• All of war-crimes law in essence stems from fundamental IHL principles, including: • Non-combatants are protected (incl. civilians, former combatants such as prisoners of war (“POWs”), fighters hors de combat because wounded, sick, surrender, and otherwise taking no active part in hostilities, e.g. due to detention) • Principle of distinction: distinction between military objectives and civilian population and objects: only military objectives may be attacked • Principle of proportionality: when attacking military objectives, take steps to avoid or minimise collateral civilian damage and refrain from attacks that would cause excessive civilian damage
War crimes & related SGBV components
• Basic international law elements of war crimes: • Armed conflict (AC): international or non-international • Elements of particular underlying/ prohibited acts • Involving violations against protected persons or property • Nexus between prohibited underlying act and AC, and awareness of AC circumstances
War crimes & related SGBV components
• Armed conflict • Objective test: any resort to armed force between relevant armed forces • No requirement of formal declaration of war • AC exists even if attacked party does not or cannot defend itself or retaliate • Indicators • Intensity of fighting • Level or organisation of parties • Organised, systematic attacks/ responses to attacks • Responsible command • Control of territory
War crimes & related SGBV components
• As matter of law, a state of AC exists: • throughout the territory of affected state, incl. in parts of country where there are no hostilities • until general conclusion of peace or decisive and final close of military operations • Distinction between international and non-international AC is very important, depending on jurisdiction in which law is to be applied. Law in relation to international AC is more detailed and comprehensive. Some acts committed in international AC amount to war crimes, while if they are committed in context of a non-international AC they are not war crimes War crimes & related SGBV components
• International AC: involving armed forces of at least 2 states (+ via 1977 AP I: wars of national liberation, including against occupation and racist regimes) • Non-international AC: • Protracted armed conflict between governmental authorities and organised armed groups or between such groups • Excluded are “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” • An AC can be both international and non-international in nature at the same time
War crimes & related SGBV components
• Issue of proxy wars: looks like a civil war, but really is an international AC (too): 3 situations to be distinguished • AC involving local organised armed groups acting on behalf of an external state • AC involving local armed groups that are not organised acting on behalf of external state • AC involving individuals acting on behalf of external state
War crimes & related SGBV components
• Regarding local organised armed groups: “overall-control test” • “The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.” (Emphases added. ICTY, Appeals Chamber, Judgment, Tadic, 15 July 1999) (Also ICC, e.g. Situation in DRC, Case of Lubanga, Trial Chamber I, Judgment, 14 March 2012)
War crimes & related SGBV components
• Regarding non-organised armed groups and individuals: • Law is different from overall-control test • “The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue” (id; emphases added). War crimes & related SGBV components
• Issues regarding non-international AC: • Depending on which treaty applies and/or what applicable customary law is, different definitions of non-international AC may apply; may be very important issue • E.g., compare: • Common article 3 to 1949 Geneva Conventions vs AP II definition • ICC Statute articles 8(2)(c) and (d) on the one hand vs articles 8(d) and (e)
War crimes & related SGBV components
• Prohibited acts/ underlying crimes • Range of prohibited acts against protected persons and property • Each act has its own legal elements • SGBV crimes are included expressly and implicitly, such as: • Torture, inhuman treatment, outrages upon personal dignity that can comprise or include SGBV conduct • Rape • Sexual slavery • Forced pregnancy • Sexual violence
War crimes & related SGBV components
• Protected persons /property • War crimes are committed against protected persons or property • Who is a protected person? What is protected property? • Protected persons and property include: • Civilians; POWs (term only used in international AC); ex-fighters (incl. wounded, sick, detained) • Cultural property; (civilian and military) medical facilities • A civilian who takes direct part in hostilities becomes a legitimate target • When in doubt: presumption that civilian • Village/ town / camp/ place with predominantly civilian population but some fighters/ soldiers/ combatants present: civilian object
War crimes & related SGBV components
• If a particular provision of e.g. a treaty does not provide sufficient guidance on who/what protected person/ property is → must have resort to other relevant sources, incl. (depending on the context) other IHL treaties and customary international law, to give meaning to terms (such as “military objective”, what a “civilian” is; etc). • Example from AP I, where civilian objects are defined as all objects that are not military objectives, and where military objectives are defined as incl. objects which by their nature, location, purpose or use make an effective contribution to military action & whose total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definitive military advantage War crimes & related SGBV components
• Nexus and awareness of AC circumstances: • Prohibited act must have taken place in the context of and was associated with the relevant armed conflict, or be closely related to AC • Possible indicators include: • Did AC play role in ability and decision to commit act? • Did AC play role in manner of crime’s commission? • Did AC play role in purpose for which the crime was committed? • Prohibited acts can be geographically and temporally remote from actual fighting • Perpetrator must have been aware of (factual circumstances constituting) the armed attack
War crimes & related SGBV components
• Other notes on war crimes law: • War crimes can be committed by soldiers, other fighters as well as civilians! • Must read war crimes law alongside law on modes of liability (incl. e.g. aiding and abetting, committing, superior/ command responsibility) in order to get full understanding of the crime • No general international law requirement that a plan or policy to commit war crimes must exist, or that war crimes must be committed on large scale
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• There are several other areas of international law and best practice that are related to the substantive atrocity-crimes law covered earlier and that are of relevance to the investigation, prosecution, trial and redress for SGBV crimes. Some of these issues are referenced in what follows:
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Modes of liability: • Ways in which people can be involved in, participate in crimes (or how law attributes criminal conduct to individuals), ranging from shooter to military commander or political leader far away doing nothing to prevent or punish crime • Specifics of law on modes of liability can differ between jurisdictions (e.g., ICC law in important respects differ significantly from ICTY law, incl. on so-called ‘joint criminal enterprise’ law of ICTY) • As example of international law on modes of liability see ICC Statute articles 25 and 28 OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Grounds for excluding criminal liability (“GECL”), incl. defences such as self-defence: • Specifics of law on GECL can differ between jurisdictions. E.g.: at ICTY and ICTR superior orders cannot be a defence against a charge of atrocity crimes, while at the ICC it can be in relation to (only) war crimes • As example of international GECL, see ICC Statute articles 31-33
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Bars to exercise of criminal jurisdiction: • Examples include bars concerning principle of legality (incl. principles of nullum crimen sine lege and nulla poena sine lege (i.e., no crime or punishment without law) and non-retroactivity; ne bis in idem (double jeopardy); under-age bars; official capacity (immunities); statutes of limitations; and amnesties • Generally, official capacity is not a valid bar to the exercise of criminal jurisdiction in case of atrocity crimes, and statutes of limitations do not apply to such crimes
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Specifics of law on bars to exercise of criminal jurisdiction can differ between jurisdictions • As example of such law, see ICC Statute articles 20, 22-24, 26-27 and 29
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Amnesties: • Whether general international law permits amnesty for atrocity crimes is disputed • Some treaty and other sources of international law outlaw such amnesties, while others permit them or are silent on issue • As far as customary international law is concerned, arguably the correct position is that it does not – yet – outlaw such amnesties OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Law on evidence & procedure, and related legal issues • The law on evidence & procedure and related law can differ between jurisdictions, incl. on important issues such as: • the admissibility of evidence • incriminating and exonerating evidence • disclosure obligations towards the defence, incl. in relation to victims and witnesses of SGBV crimes • victim and witness participation, protection and support, incl. of victims and witnesses of SGBV crimes
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Admissible and inadmissible evidence in relation to sexual assault and similar cases • Examples of SGBV-relevant law on procedure and evidence are selected ICC provisions, such as: • ICC Statute article 68 • ICC Rules of Procedure and Evidence, rules 63(4) (no legal requirement for corroboration of sexual violence crimes); 70 (principles of evidence in cases of sexual violence), 71 (evidence of other sexual conduct) and 72 (in camera procedure to consider relevance or admissibility of evidence); 88 (special measures to facilitate testimony of SGBV victims)
OTHER RELEVANT INTERNATIONAL LAW AND BEST PRACTICE ISSUES
• Law on penalties & reparations • The law on penalties & reparations can differ between jurisdictions • No modern international or hybrid criminal court can impose the death penalty. See e.g. ICC Statute article 77, providing for a maximum of life imprisonment, and the imposition of fines and forfeiture of crime-derived assets, etc. • For example of reparations law of a particular jurisdiction, see ICC Statute articles 75 and 79 and ICC Rules of Procedure and Evidence, rules 94-99
FURTHER READING
Inn additio to the sources referenced earlier, incl. statutes of international criminal and hybrid courts and atrocity-crime relevant treaties such as the Genocide Convention, 1949 Geneva Conventions and their 1977 Additional Protocols, useful further readings include:
• International Criminal Law Services, International Criminal Law & Practice, Training Materials for Bosnia & Herzegovina, Croatia and Serbia, 2011, ICLS—OSCE-ODIHR. [It can be downloaded from the publications page of www.iclsfoundation.org] • Cryer & Others, An Introduction to International Criminal Law and Procedure, 2nd ed, 2010, Cambridge University Press [an updated edition will be published soon] Module 2
Module 2
MODULE 2:
Legal Framework in Bosnia in Herzegovina
Legal Framework in Bosnia in Herzegovina 1
MODULE 2
The legal framework for investigation and prosecution of wartime sexual violence in Bosnia and Herzegovina...... 3 Introduction...... 3 Bosnia and Herzegovina – Constitutional Framework...... 4 Application of International Law in the BiH Constitution: Human rights and fundamental freedoms ...... 4 Applicability of International Courts And Tribunals’ Rules and Jurisprudence in BiH....6 Criminal Codes Applicable to Wartime Sexual Violence Cases...... 9 Wartime sexual violence in the SFRY Criminal Code...... 10 Sexual Violence Offences as War Crimes, Crimes Against Humanity and Genocide in BiH Criminal Code...... 12 National War Crimes Prosecution Strategy...... 15 Definition of Sexual Violence in the Applicable Criminal Codes...... 15 Special Evidentiary and Procedural Rules in Sexual Violence Cases...... 15 Prior Sexual Conduct...... 16 Absence of Requirement to Prove Lack of Consent...... 17 Absence of Requirement for Corroboration of Evidence of Victims of Sexual Violence...... 18 Rape in BiH Jurisprudence...... 19 Rape and other forms of sexual violence against males...... 19 Sexual Slavery in BiH Jurisprudence...... 20 Torture and Other Acts of Sexual Violence in the BiH Jurisprudence...... 21 Rape and Sexual Violence as the Crime Against Humanity of Persecution in BiH Jurisprudence...... 23 Rights and Protection of Witnesses and Victims of Sexual Violence...... 24 The Right of Victims of Criminal Offences to Seek Compensation...... 25
Module 2
The legal framework for investigation and prosecution of wartime sexual violence in Bosnia and Herzegovina
Introduction
This topic of the training module focuses on the specific elements of wartime sexual violence crimes and investigation procedures comprised in the applicable legal framework in Bosnia and Herzegovina (BiH). It is aimed to ensure that war crime investigators in BiH, which currently conduct or will be conducting investigations in criminal cases of conflict- related sexual violence, are provided with a tool that enables a full understanding of the key criminal aspects of these crimes, as well as the legal and evidentiary requirements for how these crimes may be investigated and proved in court. Included are explanations of the most relevant parts of the domestic criminal law – criminal codes relating to war crimes, crimes against humanity and genocide, which are applied in criminal investigations and prosecutions of cases of sexual and gender-based violence committed during the 1992-95 war in BiH. Also, specific operational requirements for gathering evidence of these crimes will be emphasized with reference to the criminal procedural legislation in BiH. For common elements of war crimes and detailed explanations of criminal procedures, war crime investigators are advised to refer to Chapters 3 and 4 of the Manual on Investigation of War Crimes, Crimes against Humanity, and Genocide prepared by the Institute for International Criminal Investigations and OSCE Mission in Bosnia and Herzegovina (War Crimes Investigation Manual or Manual) and training materials titled “Domestic Application of International Criminal Law - Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions”, prepared by ODIHR/ICLS/ICTY/ UNICRI. It should be noted that this topic is presented in a textual format compatible with the materials contained in the War Crimes Investigation Manual, in order to show its complementarity with the Manual. Pertinent excerpts of the Manual are also directly used in this material.
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BOSNIA AND HERZEGOVINA – CONSTITUTIONAL FRAMEWORK
In Bosnia and Herzegovina, the Constitution of Bosnia and Herzegovina (BiH Constitution) is considered a primary source of law. The BiH Constitution provides that international law is a significant source of law in the legal system of Bosnia and Herzegovina. All other state and entity laws adopted by the parliamentary bodies in BiH must be consistent with the BiH Constitution. The Constitutional Court of BiH is competent to deal with any issues concerning the consistency of a law with the Constitution, the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or other laws of Bosnia and Herzegovina (Article VI/3(c)).
Constitution of Bosnia and Herzegovina
Article VI/3 (c):
[T]he Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.
APPLICATION OF INTERNATIONAL LAW in THE BiH CONSTITUTION: Human rights and fundamental freedoms
The protection of internationally recognised standards of human rights and fundamental freedoms is enshrined in Article II/2 of the Constitution of Bosnia and Herzegovina, which provides that “the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocols shall apply directly in Bosnia and Herzegovina” and “shall have priority over all other law”1. The ECHR sets out a general level of human rights protections and, among others, it guarantees the right to life (Article 2), the prohibition of torture, inhuman or degrading treatment or punishment (Article 3), the right to liberty and security (Article 5), the right to respect for private and family life (Article 8), and the prohibition of discrimination (Article 14), all of which can be at stake in cases of wartime sexual violence.
1 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 4: Constitution of Bosnia and Herzegovina (1995).
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The constitutional safeguard of these rights and prohibitions is also included in Article II/3 and II/4 of the BiH Constitution:
Constitution of Bosnia and Herzegovina
Article II/3: Enumeration of Rights
All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include: a) The right to life. b) The right not to be subjected to torture or to inhuman or degrading treatment or punishment. […] d) The rights to liberty and security of person. […] f) The right to private and family life, home, and correspondence. […]
Article II/4: Non-Discrimination
The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Furthermore, the BiH Constitution in Article II/7 and Annex I sets forth a number of international human rights agreements, which are binding in Bosnia and Herzegovina. The most significant agreements for the matter of wartime sexual violence that are listed in Annex I include: • 1948 Convention on the Prevention and Punishment of the Crime of Genocide; • 1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II; • 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; • 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols; • 1979 Convention on the Elimination of All Forms of Discrimination against Women; Some of the most important international instruments for the respect for the rights of victims of conflict-related sexual violence are the 1949 Geneva Conventions I-IV on the Protection of the Victims of War and the 1977 Geneva Protocols I-II, especially Article 27(2) of the Fourth Geneva Convention of 1949; Article 76(1) of Additional Protocol I; Article 4(2)
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(e) of Additional Protocol II; Common Article 3 of the Geneva Conventions; and Article 14 of the Third Geneva Convention. The above-referred constitutional provisions mean that BiH institutions and authorities are obliged to periodically report to the United Nations and other international bodies on the progress in the implementation of these agreements. In relation to conflict-related sexual violence, it is worth noting that the UN Committee on the Elimination of all forms of Discrimination Against Women (CEDAW), in its Concluding observations on the combined fourth and fifth periodic reports of Bosnia and Herzegovina of 30 July 2013,2 and the UN Special Rapporteur on Violence against Women Preliminary Findings of 5 November 12,3 as well as numerous NGOs,4 expressed concerns regarding the lack of progress on the part of BiH authorities to provide adequate judicial and social protection for the victims of wartime sexual violence.
APPLICABILITY OF INTERNATIONAL COURTS’ AND TRIBUNALS’ RULES AND JURISPRUDENCE IN BiH
As explained in the War Crimes Investigation Manual, criminal law is strictly statutory law in Bosnia and Herzegovina. Other sources of criminal law include the constitution and international agreements, which also may be considered a direct source of criminal law. Even though jurisprudence and legal authorities may not be used as a direct source of criminal law, they represent a valuable tool for the implementation of criminal law. In addition to the constitutional position of human rights and freedoms,5 Article II/8 of the BiH Constitution establishes a comprehensive obligation for relevant authorities in Bosnia and Herzegovina to cooperate with any international human rights monitoring mechanisms established for BiH; the supervisory bodies established by any of the international agreements listed in Annex I to this Constitution; the International Tribunal for the Former Yugoslavia (ICTY); and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law. Legal interpretation of these constitutional provisions, taken together with the decisions of the Constitutional Court, leads to the unequivocal conclusion that the judiciary in BiH should rely on international rules and jurisprudence, primarily the rules and practice of the ICTY, International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) when adjudicating war crimes cases, including sexual violence. The courts in BiH have recognised the validity of this conclusion and applied international jurisprudence in their practice. They specifically refer to international jurisprudence relating to general principles of international law, the customary status of certain international law provisions, and the interpretation of international law provisions.6
2 UN Doc. CEDAW/C/BIH/CO/. 3 Available at: http://www.un.ba/novost/10254/un-special-rapporteur-on-violence-against-women-presents-preliminary-findings. 4 See Amnesty International, ‘Whose justice?’ : The women of Bosnia and Herzegovina are still waiting, (30 September 2009) AI Index: EUR 63/006/2009, available at: http://amnesty.org/en/library/info/EUR63/006/2009/en (in English, French, and B/C/S); Impunity Watch, Living in the Shadows: War Victims and Gender-Sensitive Truth, Justice, Reparations and Non-Recurrence in Bosnia and Herzegovina, (August 2012; TRIAL, Written Information for the Adoption of the List of Issues by the Committee on the Elimination of Discrimination of Violence against Women with regard to Bosnia and Herzegovina’s Combined Fourth and Fifth Periodic Reports, (September 2012) available at: http://www.trial-ch.org/fileadmin/user_upload/documents/ CAJ/BH/Alternative_report_CEDAW_Bosnia_-_September_2012.pdf. 5 Explained in the part on Application of International Law in the BiH Constitution: Human Rights and Fundamental Freedoms. 6 The War Crimes Investigation Manual explains in details the reliance of the BiH court on international jurisprudence and academic commentary, among others, it refers to the relevant decision of the BiH Court in the cases of Stupar et al., 1st inst., p. 53 (p. 56 BCS); Zijad Kurtovic, Case No.X-KRZ-06/299, 2nd Instance Verdict, 25 March 2009, ¶¶ 57, 124; etc.
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Even stronger mandates for the BiH courts to rely on the statutes and rules of procedure and evidence of the ICTY and ICC originate from the BiH laws adopted at the state level. In particular, it is important to point out the Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in BiH (BiH Law on Transfer of Cases published in the Official Gazette of BiH, No. 61/04, 46/06, 53/06, 76/06) and the Law on the Application of the Rome Statute of the International Criminal Court (Official Gazette of BiH 84/09). Article 3 of the BiH Law on Transfer of Cases sets out a general principle that evidence collected in accordance with the ICTY Statute and Rules of Proceedings and Evidence (RoPE) may be used in proceedings before the courts in BiH. Under the BiH Law on Transfer of Cases, the following types of evidence may be used in war crimes proceedings in BiH: • Facts established by legally binding decisions by the ICTY (Article 4 of this Law); • Evidence provided to the ICTY by witnesses (Article 5 of this Law); • Statements by expert witnesses made before the ICTY (Article 6 of this Law); • Evidence provided to ICTY officials (Article 7 of this Law); • Documents and Forensic Evidence collected by the ICTY (Article 8 of this Law); In relation to wartime sexual violence, Rule 96 of the ICTY and ICTR RoPE is applicable, which provides:
Rule 96 of the ICTY and ICTR Rules of Procedure and Evidence entitled “Evidence in Cases of Sexual Assault”:
“ In cases of sexual assault: (i) no corroboration of the victim’s testimony shall be required; (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear; (iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence.”
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Article 21 of the Law on the Application of the Rome Statute of the International Criminal Court includes a similar provision that evidence collected and presented by the ICC may be used in criminal proceedings in BiH, only if evidence is collected and/or presented in accordance with the ICC Statute and Rules of Procedure and Evidence. Specific principles that apply to cases of sexual violence regarding consent of victims and corroboration are provided in Rules 70 and 63(4) of the ICC Rules of Procedure and Evidence:
Rule 70 of the ICC Rules of Procedure and Evidence:
“(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; and (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.”
Rule 63(4) of the ICC Rules of Procedure and Evidence:
“Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.”
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CRIMINAL CODES APPLICABLE TO WARTIME SEXUAL VIOLENCE CASES
At present,7 in Bosnia and Herzegovina, war crimes, crimes against humanity and genocide that relate to cases of wartime sexual violence arising out of the conflicts in the former Yugoslavia, are mainly tried under two criminal codes: the Criminal Code of Bosnia and Herzegovina (BiH Criminal Code), passed in 20038, and the Criminal Code of the former Socialist Federal Republic of Yugoslavia from 1976 (SFRY Criminal Code)9. In war crimes cases at the entity/Brčko District level, courts/prosecutors’ offices in the Republika Srpska,10 the Federation of BiH11 and the Brčko District12 generally apply the SFRY Criminal Code as the law, which is more lenient or favourable to the accused.13 At the state level, the Court of BiH and the Prosecutor’s Office of BiH generally apply the BiH Criminal Code in war crimes cases. In March 2009, however, the Court of BiH began applying a new approach, which was to establish on a case-by-case basis which of the criminal codes (BiH or SFRY Criminal Code) was more lenient to the perpetrator.14 It has since applied the 1976 Code to less serious instances of war crimes,15 while it has continued to apply the BiH Criminal Code to more serious war crimes, which were punishable by the death penalty under the SFRY Criminal Code.16 On 18 July 2013, the European Court of Human Rights (ECtHR) issued a judgment in the case of Maktouf and Damjanović v. Bosnia and Herzegovina (Applications nos. 2312/08 and 34179/08), in which it found a violation of Article 7 (1) of the ECHR, clearly stating that the SRFY Criminal Code should have been applied in the applicants’ cases.17 In the Damjanović case, the Court of BiH implemented this judgment and reopened the criminal proceedings, in which the accused persons were sentenced in accordance with the SFRY Criminal Code,18
7 Comprehensive elaboration of prior and present applicability of substantive law is given in the War Crimes Investigation Manual and training materials “Domestic Application of International Criminal Law - Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions.” 8 The BiH Criminal Code is published in the Official Gazette of BiH, Nos. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 8/10. 9 The SFRY Criminal Code is published in the Official Gazette of SFRJ, No. 44/76, corrected SFRJ 36/77. 10 In the Republika Srpska, there are five district prosecutors’ offices and five district courts (Banja Luka, Doboj, Bijeljina, Trebinje and Istočno Sarajevo). 11 In the Federation of BiH, there are ten cantonal prosecutors’ offices and cantonal courts (Una-Sana Canton in Bihać, Posavina Cantona in Orašje, Tuzla Canton, Zenica-Doboj Canton in Zenica, Bosnia-Podrinje Canton in Goražde,Central Bosnia Canton in Travnik, Herzegovina-Neretva Canton in Mostar, West Herzegovina Canton in Ljubuški, Sarajevo Canton and Canton 10 in Livno). 12 The Prosecutor’s Office and the Basic Court of the Brčko District of BiH 13 In a small number of cases, courts in the FBiH have also used the interim 1998 FBiH Criminal Code. For further reference, see OSCE Mission to BiH, Moving towards a Harmonized Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina, (August 2008), available at http://www.oscebih.org/documents/osce_bih_doc_2010122311504393eng.pdf; OSCE Mission to BiH, Delivering Justice, pp. 19; 70-72. 14 Decision X-KRŽ-06/299 of 25 March 2009 in the Kurtović case. 15 Decisions X-KRŽ-09/847 of 14 June 2011 in the Novalić case; X-KRŽ-07/330 of 16 June 2011 in the Mihaljević case; S1 1 K 002590 11 Krž4 of 1 February 2012 in the S.L. case; S1 1 K 005159 11 Kžk of 18 April 2012 in the Aškraba case; and S1 1 K 003429 12 Kžk of 27 June 2012 in the Osmić case. 16 Decisions X-KRŽ-06/431 of 11 September 2009 in the Kapić case; and X-KRŽ-07/394 of 6 April 2010 in the Đukić case. 17 See para 76 of the ECtHR judgment in the case of Maktouf and Damjanović v. Bosnia and Herzegovina (Applications nos. 2312/08 and 34179/08) of 18 July 2013, which, inter alia, states: “This conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code.” 18 On 12 March 2014, the Court of BiH issued appellate verdict in the case v. Goran Damjanović et al., by which the Accused Goran Damjanović and the Accused Zoran Damjanović were found guilty of the criminal offense of War Crimes against Civilians in violation of Article 142 (1) of the Criminal Code of the Socialist Federative Republic of Yugoslavia (CC SFRY) (torture) as read with Article 22 (co-perpetration). The Accused Goran Damjanović is sentenced to 6 years and 6 months imprisonment and the Accused Zoran Damjanović to 6 years imprisonment.
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while the reopening of criminal proceedings in the Maktouf case was objectively prevented due to the fact that the accused is abroad. Following the judgment of the ECtHR, on 22 October 2013, the Constitutional Court of BiH found violations of Article 7(1) of the ECHR in cases of applicants convicted before the Court of BiH for the crimes of genocide and war crimes against civilian populations under the BiH Criminal Code.19 In these decisions, the Constitutional Court of BiH further annulled the second-instance decisions of the BiH Court and ordered urgent issuance of new court decisions in the appellate proceedings.20
Wartime sexual violence in the SFRY Criminal Code
Prohibition of sexual crimes in the SFRY Criminal Code is limited to rape and forcible prostitution as a war crime against civilians. The SFRY Criminal Code includes a provision proscribing war crimes and genocide, but it does not provide for the prosecution of crimes against humanity.21
SFRY Criminal Code 22 Article 142 (War Crimes against Civilians)
Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that the civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering or violation of bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; […] or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty22
The elements of these crimes are not further elaborated. The definitions of genocide (Article 141), war crimes against the wounded and sick (Article 143) and war crimes against prisoners of war (Article 144) do not explicitly criminalize any sexual conduct. However, sexual violence may be implicitly prohibited as torture, inhuman treatment or “causing of great sufferings or serious injury to the bodily integrity or health” under any of the categories of war crimes in the SFRY Criminal Code. Similarly, sexual violence may constitute the underlying acts of genocide of “inflicting of serious bodily injuries or serious disturbance of physical or mental health”. The crime of forced sterilization is implicitly recognized within the underlying act of genocide of imposing measures “intended to prevent births within the group”.
19 AP 503/09 -Nikola Andrun, AP 4065/09 - Slobodan Jakovljević, Aleksandar Radovanović, Branislav Medan i Brane Džinić, AP 4126/09- P.M., AP 116/09 –M.P., AP 2948/09 - Milorad Savić and Mirko Pekez, AP 4100/09- Milenko Trifunović. 20 These cases are currently on appeal before the Court of BiH. 21 See Chapter 16 of the SFRY Criminal Code, entitled “Criminal Acts against Humanity and International Law”. 22 Article 142, SFRY Criminal Code.
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SFRY Criminal Code Article 141 (Genocide)
Whoever, with the intention of destroying a national, ethnic, racial or religious group in whole or in part, orders the commission of killings or the inflicting of serious bodily injuries or serious disturbance of physical or mental health of the group members, or a forcible dislocation of the population, or that the group be inflicted conditions of life calculated to bring about its physical destruction in whole or in part, or that measures be imposed intended to prevent births within the group, or that children of the group be forcibly transferred to another group, or whoever with the same intent commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.
Article 143 (War crime against the wounded and sick)
Whoever, in violation of the rules of international law at the time of war or armed conflict, orders murders, tortures, inhuman treatment of the wounded, sick, the shipwrecked persons or medical personnel, including therein biological, medical, or other scientific experiments, taking of tissue or organs for the purpose of transplanting, causing of great sufferings or serious injury to the bodily integrity or health; or whoever orders unlawful and arbitrary destruction or large- scale appropriation of material, means of medical transport and stocks of medical facilities or units which is not justified by military needs, or who commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.
Article 144 (War crime against prisoners of war)
Whoever, in violation of the rules of international law, orders murders, tortures or inhuman treatment of prisoners of war, including therein biological, medical, or other scientific experiments, taking of tissue or organs for the purpose of transplanting, causing of great sufferings or serious injury to the bodily integrity or health; compulsive enlistment into the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or who commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty. [emphasis added]
With the adoption of the Constitution of BiH in December 1995, the death penalty could no longer be imposed, as it would be contrary to Protocol No. 6 to the European Convention on Human Rights. The SFRY Criminal Code prescribes a minimum sentence of 5 years’ imprisonment and a maximum sentence of 15 years’ imprisonment or death, which could be commuted to 20 years’ imprisonment. As a result, the highest sentence applicable under the SFRY Criminal Code is 20 years. The SFRY Criminal Code does not explicitly provide for a number of forms of sexual violence, which incorporate the highest standards of international law as to the criminalizing and defining of conflict-related sexual violence as war crimes, crimes against humanity and
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genocide, such as: • the crimes against humanity of sexual slavery; • forced pregnancy; • forced sterilization; • persecution (including on gender grounds); • and other acts of sexual violence, such as forced nudity and sexual humiliation. In addition, the SFRY Criminal Code restricted the criminalization of war crimes of a sexual nature to rape and forcible prostitution, thereby omitting to criminalize other forms of sexual violence that may amount to war crimes, including sexual slavery, forced pregnancy, enforced sterilization and “any other form of sexual violence constituting a serious violation of Article 3 common to the four Geneva Conventions”.23
SEXUAL VIOLENCE OFFENCES AS WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE IN BIH CRIMINAL CODE
The provisions of the BiH Criminal Code which proscribe war crimes, crimes against humanity and genocide are set forth in Chapter 17, entitled “Crimes against Humanity and Values Protected by International Law”. The enactment of the BiH Criminal Code followed BiH’s ratification of the Rome Statute of ICC, and the Code significantly incorporates the substantive crimes contained in the ICC Statute in domestic law. Chapter 17 specifically proscribes the crimes against humanity of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity:
BiH Criminal Code
Article 172(1)(g) (Crimes against humanity)
Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity.
23 See Article 8(vi), Rome Statute.
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The BiH Criminal Code also proscribes the crime against humanity of persecution on the basis of gender:
BiH Criminal Code
Article 172(1)(h) (Crimes against humanity)
Persecutions against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or sexual gender or other grounds that are universally recognised as impermissible under international law, in connection with any offence listed in this paragraph of this Code, any offence listed in this Code or any offence falling under the competence of the Court of Bosnia and Herzegovina;
Moreover, the BiH Criminal Code also proscribes rape and forcible prostitution as war crimes:
BiH Criminal Code
Article 173(1)(e) (War Crimes against Civilians)
Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape) or forcible prostitution […]
Similar to the SFRY Criminal Code, sexual violence is implicitly prohibited as torture, inhuman treatment or “causing of great sufferings or serious injury to the bodily integrity or health” under other categories of war crimes in the BiH Criminal Code (Articles 174 and 175).
BiH Criminal Code
Article 174 (War Crimes against the Wounded and Sick)
Whoever, in violation of the rules of international law in the time of war or armed conflict, orders or perpetrates in regard to wounded, sick, shipwrecked persons, medical personnel or clergy, any of the following acts: a) Depriving another persons of their life (murders), intentional infliction of severe physical or mental pain or suffering upon persons (tortures), inhuman treatment, including therein biological, medical or other scientific experiments, taking of tissue or organs for the purpose of transplantation; b) Causing of great suffering or serious injury to bodily integrity or health; […]
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Article 175 (War Crimes against Prisoners of War)
Whoever, in violation of the rules of international law, orders or perpetrates in regard to prisoners of war any of the following acts: a) Depriving another persons of their life (murders), intentional infliction of severe physical or mental pain or suffering upon persons (tortures), inhuman treatment, including therein biological, medical or other scientific experiments, taking of tissue or organs for the purpose of transplantation; b) Causing of great suffering or serious injury to bodily integrity or health; […] [emphasis added]
Sexual violence may also constitute the underlying acts of genocide of “inflicting of serious bodily injuries or serious disturbance of physical or mental health” and the crime of forced sterilization “intended to prevent births within the group (Article 171).
BiH Criminal Code
Article 171 (Genocide)
Whoever, with an aim to destroy, in whole or in part, a national, ethnical, racial or religious group, orders perpetration or perpetrates any of the following acts: […] b) Causing serious bodily or mental harm to members of the group; […] d) Imposing measures intended to prevent births within the group; [emphasis added]
The minimum sentence prescribed by the BiH Criminal Code for genocide, crimes against humanity, and war crimes is 10 years’ imprisonment, while the maximum sentence is 45 years’ imprisonment. However, it should be noted that the BiH Criminal Code’s provisions governing sexual violence crimes as war crimes and crimes against humanity do not entirely comply with international standards. In order for sexual acts to be punishable under the BiH Criminal Code, it is necessary that coercion through force or threat of force has been employed in these acts. These elements contradict the jurisprudence of the international tribunals, which has established that the lack of consent to sexual activity may be established by other means of non-consensual coercion, which are particularly relevant during periods of armed conflict, including fear of violence, duress, detention, psychological oppression, or abuse of power.24 In certain cases, judges of the Court of BiH have found solutions to
24 Prosecutor v. Kunarac, et al., Case No. IT-96-23&23/1, Appeal Judgment (12 June 2002) , para. 130. See also Kunurac Appeal Judgment, para. 129 (clarifying that rather than renouncing the Tribunal’s earlier jurisprudence, the Kunarac definition sought to explain the relationship between force and consent; namely, that force or threat of force is not an element of rape but rather evidence of non-consent). See also Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64, Appeal Judgment (7 July 2007), para. 155, which provided further insight into the Kunarac definition, holding that “the Prosecution can prove non-consent by proving the existence of coercive circumstances under which meaningful consent is not possible” and that in order to do so, the Prosecution need not “introduce evidence concerning the words or conduct of the victim or the victim’s relationship to the perpetrator” or “of force” but that “the Trial Chamber is free to infer non-consent from the background circumstances, such as an ongoing genocide campaign or the detention of the victim”. Kunarac Appeal Judgment, para. 128 (noting that is “wrong on the law and absurd on the facts”).
14 Legal Framework in Bosnia in Herzegovina Module 2 overcome this legislative deficiency, by interpreting the pertinent provisions along the lines of the jurisprudence of the international tribunals.25 Also, the constitutive acts of sexual violence as a war crime against civilians under the BiH Criminal Code are more limited than those provided for in international law. Article 173(1)(e) of the BiH Criminal Code provides only for “sexual intercourse or an equivalent sexual act (rape) or forcible prostitution”, which is significantly restricted in relation to the Rome Statute that sets out analogous underlying acts as those listed in Article 173(1) (g) concerning crimes against humanity.
NATIONAL WAR CRIMES PROSECUTION STRATEGY Annex A of the National War Crimes Prosecution Strategy, which was adopted by the BiH Council of Ministers on 28 December 2008, developed a set of criteria for assessing the gravity of offence, capacity and role of the perpetrator and other circumstances to be used when evaluating the complexity of cases, based on which cases will then be distributed between the Court/Prosecutor’s Office of BiH and other courts/prosecutor’s offices. With regard to sexual violence, one of the criteria for assessing the gravity of the crime provides that severe forms of rape (multiple and systematic rape, establishment of detention centres for the purpose of sexual slavery) should be tried before the Court of BiH.
DEFINITION OF SEXUAL VIOLENCE IN THE APPLICABLE CRIMINAL CODES The provisions of both the BiH and the SFRY Criminal Codes applicable in BiH are gender- neutral, and they do not differentiate between crimes that may be committed against males and females (which might have limited the scope of crimes that can be prosecuted).
SPECIAL EVIDENTIARY AND PROCEDURAL RULES IN SEXUAL VIOLENCE CASES Domestic procedures for collecting evidence and conducting investigations in conflict- related sexual violence cases are regulated in the criminal procedure legislation in force in BiH, including the Criminal Procedure Code of Bosnia and Herzegovina (BiH Criminal Procedure Code),26 the Criminal Procedure Code of the Republika Srpska (RS CPC),27 the Criminal Procedure Code of the Federation of BiH (FBiH CPC),28 and the Criminal Procedure Code of the Brčko District of BiH (BDBiH CPC).29
25 Prosecutor v. Neđo Samardžić, Case No. X-KRŽ-05/49, Second Instance Verdict, 13 December 2006, pp. 2-4, 18 and 24. 26 Criminal Procedure Code of Bosnia and Herzegovina, BiH Official Gazette No. 3/03, 32/03, 36/03, 26/04, 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07, 53/07, 76/07, 15/08, 58/08, 12/09, 16/09, 93/09. 27 Criminal Procedure Code of the Republika Srpska, Official Gazette of the RS No. 53/12. 28 Criminal Procedure Code of the Federation of Bosnia and Herzegovina, Official Gazette of the FBiH No. 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07, 53/07, 09/09, 12/10 and 08/13. 29 Criminal Procedure Code of the Brčko District of Bosnia and Herzegovina, Official Gazette of the BD BiH, No. 10/03, 48/04, 6/05, 14/07, 19/07, 21/07, 2/08 and 17/09.
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PRIOR SEXUAL CONDUCT
Similar to Rule 72 of ICC Rules of Procedure and Evidence, the Criminal Procedure Codes in BiH rule out questioning a victim of sexual violence about prior sexual history.
Article 86(5) of the BiH Criminal Procedure Code Course of the Examination of a Witness (Article 151(5) of the RS CPC, Article 100(5) of the FBiH CPC, Article 86(5) of the BDBiH CPC)
[…]It shall not be allowed to ask an injured party about his sexual experience prior to commission of the criminal offense and if such a question has already been posed, the Court decision cannot be based on such statement. […]
Article 264(1) of the BiH Criminal Procedure Code Special Evidentiary Rules When Dealing with Cases of Sexual Misconduct (Article 279(1) of the RS CPC and the FBiH CPC, Article 264(1) of the BDBiH CPC)
[…] It shall not be allowed to ask an injured party about any sexual experiences prior to the commission of the criminal offence in question. No evidence offered to show the injured party’s involvement in any previous sexual experience, behaviour, or sexual orientation shall be admissible. […]
Evidence obtained through these prohibited questions will be considered unlawful evidence, in contrary to Article 10 (2) of the BiH Criminal Procedure Code,30 and may not be admissible in court. Further reinforcement of inadmissibility of such evidence was provided through Rules on Witness Protection of the BiH Court, “Witnesses in Sexual Violence Cases”, which were adopted by the Plenum of Judges of the BiH Court on 29 September 2008.
Article 19 of the BiH Court Rules on Witness Protection:
In case the witness is a victim of sexual violence, the presiding judge, or judge, shall ensure that direct and cross examination of that witness is in accordance with and within the limits of Articles 86(5) and Articles 264(1) and (3) of BiH Criminal Procedure Code.
30 Equivalent provision is sets in Article 10 of the RS CPC and BD BiH CPC, Article 11 of the FBiH CPC.
16 Legal Framework in Bosnia in Herzegovina Module 2
ABSENCE OF REQUIREMENT TO PROVE LACK OF CONSENT
Comparable with the Rules of Procedure and Evidence of the international tribunals, the BiH Criminal Procedure Code in Article 264 includes a rule governing evidentiary issues in sexual violence cases.
Special Evidentiary Rules When Dealing with Cases of Sexual Misconduct Article 264 of the BiH Criminal Procedure Code (Article 279 of the RS CPC and the FBiH CPC, Article 264 of the BDBiH CPC)
[…] (2) Notwithstanding Paragraph 1 of this Article, evidence offered to prove that semen, medical documents on injuries or any other physical evidence may stem from a person other than the accused, is admissible. (3) In the case of a criminal offence against humanity and values protected by international law, the consent of the victim may not be used in favour of the defence. (4) Before admitting evidence pursuant to this Article, the Court must conduct an appropriate hearing in camera. (5) The motion, supporting documents and the record of the hearing must be sealed in a separate envelope, unless the Court orders otherwise. [emphasis added]
Based on these rules, it is, in principle, admissible to adduce evidence which prove that semen, medical documents on injuries or any other physical evidence may stem from a person other than the accused, but the court is required to conduct in camera hearing to probe relevance and credibility of this evidence before admitting such evidence. Evidence referring to the consent of the victim may not be used in a favour of the defence. The requirement to hold an in camera hearing represents the best practice of international tribunals, which should be fully implemented in court practice. In practice, despite the prohibition on introducing evidence of consent in the defence’s favour, Defence Counsels have attempted to introduce or illicit such evidence in court and such evidence has been admitted. For example, in the Radmilo Vuković case, the first instance verdict illustrated that two defence witnesses gave evidence that the victim and the accused were in a relationship and that the sexual intercourse that occurred was consensual.31 Also, in Pinčić, the Defence was allowed to enter into evidence a statement of the accused, claiming that he has been dating the victim at the time of the alleged crime.32 The four Defence witnesses testified that the accused and the victim had a love relationship.33 In Janković, the Defence, in its closing arguments, argued that the accused did not rape or detain two witnesses but to the contrary “they begged him to stay under his protection”.34 It should also be noted that such evidence was admitted in open, instead of closed session, and without first hearing arguments concerning its relevance and credibility.
31 Prosecutor v. Radmilo Vuković, Case No. X-KR-06/217, First Instance Verdict, 16 April 2007, p. 5. 32 Prosecutor v. Zrinko Pinčić, Case No. X-KR-08/502, First Instance Verdict, 28 November 2008, p. 36. 33 Prosecutor v. Zrinko Pinčić, Case No. X-KR-08/502, First Instance Verdict, 28 November 2008, pp. 3, 16, 33, 36, 41. 34 Gojko Janković Indictment dated 16 February 2007, p. 17.
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ABSENCE OF REQUIREMENT FOR CORROBORATION OF EVIDENCE OF VICTIMS OF SEXUAL VIOLENCE
The international tribunals have adopted a general exception to the requirement of corroboration of witness testimony within the rules for victims of sexual violence at the international level. In contrast to these rules, the BiH Criminal Procedure Code does not contain a provision stipulating that corroboration is not required to prove crimes of sexual violence, provided that the credibility of testimony is ensured. The BiH Court, however, has explicitly acknowledged this principle in a number of wartime sexual violence cases. For instance, in the Marković case, the Appellate Panel of the BiH Court dismissed the Defence argument that the Trial Panel erred by convicting the accused of rape based solely on the statement of the victim. The Appellate Panel found that the Trial Panel “could have convicted the Accused based on the statement of the injured party”, citing the Appellate Panel’s conclusion in the Mejakić et al. case that “[e]vidence that is lawful, authentic and credible, may be considered sufficient to convict an Accused even where its source is a single witness”.35 The Appellate Panel further concluded that the Trial Panel correctly considered the nature of the crime of rape, which “is often committed in front of a rather small number of people or none at all” and is thus difficult to corroborate.36 Correspondingly, in Radić et al. (2011), the Appellate Panel stated that “corroboration is not required in general or in particular” in evaluating the evidence of sexual violence victims “provid[ed] it passes the threshold of reasonableness”.37 In the appellate proceedings in the Pinčić case, the Defence disputed the conclusion of the Trial Panel, which found the victim credible, because no witness corroborated her testimony that “she was forced into the bedroom with a rifle” and that “the Accused threatened to bring fifteen soldiers to the house if she refused to have sex with him”. However, in line with the established ICTY and BIH Court jurisprudence, the Appellate Panel found that corroboration is not required to establish witness credibility.38 Therefore, even though an exception to the requirement of corroboration of witness testimony is not explicitly part of BiH procedural legislation, court practice has established that there is no requirement of corroboration of a victim’s evidence concerning sexual violence.39
35 Prosecutor v. Miodrag Marković, Case No. S1 1 K 003426 11 Krž, Second Instance Verdict, 28 December 2011, para. 72 (citing the Appeal Judgment of the BiH Court in Mejakić et al., para. 47). 36 Prosecutor v. Miodrag Marković, Case No. S1 1 K 003426 11 KrŽ, Second Instance Verdict, 28 December 2011, para. 79. 37 Prosecutor v. Marko Radić and others, Case No. X-KRŽ-05/139, Second Instance Verdict, 9 March 2011, para. 544 (citing the ICTY’s verdict in Prosecutor v. Delalić, et al., (“Čelebići”) Case No. IT-96-21, Trial Judgment (16 November 1998), para. 956, as well as Rule 96 of the ICTY and ICTR Rules of Procedure and Evidence). 38 Prosecutor v. Zrinko Pinčić, Case No. S1 1 K 014434 13 Krž, Second Instance Verdict, 17 December 2013, para. 68 (citing the ICTY’s Dragomir Milošević Appeal Judgment, para. 248). However, the Panel nevertheless considered the issue and dismissed the Defence’s argument on the basis that the Trial Panel could have found the victim’s testimony credible because it was corroborated by the testimony of several other witnesses. Pinčić Appeal Judgment, paras. 68-73. 39 Prosecutor v. Miodrag Marković, Case No. S1 1 K 003426 11 Krž, Second Instance Verdict, 28 December 2011, paras. 72, 79; Prosecutor v. Marko Radić and others, Case No. X-KRŽ-05/139, Second Instance Verdict, 9 March 2011, para. 544.
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RAPE IN BIH JURISPRUDENCE
There are numerous objective and subjective elements of the respective definitions of rape developed by the international tribunals and incorporated in international and BiH law. As previously noted, the crime of rape may be qualified as a war crime, crime against humanity or underlying act of genocide. For instance, in Šimšić (2006), the first BiH Court case to address the elements of rape, the court relied upon the ICTY findings in the Kunarac case, and concluded the actus reus of rape consisted of: […] the sexual penetration, however, slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such penetration occurs without the consent of the victim. Applying identical arguments as in the Kunarac case, the mens rea was found to be “the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim”.40
Rape and other forms of sexual violence against males The BiH Court conducted and concluded criminal proceedings in four cases involving sexual violence against males, out of which two of these cases involved allegations that male victims were forced to perform oral sex on one another.41 Despite the fact this crime has been recognized as rape in the jurisprudence of the international tribunals,42 as well as that of the BiH Court in practice,43 these acts were not qualified as rape in the indictments or assessed as such in the verdicts of the BiH Court. In the Kurtović case (2008), the accused was charged and convicted of war crimes against civilians for forcing two brothers and members of the Croatian Defence Council, who were detained in a church, to strip naked and have oral sex.44 This act was qualified in both the indictment and the Trial Judgment as inhuman treatment and violation of bodily integrity as war crimes against prisoners of war pursuant to Article 175 of the BiH Criminal Code.45 In Lazarević et al. (2008), Lazarević was charged likewise, under command responsibility as the mode of criminal liability, for allowing Serb soldiers to enter a civilian detention camp
40 Prosecutor v. Boban Šimšić, Case No. X-KR-04/05, First Instance Verdict, 1 July 2006, p. 49. 41 See Kurtović, Lazarević et al., Terzić, and Veselinović cases. 42 See, e.g. Furundžija Trial Judgment, paras. 183-185 (holding that “forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity”, that “such an extremely serious sexual outrage as forced oral penetration should be classified as rape”, and accordingly, that the elements of rape include sexual penetration of the mouth of the victim by the penis of the perpetrator). 43 See e.g. Prosecutor v. Zrinko Pinčić, Case No. X-KR-08/502, First Instance Verdict, 28 November 2008, pp. 31-32 (noting that some states treat forced oral penetration as sexual assault while others qualify it as rape and concluding that rape includes “sexual penetration of the mouth of the victim by the penis of the perpetrator”). 44 Kurtović Indictment, p. 3; Prosecutor v. Zijad Kurtović, Case No. X-KR-06/299, First Instance Verdict, 30 April 2008, pp. 45-46. 45 Prosecutor v. Zijad Kurtović, Case No. X-KR-06/299, First Instance Verdict, 30 April 2008, pp. 3-4 (under Article 175(1)(a) and (b), together with Articles 180(1) and 29 of the 2003 Criminal Code. Note that the Appellate Panel requalified the acts as War Crimes against Civilians under Article 142(1) of the SFRY Criminal Code. See Prosecutor v. Zijad Kurtović, Case No. X-KRŽ-06/299, Second Instance Verdict, 25 March 2009, p. 3.
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in Zvornik and force male Bosniac prisoners to perform oral sex on one another. This act was qualified as a war crime against civilians under Article 173(1(c)) of the BiH Criminal Code, which refers to both torture and inhuman treatment.46
SEXUAL SLAVERY IN BIH JURISPRUDENCE
Article 172(2)(c) of the BiH Criminal Code defines enslavement as: […] the exercise of any or all of the powers attaching to the right of ownership over a person, and includes the exercise of such power in the course of trafficking in persons, in particular women and children. This definition does not include specific elements of sexual slavery. The elements of sexual slavery were first established in the Janković case (2007) tried before the BiH Court. Janković was accused of holding a sixteen- and a seventeen-year-old girl captive for over a year in a house that he occupied, where he and Dragoljub Kunarac (who was tried by the ICTY) raped them repeatedly and used them “as sexual and general servants, […] treating them as objects and personal possessions and exercising complete control over their lives”.47 The BiH Court found him guilty of torture and sexual slavery as crimes against humanity.48 In the same case, the Appellate Panel described sexual slavery as: • the intentional exercise of any or all of the powers attaching to the right of ownership over a person; • the perpetrator subjected a victim to sexual intercourse on one or more occasions.49 In the Kujundžić case (2009), the BiH Court defined the elements of sexual slavery in line with international standards, by quoting both the ICC Elements of Crimes, which refers to the perpetrator causing a person to “engage in one or more acts of a sexual nature”, as well as the BiH Court definition in the Janković case, which refers to the perpetrator “subjecting a victim to sexual intercourse on one or more occasions”.50 The accused in this case was charged with holding a 15-year old girl in sexual slavery when “by the use of force and threats he established the exclusive right to dispose of her, the control over her movement, mental control and the control of her sexuality”.51 The indictment qualified these acts as persecution as a crime against humanity in conjunction with the crime of
46 Lazarević et al. Indictment dated 12 September 2008, pp. 2-3, 5. Lazarević was eventually acquitted of inhuman treatment for this act. Prosecutor v. Sreten Lazarević and others, Case No. X-KR-06/243, First Instance Verdict, 29 September 2008, pp. 2-3, 64-66 (convicting Lazarević for this act under Article 173(1)(c), in conjunction with Article 29, 31, 180(2) of the 2003 Code); Prosecutor v. Sreten Lazarević and others, Case No. X-KRŽ-06/243, Second Instance Verdict, 21 August 2009, pp. 4-5 (acquitting Lazarević for this act). 47 Janković Indictment, p. 5. 48 Prosecutor v. Gojko Janković, Case No. X-KR-05/161, First Instance Verdict, 16 Gebruary 2007, pp. 3-4 (under Article 172(1)(f) and (g), in conjunction with Article 29 – co-perpetration – of the 2003 Criminal Code). See also Prosecutor v. Gojko Janković, Case No. X-KRŽ-05/161, Second Instance Verdict, 23 October 2007, p. 15, upholding the Trial Chamber’s finding. 49 Prosecutor v. Gojko Janković, Case No. X-KRŽ-05/161, Second Instance Verdict, 23 October 2007, p. 15. 50 Prosecutor v. Predrag Kujundžić, Case No. X-KR-07/442, First Instance Verdict, 30 October 2009, paras. 512-514. 51 See Kujundžić Indictment, p. 3. See also Prosecutor v. Predrag Kujundžić, Case No. X-KR-07/442, First Instance Verdict, 30 October 2009, para 517.
20 Legal Framework in Bosnia in Herzegovina Module 2 enslavement.52 However, the Trial Panel convicted Kujundžić of sexual slavery as a crime against humanity.53 In the Bundalo et al. case, one of the accused was found guilty on appeal of persecution as a crime against humanity committed through the crimes of imprisonment and rape rather than sexual slavery.54 In the Baričanin case (2012), which involved sexual enslavement, the accused was alleged, inter alia, to have detained a woman in an apartment in Sarajevo’s Grbavica area, where he repeatedly raped her and enabled another person to conduct rape.55 For these acts, he was charged and convicted of enslavement and rape as crimes against humanity, and the indicia of enslavement enunciated by the ICTY in the Kunarac case were considered.56
TORTURE AND OTHER ACTS OF SEXUAL VIOLENCE IN THE BIH JURISPRUDENCE
Article 172(1)(g) of the BiH Criminal Code criminalize sexual violence as a crime against humanity and, inter alia, provides: […] Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to … any other form of sexual violence of comparable gravity. […] Torture is proscribed in the BiH Criminal Code as both a crime against humanity57 and a war crime.58 Article 172(2)(e) of the BiH Criminal Code defines torture as: […] the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under control of the perpetrator except that torture shall not include pain or suffering arising only from, or being inherent in or incidental to, lawful sanctions. Articles 173(1)c), 174(a), and 175(a) of the Criminal Code defines torture as a war crime against protected categories: […]Killings, intentional infliction of severe physical or mental pain or suffering upon a person (torture), inhuman treatment, biological, medical or other scientific experiments, taking of tissue or organs for the purpose
52 Kujundžić Indictment, p. 4 (under Article 172(1)(h), in conjunction with subparagraph (c) and Articles 29 – co-perpetration, 30 – incitement, and 180(1) – individual responsibility of the 2003 Criminal Code). 53 Prosecutor v. Predrag Kujundžić, Case No. X-KR-07/442, First Instance Verdict, 30 October 2009, paras. 551, 555, 557 (under Article 172(1)(g), in conjunction with the modes of liability alleged in the indictment); Prosecutor v. Predrag Kujundžić, Case No. X-KRŽ-07/442, Second Instance Verdict, 4 October 2012, p. 5. 54 Prosecutor v. Ratko Bundalo and other, Case No. X-KRŽ-07/419, Second Instance Verdict, 18 March 2011, pp. 8, 11-12 (under Article 172(1)(h), in conjunction with subparagraphs (e), (g) and Article 29 – co-perpetration – of the 2003 Criminal Code). 55 Baričanin Indictment, pp. 2-3. 56 Baričanin Indictment, p. 3 (under Article 172(1)(c) and (e), in conjunction with Article 180(1), of the 2003 Criminal Code); Prosecutor v. Saša Baričanin, Case No. S1 1 K004648 11 KrI, First Instance Verdict, 9 November 2011, p. 5 and paras. 1, 231, 242, 234, 243. See also Prosecutor v. Saša Baričanin, Case No. S1 1 K 004648 12 KrŽ, Second Instance Verdict, 28 March 2012 (upholding the convictions). 57 Article 172(1)(f), 2003 Criminal Code. 58 Articles 173(1)(c) – War Crimes Against Civilians, 174(a) – War Crimes against the Wounded and Sick; 175(a) – War Crimes against Prisoners of War, 2003 Criminal Code.
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of transplantation, immense suffering or violation of bodily integrity or health. The BiH Court first defined the crime “any other form of sexual violence of comparable gravity” in the Lelek case (2008). The BiH Court relied upon the definition of sexual violence set forth by the ICTY in the Stakić case: “any severe abuse of a sexual nature inflicted upon the integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading to the victim’s dignity”.59 The BiH Court further explained that, “[u]nlike the act of coercing another to sexual intercourse or an equivalent sexual act, the ICTY defines sexual violence as ‘broader than rape and includ[ing] such crimes as … molestation’”.60 Lelek was charged for this conduct with the “perpetration of an act equivalent to sexual intercourse (rape)” under Article 172(1)(g) of the 2003 Criminal Code. However, the Trial Panel found that this conduct instead “contain[ed] the elements of ‘coercing another person by force or by threat of immediate attack upon her life or limb … to [an]other form of grave sexual violence’”. The BiH Court reasoned that “severe sexual violence constitutes a more accurate charge” because “a sexual act equivalent to sexual intercourse implies penetration of a sex organ, an object or some other body part in any part of the victim’s body”, which penetration occurred in this case.61 In the same case, Lelek was charged with participating in the abduction and enforced disappearance of Bosniac civilian men and forcing the wife of one of the men “to strip naked, and to strip her 80 year old mother naked, extorting money from them”.62 The Trial Judgment explained that the wife was also ordered to sit naked on the stomach of her husband, who had been stabbed in the stomach.63 Lelek was convicted of torture for this crime. The BiH Court has applied the Lelek definition of “other forms of sexual violence of comparable gravity” in the Mejakić et al., Pinčić and Radić et al. cases. In these cases, accused persons were charged and convicted of this crime for various sexual acts that do not include sexual penetration. The BiH Court in the Mejakić et al. case concluded that “[s]exual violence is broader than rape and includes such crimes as sexual slavery or molestation”64 In the Pinčić case, the BiH Court noted that “international criminal regulations punish not only rape, but also any serious assault which does not include real penetration. It can be said that the ban includes all serious abuses of a sexual nature carried out against the bodily or moral integrity of a person by using coercion, threat or intimidation in the manner that is degrading and humiliating for the victim’s dignity.”65 In the Radić et al. case, the BiH Court cited the definition of sexual violence set forth in Akayesu, as follows: “‘Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact”
59 Prosecutor v. Željko Lelek, Case No. X-KR-06/202, First Instance Verdict, 23 May 2008, p. 38 and 757 (relying on Prosecutor v. Stakić, et al., (Prijedor). 60 Ibid. 61 Prosecutor v. Željko Lelek, Case No. X-KR-06/202, First Instance Verdict, 23 May 2008, pp. 38-39. 62 Lelek Indictment of 31 March 2008, pp. 2, 4. 63 Prosecutor v. Željko Lelek, Case No. X-KR-06/202, First Instance Verdict, 23 May 2008, p. 27. 64 Prosecutor v. Željko Mejakić and others, Case No. X-KR-06/220, First Instance Verdict, 30 May 2008, p. 203. 65 Prosecutor v. Zrinko Pinčić, Case No. X-KR-08/502, First Instance Verdict, 28 November 2008, p. 32.
22 Legal Framework in Bosnia in Herzegovina Module 2 such as a public display of nudity”, as well as the definition set forth in the Lelek case.66 In the Marković case (2011), the accused was found guilty of rape but not of torture, although he was charged with both counts. The BiH Court noted that under certain circumstances, rape can constitute torture.67 The BiH Court further found that the rape caused the victim “psychological trauma and pain”, and that it was committed with a discriminatory intent, as demonstrated, inter alia, by the fact that the accused knew that the victim was of Croat ethnicity.68 In Lazarević (2008), the accused was found guilty of allowing Serb soldiers to enter a civilian detention camp and force male prisoners to perform oral sex on one another.69 The Appellate Panel found that the accused committed cruel treatment and not torture, by inflicting severe physical suffering on the injured party, that is, inhuman treatment.70
RAPE AND SEXUAL VIOLENCE AS THE CRIME AGAINST HUMANITY OF PERSECUTION IN BIH JURISPRUDENCE
Article 172(1)(h) of the BiH Criminal Code criminalizes persecution as a crime against humanity. Comparable with the Rome Statute, the BiH Criminal Code defines persecution on “political, racial, national, ethnic, cultural, religious, or gender or other grounds that are universally recognized as impermissible under international law, in connection with any [crime against humanity] listed in [Article 172(1) of the BiH Criminal Code], any offence listed in this Code or any offence falling under the competence of the Court of [BiH]”. The BiH Court has established the elements of persecution, based on the definition provided in Article 172(2)(g) of the BiH Criminal Code, as: • An intentional and severe deprivation of fundamental rights; • Contrary to international law; • Against any identifiable group or collectivity; • On political, racial, national, ethnic, cultural, religious, or gender or other grounds that are universally recognized as impermissible under international law; • In connection with any offence listed in [the BiH Criminal Code] or any offence falling under the competence of the BiH Court.71 Accused persons have been indicted and convicted of persecution for sexual violence crimes on the basis of political, racial, national, ethnic, and cultural grounds in a number
66 Prosecutor v. Marko Radić and others, Case No. X-KRŽ-05/139, Second Instance Verdict, 9 March 2011, para. 172. 67 Prosecutor v. Miodrag Marković, Case No. S1 1 K 003426 10 KrI, First Instance Verdict, 15 April 2011, p. 34. 68 Prosecutor v. Miodrag Marković, Case No. S1 1 K 003426 10 KrI, First Instance Verdict, 15 April 2011, pp. 32-33. 69 Prosecutor v. Sreten Lazarević and others, Case No. X-KR-06/243, First Instance Verdict, 29 September 2008, pp. 2-4, 64-66. 70 Prosecutor v. Sreten Lazarević and others, Case No. X-KRŽ-06/243, Second Instance Verdict, 21 August 2009, para 151. 71 Prosecutor v. Željko Mejakić and others, Case No. X-KR-06/220, First Instance Verdict, 30 May 2008, p. 205. See also Prosecutor v. Ratko Bundalo and other, Case No. X-KRŽ-07/419, Second Instance Verdict, 18 March 2011, p. 93.
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of cases before the BiH Court. In only three cases, i.e. Šimšić,72 Radić et al.,73 and Bundalo et al.,74 cases, the persecution was found to have been committed, inter alia, on the basis of gender.
RIGHTS AND PROTECTION OF WITNESSES AND VICTIMS OF SEXUAL VIOLENCE
The protection of witnesses in war crimes proceedings before the courts in BiH is stipulated by the BiH Law on the Protection of Witnesses under Threat and Vulnerable Witnesses (BiH Law on Witness Protection), the RS Law on the Protection of Witnesses under Threat and Vulnerable Witnesses, the FBiH Law on the Protection of Witnesses under Threat and Vulnerable Witnesses and the BDBiH Law on the Protection of Witnesses under Threat and Vulnerable Witnesses. A large number of victims of wartime sexual violence are severely traumatised and considered vulnerable witnesses within the framework of Article 3(2) of the BiH Law on Witness Protection, which provides:
BiH Law on Witness Protection Article 3 (Witnesses under threat and vulnerable witnesses) (Article 3 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses, Article 4 of the FBiH Law on the Protection of Witnesses ) […] (2) A vulnerable witness is a witness who has been severely physically or mentally traumatized by the events of the offence or otherwise suffers from a serious mental condition rendering him unusually sensitive, […][emphasis added]
The majority of sexual violence victims testifying before the BiH Court have been granted protective measures pursuant to the BiH Law on Witness Protection, including: • the removal of the accused from the courtroom75; • testimony via video-link76; • the use of written witness statements in lieu of oral testimony77; • measures to protect the identity of the victim, including allowing the victim to testify from behind a screen, as well as voice and image distortion78;
72 Prosecutor v. Boban Šimšić, Case No. X-KRŽ-05/04, Second Instance Verdict, 7 August 2007, pp. 1-4. 73 Prosecutor v. Marko Radić and others, Case No. X-KRŽ-05/139, Second Instance Verdict, 9 March 2011, pp. 2-13 and paras. 692-693. 74 Prosecutor v. Ratko Bundalo and other, Case No. X-KRŽ-07/419, Second Instance Verdict, 18 March 2011, pp. 5-16. 75 Article 10 of the BiH on the Protection of Witnesses; Article 10 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses; Article 11 of the FBiH Law on the Protection of Witnesses. 76 Article 9 of the BiH on the Protection of Witnesses; Article 9 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses; Article 10 of the FBiH Law on the Protection of Witnesses. 77 Article 11 of the BiH on the Protection of Witnesses; Article 11 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses; Article 12 of the FBiH Law on the Protection of Witnesses. 78 Article 13 of the BiH on the Protection of Witnesses; Article 13 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses; Article 14 of the FBiH Law on the Protection of Witnesses.
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• employing a pseudonym for the witness79; • the non-disclosure of the personal details of the witness for a specific period not exceeding 30 years from the date of the final and binding verdict80; • an additional measure commonly employed is the exclusion of the public pursuant to Article 235 of the BiH Criminal Procedure Code.81 Chapter 4 of the War Crimes Investigation Manual elaborated in details the rights of victims and witnesses and the procedure of application of witness protection measures in war crimes criminal proceedings, which is also applicable in cases of wartime sexual violence.
THE RIGHT OF VICTIMS OF CRIMINAL OFFENCES TO SEEK COMPENSATION
The right of victims of criminal offences to seek compensation in the course of criminal proceedings is preserved in the BiH Criminal Procedure Code. Articles 193-204 within Chapter XVII of the BiH Criminal Procedure Code, entitled “Claims under Property Law”, prescribe a detailed procedure for the treatment of such claims, which may cover both material and non-material damage.82 Pursuant to Article 35 (g) of the BiH Criminal Procedure Code, victims must be informed by the Prosecutor of their right to file a compensation claim, which provides: […] “The injured party being examined as the witness shall be asked about his desires with respect to satisfaction of a property claim in the criminal proceedings.” […] 83 The Prosecutor has a duty to gather evidence in relation to the claim and the BiH Court must decide on the claim if doing so “would not considerably prolong such proceedings”.84 Should the BiH Court determine that adjudicating the claim would considerably prolong the proceedings or that the evidence does not provide a reliable basis for determining the claim in the proceedings, the BiH Court must inform the victim that the claim may be pursued in a civil action.85 In most cases involving sexual violence crimes that were tried before the Court of BiH, sexual violence victims have filed compensation claims within the criminal proceedings.86 As in other war crimes cases at the BiH Court, in each of the sexual violence cases the property claims of the victims were not adjudicated in the criminal proceeding. Instead, the BiH Court referred victims of wartime sexual violence to file property claims in civil proceedings.
79 Article 20 of the BiH on the Protection of Witnesses; the RS Law on Witness Protection and the BDBiH Law on Witness Protection; Article 21 of the FBiH Law on Witness Protection. 80 Article 13 of the BiH on the Protection of Witnesses;Article 13 of the RS Law on the Protection of Witnesses and the BDBiH Law on the Protection of Witnesses; Article 14 of the FBiH Law on the Protection of Witnesses. 81 Article 251 of the RS CPC; Article 250 of the FBiH CPC; Article 235 of the BDBiH CPC. 82 Articles 103-114 of the RS CPC; Articles 207-2018 of the FBiH CPC; Article 193-204 of the BDBiH CPC. 83 Article 43 (e) of the RS CPC; Article 45(g) of the FBiH CPC; Article 35(g) of the BDBiH. 84 See Articles 193, 195, and 197-198 of the BiH Criminal Procedure Code and the BDBiH; Articles 103, 105, 107-108 of the RS CPC; Articles 207, 209, 2011-212 of the FBiH CPC. 85 See Articles 193 and 198 of the BiH Criminal Procedure Code and the BDBiH; Articles 103 and 108 of the RS CPC; Articles 207 and 212 of the FBIH CPC. 86 See, e.g., Baricanin, Bastah et al., Bundalo et al., Markovic, Mejakic et al., Lelek, Lalovic, Pincic, Simsic, and Stankovic cases.
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For instance, in Radić et al., the BiH Court, in addition to reasoning that determining compensation claims would delay the proceedings, concluded that “In any case, the authorized persons may pursue their claims under property law in civil proceedings”.87 In practice, a vast majority of victims of sexual violence do not successfully pursue compensation claims in civil proceedings.
87 Prosecutor v. Marko Radić and others, Case No. X-KR-05/139, First Instance Verdict, 20 February 2009, pp. 256-257; Prosecutor v. Marko Radić and others, Case No. X-KRŽ-05/139, Second Instance Verdict, 9 March 2011, p. 314.
26 Legal Framework in Bosnia in Herzegovina WARTIME SEXUAL VIOLENCE LeGal FrameworK in Bosnia anD HerZeGovina
Content
1. Bosnia and Herzegovina - Constitutional framework 2. Criminal codes applicable to wartime sexual violence cases 3. Sexual Violence offences as war crimes, crimes against humanity and genocide in SFRY and BiH criminal codes 4. Sexual Violence offences in the BiH jurisprudence 5. Rights and protection of witnesses and victims of sexual violence
Constitution of Bosna anD HerZeGovina
Human rights and freedoms
• Article II/3 List of Rights • Article II/4 Non-discrimination • Article II/7 and Anex I • Article II/8
Criminal coDes applicable to wartime sexual cases
• 1976 SFRY Criminal Code • 2003 BiH Criminal Code • At the entity/Brčko District level, courts and prosecutors’ offices in war crimes generaly apply the SFRY Criminal Code • National War Crimes Prosecution strategy • One of the criteria for assesing the gravity of criminal offence of a war crime provides that severe forms of rape (multiple and systematic rape, establishment of detention centres for the purpose of sexual slavery) should be tried before the Court of BiH. Sexual Violence offences as war crimes, crimes aGainst humanity anD GenociDe in SFRY anD BiH criminal coDes
• SFRY Criminal Code • Article 141 (Genocide) • Article 142 (War Crimes against Civilians) • Article 143 (War Crimes against the Wounded and Sick) • Article 144 (War Crimes against Prisoners of War)
• BiH Criminal Code • Article 171 (Genocide) • Article 172(1)(g i h) (Crimes against Humanity) • Article 173(1)(e) (War Crimes against Civilians) • Article 174 (War Crimes against the Wounded and Sick) • Article 175 (War Crimes against Prisoners of War)
Sexual Violence offences in the BiH JurispruDence
• Rape (Šišmić case before the Court of BiH) • Sexual Slavery (Kujundžić case before the Court of BiH) • Torture and other acts of sexual violence (Lelek case before the Court of BiH, Mejakić case before the Court of BiH, Pinčić case before the Court of BiH) • Rape and sexual violence as the crime against humanity (Šimšić case before the Court of BiH, Radić et al case before the Court of BiH, Bundalo et al case before the Court of BiH)
RiGhts anD Protection of witnesses anD victims of sexual violence
• Laws on the Protection of Witnesses under Threat and Vulnerable Witnesses in BiH • Support and protection in investigation of sexual and gender based violence - operational measures • Criminal Procedure Codes in BiH • Procedural protection measure • The right of victims of criminal offences to seek compensation • Property claims - Obstacles Module 3
Module 3
MODUL 3:
Wartime Sexual Violence and Investigation Planning
MODULE 3
Learning Objectives...... 3 Content...... 3 Applicable legal framework...... 3 Geographical or Thematic Approaches to Sexual Violence Investigations...... 4 Modes of Liability...... 4 Incorporating sexual violence investigations into strategic investigation plans...... 5 What prevents sexual violence from being incorporated?...... 6 Strategies for addressing sexual violence and indicators of possible sexual violence events...... 6 Use of Intermediaries...... 11 Sources of information...... 13 Selection of team...... 13 Conclusion...... 13
Module 3
Learning Objectives
The objective of this module is to provide participants with a framework for investigation planning that incorporates an understanding of the place of sexual violence in investigation strategy; and why it has to be included at the outset of an investigation as distinct from something “bolted on” at some later stage.
Content
The module will stress the importance of recognising the potential existence of sexual violence crimes and adopting a proactive stance in regards to establishing strategic, investigative and operational plans. It will address the issue of resistance to the inclusion of sexual violence in investigation strategies and plans, which investigators may encounter. Further, this session will aim to breakdown some of the current stereotypes that attach to proponents of sexual violence investigations – (e.g. it’s only pushed by special interest groups; only women can investigate it; its occurrence is exaggerated by the NGO community, UN Women etc.). The message to weave in throughout the workshop is that sexual violence needs to be normalised within the investigation. It will include discussion of various approaches to sexual violence investigations eg. sexual violence as a thematic approach or sexual violence as an element of a wider investigation.
Applicable legal framework
First and foremost any sexual violence investigation will be governed by the applicable law for the investigation or the body or organisation overseeing the investigation. Any war time investigation needs to pay attention to crimes under the law that applied at the time. Sexual violence is an integral part of the applicable law. In planning an investigation it is good practice to consider and create a written investigation plan that can serve as a point of reference and management tool for all involved in the investigation. Incorporation of a strategy to investigate sexual violence in the plan is imperative. The incidence of this type of crime in conflict situations is almost universal, yet it may be the least obvious at the outset of the investigation. Preliminary research will more than likely bring forward details of events involving murder, destruction, torture and the like. Information on sexual violence events is often (though not always) less readily available – for multiple reasons. This lack of readily available information in turn means that sexual violence may be less “visible”. The investigation strategy must include an examination of situations or factors where people are potentially vulnerable to sexual violence. Those situations then need to be explored. Investigation phases may differ but generally fall under the following headings: • Preliminary research.
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• Preparation of investigation plan. • Investigation or information collection. • Review and report/indictment preparation. • Dissemination. A well-developed investigation plan, prepared on the basis of thorough research, will guide you through each of these phases. Due to inherent difficulties in detecting sexual violence, investigation plans should incorporate guidance as to how to approach sexual violence in each of the phases. At the outset of an investigation investigators who are more familiar with working in a contemporary legal context will need to change their mind-set and approach, as the culture of reporting sexual violence and consequences of reporting it are different in a war time context. For example, in many contemporary investigations it can be extremely difficult to prosecute someone for sexual violence without supporting medical evidence or an early complaint. Neither of these elements is likely to be available where the conduct occurs in the course of an armed conflict – nor is it necessary to prove these elements. Cases at the ad hoc Tribunals clearly demonstrate that sexual violence cases can be proved on the basis of witness testimony – and that superiors can be held accountable without having been present or directly involved.
Geographical or Thematic Approaches to Sexual Violence Investigations
A debate that may arise in determining investigation strategy is whether to take a thematic approach, with dedicated resources looking solely at sexual violence, or a geographic approach including a sexual violence strand in each geographic area examined. In this latter approach, while patterns of conduct may be easier to determine, sexual violence may be less visible because of the overwhelming nature and visibility of mass murders and destruction. This creates a tension between a micro and a macro approach to an investigation. There is a risk that sexual violence crimes will not appear in their proper context if a geographic approach is taken - but with either approach there is a risk of investigators looking to demonstrate something specific – leading the investigations to a particular conclusion instead of more balanced findings. The decision regarding which of those approaches to take cannot be made before undertaking thorough background research and at least some preliminary investigation to determine the likely incidence and nature of sexual-violence-related conduct. With either approach, there is a need to put sexual violence crimes in context. Coordination is key, and the investigation may need to take several approaches. The strategic research needs to be designed to ensure all possibilities are considered.
Modes of Liability Sexual violence crimes are like any other crimes that form part of the crime base – yet many are reluctant to (or think you cannot) charge sexual violence crimes against high- level perpetrators using command or superior responsibility theory, although it would be appropriate.
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It is important to stress, both to prosecutors and investigators, that the same theories of liability apply and you need to look for the same indicators as with other types of crime, e.g. murders or torture. Some of these indicators of high-level involvement include the existence of a pattern of sexual violence during detention, during pillage etc. Is the conduct part of a pattern, or separate incidents? Is there a reason the commander or superior should have known that sexual violence was occurring under their watch and took no action? A typical example of this is when a commander was told that sexual violence was alleged to have occurred but dismissed the allegation summarily or attributed it to out of control elements. What is important is that the investigator knows the modes of liability for crimes within their mandate, the types of evidence that can prove the elements of those crimes, and the type of questions they can ask to get this information. For investigators’ purposes it is also important to identify what conduct constitutes any particular crime.
Incorporating sexual violence investigations into strategic investigation plans
The reasons for inclusion of sexual violence in the investigation strategy are not always obvious at the outset – nor are reasons why you could attribute liability beyond the direct perpetrator. In many cases it is not obvious at the outset that attention to sexual violence needs to be included in the investigation strategy at all. Events such as mass murders, torture and widespread destruction cry out for inclusion in any strategy. Crimes of sexual violence may at first appear less obvious and often remain hidden. Yet it is clear, historically, that sexual violence is used in conflict. Therefore you must ask, “If there is no evidence of it yet, why not?” Incidents involving sexual violence may not come to attention until it is too late for them to be included in an investigation if a proactive stance toward investigating sexual violence is not adopted. Examples exist from Cambodia, Rwanda and the former Yugoslavia, where sexual violence crimes did not come to notice until many years after investigations and in some cases prosecutions and trials commenced. For this reason determining whether sexual violence crimes are alleged to have occurred or could have occurred must form an overt part of investigation strategy. Investigators need to understand the type of conduct they are looking for. They have to understand the different types of information they are looking at; identify who could talk about the conduct and what the relationship of their office to these potential sources is. These questions should be addressed and if possible answered in the investigation plan. With regard to potential sources of information, the investigation plan should address whom the investigation team develops information source relationships with. For example, do you want to have an ongoing relationship with NGOs, journalists etc.? In the research phase that is used to build an investigation plan it can be helpful to look at diplomatic negotiations that led to the establishment of the investigations – were sexual violence issues ever raised? The investigation plan needs to get the point across that sexual violence investigations are not harder once you normalise them. Even if sexual violence is far from obvious at the outset, you need to look for it. If the investigation is tasked to identify or prosecute perpetrators, then information
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collection about the identity, movements, habits and likely whereabouts of potential perpetrators is vital. It is important for several reasons, not least of which is avoiding misidentification and also facilitating detention of perpetrators where possible.
W hat prevents sexual violence from being incorporated?
Many reasons are proffered to explain why sexual violence does not get investigated: • It is perceived to be “difficult” to investigate rape; • It is considered a specialised task, so investigators may not be as comfortable with it; • Investigators coming to these investigations may not have a professional background in sexual violence; • If prioritization in regards to cases to be investigated takes place, cases of sexual violence may be regarded as too time-consuming/complicated and may therefore be placed low on the list;. • A pragmatic prosecutor will often favour the cases where the evidence is more readily available and the theory of liability is less complex. This can lead to sexual violence cases being given lower priority ... etc. It is not uncommon for investigators or prosecutors to observe that sexual violence did not happen in a particular context. This appears to have been the case in Rwanda and Cambodia where mass murder was so egregious that other conduct is overshadowed, yet years later, tangible and reliable evidence of significant sexual violence has emerged and subsequently formed the basis of prosecutions. For example, investigations in Rwanda revealed a pattern of rape and killing. Because of the huge incidence of killing the initial focus was on that aspect.
Strategies for addressing sexual violence and indicators of possible sexual violence events:
In developing strategies for addressing sexual violence in an international investigation there are some key points to address. They include: • Recognising inherent reluctance to inclusion of sexual violence investigations in overall investigation strategy. If you can recognise this and the reasons for it you are in a better position to develop a strategy to address this issue. • Situation background, patterns and pointers to sexual violence. As previously discussed, sexual violence may not be initially obvious. Only after an examination of these elements will you be able to identify pointers to the nature and type of sexual violence that may have occurred. • Sexual violence dynamics. One oft observed aspect of sexual violence events is the power dynamic that operates between the offender and
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the victim. If in an investigation you observe the existence of such power dynamics then further exploration may uncover sexual violence. • Differences between sexual violence and other investigations. It is important to emphasise that sexual violence investigations are not significantly different from other investigations. The same basic sources of information exist – witnesses, victims, crime scenes and forensic evidence, open source materials and intelligence reporting. Today you can add social media to this list. • Cultural issues. These may have a significant impact on your investigation, your witnesses and your access to evidence. Without a thorough understanding of the cultural issues at play your investigation will suffer. • Euphemisms. In many societies people will use euphemisms to refer to sexual acts or sexual violence events. If you do not know and understand them you will miss investigation opportunities. Forming an investigation strategy is an important precursor to any war time events investigation. In a contemporary investigation the strategy may simply be to take a report of an alleged crime and then follow every piece of information to its original source and to its conclusion – is it true, false, improbable, probable or impossible to tell. This type of approach is impractical, unproductive and ineffective in an investigation into widespread incidence of events, occurring over a lengthy period of time in the context of armed conflict or sustained violence. A coherent and comprehensive investigation strategy must be developed together with an investigation plan. It is at this point that the seeds for success or failure are sown. In the case of sexual violence it has often been observed that it is the latter. Investigation of sexual and gender-based violence in conflict and post-conflict environments can differ significantly to practices adopted in contemporary or national jurisdictions. As a starting point, the nature of the crimes themselves is likely to be different. Contemporary sexual violence investigations are likely to be complaint driven and involve either a single incident, or numerous incidents by a serial perpetrator/s or gangs. The model used to investigate these contemporary sexual violence crimes may follow the pattern below: • Complaint • Assessment & support of victim by social worker or psychologist • Medical Examination • Collection of biological and/or trace evidence • Crime scene examination • Statement taken from victim • Interview of potential witnesses and further statements • Identification of perpetrator/s • Arrest and trial
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Compare this to:
SV crimes in conflict and post conflict SV Contemporary Model environments Complaint May or may not be present. Victim may be reluctant or refuse to cooperate because of cultural reasons; safety or security or other concerns. May be multiple victims. May be distrust of enforcement mechanisms. Opportunity for making a complaint may not exist or may not exist until temporally long after the event. Assessment & support of victim by In many instances this type of support is social worker or psychologist not available. There may be reluctance in cooperation between support organisations and investigation authorities.
Medical Examination The opportunity for timely medical examination of victims is often not available. Collection of biological and/or trace Often not available, and if available facilities evidence for storage and analysis may not be available. Crime scene examination May not be possible until long after an event, thereby limiting the value of the examination.
Statement taken from victim Victims may be difficult to identify or be in a position where they refuse or are extremely reluctant to cooperate. Interview of potential witnesses and Events or parts of events may be more public further statements than in a contemporary context, thereby providing a greater opportunity for non-victim witness testimony (e.g.: in a detention camp situation non-victim witnesses may be able to provide testimony as to perpetrator identities and groups, time frames, physical condition of victim before and after event. Identification of perpetrator/s Focus may not be on the individual perpetrator, but rather on proving that an event took place and then identifying links to remote perpetrators using command or superior responsibility theories of liability. Arrest and trial May not be the only type of interventions. Advocacy and public naming may offer alternatives.
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To sum up, the nature of war time sexual violence crimes and the nature of available evidence are different than with contemporary sexual violence crimes. If the war crimes investigator adopts the approach used in contemporary investigations, it is likely the investigation will fail. Instead, the strategy needs to take into account the different nature of events, potentially available evidence and the fact that courts may be prepared to convict in cases where the victim has not made a complaint or does not testify.1 In determining strategy you are not just looking for obvious rape – you need to be looking through a gender lens – being aware that sexual violence will not necessarily be immediately apparent. You need to recognise that in almost every armed conflict it happens. Every conflict is gendered, therefore you need to identify what are the patterns, what the conflict is about. The fact that armed conflict occurred is in itself a flag to look for circumstances where sexual violence could have, may have or possibly occurred. Some potential indicators of incidence of or vulnerability to sexual violence: • Camp or detention situations. • Situations where there is a power imbalance between one group and another or individuals in one group over another. • Situations where women are separated from men. • Situations where the protective structure of the family is broken down e.g.: male householders detained or where female members of a household are left without support, e.g. Nepal – where males ‘disappeared’; Burma where males were taken to labour details for weeks on end. • Situations where there is a protracted presence of armed groups of predominantly one gender. • Children recruited into militia groups. • Forced marriages. • Instances of humiliation of individuals from particular groups (where GBV may be used as a means of humiliation). • Forced labour situations. Investigation strategy needs to include an examination of all forms of media, not only for reported sexual violence during the conflict but also for circumstances that could have provided an opportunity for sexual violence. For example, camp situations, situations, namely where women are separated from men and then guarded by men. The media portrayal of the conflict is important, but it must be remembered that newspaper reports might show only the tip of the iceberg. For example, in the Democratic Republic of Congo, sexual violence has now been widely reported, while conversely, in Kenya’s post-2007 election violence it was not – leading to findings that sexual violence may not have been a factor in this conflict. Subsequent more detailed investigations show that sexual violence did occur in Kenya on a widespread basis. There is a need to include a proactive strategy of interviewing women as witnesses – particularly in societies that are male dominated. There are indicators that at least at one international tribunal only about 25% of witnesses are female, yet they make up a far
1 Bagosora et al. Trial Judgement, paras. 1908, 1920-1924. In the Bagosora et al. case, evidence of rapes and sexual violence crimes was elicited through witnesses who were not necessarily victims themselves. In that case, almost every witness was asked to relate what they saw with respect to the occurrence of sexual violence crimes. The Trial Chamber found that sexual assaults occurred at civilian roadblocks in Kigali on the basis of the evidence of General Dallaire and Major Brent Beardsley who testified about what they saw at the roadblocks. No victim of sexual violence at these roadblocks was called in this trial.
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higher percentage of the population. Is this because it is easier to identify male witnesses in a patriarchal society? It also appears that many interviews with women were frequently about what happened to their husbands/sons/brothers. Yet, female witnesses can provide information about much more than this. They are just as likely to have observed illegal conduct and the perpetrators and to provide information that satisfies proof of many of the elements of war time crimes. Over and above male witnesses, though, they may well have a greater sensitivity to sexual violence situations, have access to female victims and witnesses and be able to provide better evidence to prove sexual violence violations. By approaching them in a holistic way, as a potential witness to all aspects of alleged war time crimes, the opportunity to gather evidence of sexual violence crimes is significantly increased. Detention anywhere is a red flag, as there is a particular power dynamic in that situation – camp officials at all levels have an inordinate amount of power over detainees. This provides an environment where sexual violence can and does flourish. For males it may be sexual humiliation in front of their peers such as being forced to perform sexual acts on another male. For women it can be a wide range of conduct from rape, indecent assaults, forced nakedness, sexual slavery or being placed in a forced marriage. The common factor for both males and females is that as a camp detainee they are in no position to resist the behaviour or the power exercised over them by camp officials. One advantage of developing a case related to a detainee or camp situation is that potentially there may be many witnesses and one witness does not have to bear the burden of testimony alone. Many examples of sexual violence in a camp context have been public. In others, although not public, fellow detainees have been able to observe the physical condition of an alleged victim, before and/or after the sexual violence has taken place, and give solid corroborative evidence to support victim testimony. Investigators of international crimes report that it is harder to get information regarding sexual violence in village settings. Societal and cultural factors may inhibit victims or witnesses from coming forward. The approach to investigating sexual violence depends on a cultural analysis of gender issues in that particular society. In some cultures there exists an almost invisibility of women that will make gathering evidence of sexual violence against them extremely difficult. Knowing and understanding local expressions in relation to sexual violence (“They took me and I became his wife”) are crucial. If there is a reluctance of witnesses to talk about sexual violence it is necessary to pinpoint the source of the reluctance. For example, investigations in Sierra Leone initially contained no discussion of sexual violence by government forces in the Sierra Leone conflict; only after several missions by investigators to various villages did this evidence emerge. Cultural issues need to be taken into account, e.g. in Nepal, where rapes of lower caste people by higher caste was already common, but increased during conflict. The fear of investigating often comes from a fear of re-traumatising victims, creating security concerns, or the belief that victims do not want to talk about their experiences. These fears should not be treated as bars to investigation but rather as obstacles to investigation that can be overcome by a well thought-out investigation strategy supported by practical operational procedures.
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Preparation of an investigation strategy is normally informed by detailed research of existing information. In this research, do not overlook a gender analysis of background information – determining the cultural norms will be important. For example, such research in Rwanda tells us that Tutsi women were prized for their beauty and resented for it. In Sierra Leone forced marriage hid the incidence of sexual violence. This research did not initially portray cases of sexual violence – rather, it showed indicators that needed to be explored to determine whether sexual violence had occurred. Though much of the foregoing discussion has focused on sexual violence directed against women, many of the same indicators can be used to assess the likelihood of sexual violence against men. The investigation strategy must address this aspect.
Use of Intermediaries
Safety and security, cultural concerns and problems regarding access may dictate that intermediaries are used to identify, locate and facilitate the interview of victims and witnesses. This can be a problematic area for investigations as, if not handled properly, the use of intermediaries can give rise to allegations of witness tampering, concoction of evidence, contamination of evidence and a range of inappropriate behaviours. In particular there is a need to guard against organisations or individuals who may want to improperly influence the investigation or witnesses. For example, during a fact-finding mission in Guinea in 2010, each opposition group wanted to bring its “own” witnesses. The investigation had one team of investigators listening to the witnesses put forward to them, then another two teams independently investigating in the villages. It is important to remember this, and to put in place safeguards for dealing with intermediaries. Most official investigation bodies have guidelines to cover these activities. In most environments you have to use intermediaries. There are many different levels and types of intermediaries. Some are more beneficial than others. They range from those who actually provide information to those who are a contact point for others. Often individuals may flow from one category to the other. Some of the factors you will need to consider include: • Ensuring there is no fiduciary relationship with intermediaries that could impact evidence. • How to maintain confidentiality of information (meeting times, locations) when the intermediary also has access to the information. • The need to investigate the intermediary. • At some point the intermediary can become a witness. You need to consider how the nature of the relationship, and how it started, can compromise the evidence they can provide. Examples of people used as intermediaries include: • Human rights defenders. • Reputable NGOs. • Reputable civil society groups. • Contacts you make when you arrive in the field.
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• Organisational intermediaries – e.g. OHCHR. • Fixers/individuals. • Neighbours/friends. • Health workers, psychologists, midwives. • Women’s groups/victims’ groups. • State authorities/intelligence agents. • Camp leaders in refugee camps etc. Is there a difference in how you use intermediaries in sexual violence cases compared to other cases? Not really. In sexual violence investigations, you are more likely to need intermediaries because of cultural pressures on witnesses – it can be harder to get access to witnesses. If you cannot go directly to where a witness is located because you are too visible/public, an intermediary might go as your representative. Health workers, midwives, teachers, female community leaders are often extremely useful and sometimes powerful intermediaries. You will need to consider how much information you provide them in order to gain access to witnesses. Your initial research on an intermediary needs to address questions such as their motivations, credibility and reliability, how they will represent you as an individual. Ultimately it is a judgment call on how much you can trust an intermediary.
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Sources of information
In planning your investigation you need to consider: • Information that is currently available • Information that needs to be collected • Information which needs to be authenticated By the time you come to complete this part of your plan, hopefully you will have carried out sufficient background research to identify the information you have and your information gaps. Consideration of the particular events to investigate and who you propose to investigate will also provide guidance as to the type of information that needs to be collected.
Selection of team
For any investigation it is important to select an appropriately skilled team to conduct the investigation. The investigation plan should consider the type of expertise needed for the particular investigation and who has been assigned to fulfil the roles related to that expertise. Think also of interpreters, gender diversity and team dynamics. Most importantly, once the team is selected, it is important to document who is responsible for particular tasks, aspects or parts of the investigation and list those responsibilities in the investigation plan.
Conclusion
Developing an effective investigation strategy and preparation of an investigation plan are vital elements of any investigation into war time violence. For incidents of sexual violence this is equally the case. There are many examples of situations where sexual violence incidents have not been properly considered or investigated. Often this is because the events were not obvious at the outset or insufficient investigative resources have been directed toward those events. Addressing sexual violence from the outset and including how it will be addressed in the investigation plans are crucial factors in effective war time sexual violence investigations.
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STRATEGIC PLANNING
“What we know about wartime violence depends greatly on the choices we make in designing our investigations.”
Michelle Leiby “The Promise and Peril of Primary Documents: Documenting Wartime Sexual Violence in El Salvador and Peru”
OBJECTIVE
• To provide a framework for investigation planning • Understanding the place of sexual violence in investigation strategy • Demonstrate why it has to be included at the outset of an investigation as distinct from something “bolted on” at some later stage. • Explore how sexual violence can best be included in investigation strategy from the outset? (sexual violence red flags, vulnerable situations etc. to look) INTRODUCTION – DEFINITIONS
• ‘Sexual Violence’ and ‘Gender-based Violence’ used inter-changeably. • No single or universal definition of gender-based or sexual violence. • Understanding differs according to country, community and legal context.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
“GENDER-BASED VIOLENCE”
• Used to distinguish violence that targets individuals or groups of individuals on the basis of their: • Sex • Gender or • Their gender roles, from other forms of violence.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
“SEX”
• Sex refers to those characteristics that are biologically determined. They do not change.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
INVESTIGATION PHASES
• Preliminary research. • Preparation of investigation plan. • Investigation or information collection. • Review and report or indictment preparation. • Dissemination. Investigation plans should incorporate guidance as to how to approach sexual violence investigations in each of the phases. PRELIMINARY RESEARCH
• Sexual violence in armed conflicts is almost universal • May be least obvious at the outset – compared to mass killings, torture, destruction and detention camps • Information on sexual violence is often less readily available (though not always) • Ideas on where to start?
A FEW IDEAS
• Print media (try Lexis Nexis, use the organisation’s resources e.g. library) • Contemporaneous TV footage • Social media • NGOs • Organisation experts • Embassies • Look at diplomatic negotiations that led to investigations – were sexual violence issues ever raised?
“RED FLAGS” OR INDICATORS
• If there is no suggestion of sexual violence in preliminary research, why not? • Look for indicators of where it might be likely to have happened • Ideas?
SEXUAL VIOLENCE “RED FLAGS”
The following situations are considered indicators or “Red Flags” for sexual violence: • A power imbalance or dynamic exists between the offender and the victim. • Situations when men and women are separated from each other • Situations where the protective nature of the family is broken down • Protracted presence of armed groups among/near civilians • Children recruited into militia groups • Forced marriages • Instances of humiliation of individuals from particular groups (where ender based violence may be used as a means of humiliation). • Forced labour situations • Torture or other ill treatment WRITTEN INVESTIGATION PLAN
• Point of reference for all involved in the investigation • Management tool (especially for inexperienced investigators). • Guides logistics • Sexual violence needs to be integral to the wider investigation plan.
INCORPORATING SEXUAL VIOLENCE INTO INVESTIGATION STRATEGY.
• In many cases it is not obvious at the outset that attention to sexual violence needs to be included in the investigation strategy at all. • Events such as mass murders, torture and widespread destruction cry out for inclusion in any strategy. • Crimes of sexual violence may be less obvious and often remain hidden. Ask, “If there is no evidence of it yet, why not?”
WHAT PREVENTS SEXUAL VIOLENCE FROM BEING INCORPORATED?
The perception that: • It is too difficult to investigate rape; • It is a specialised task; • Investigators do not have the expertise; or • Case prioritization may mean cases of sexual violence, that are regarded as too time- consuming/complicated may be placed low on the list and priority given to cases where the evidence is more readily available.
STRATEGIES FOR ADDRESSING SEXUAL VIOLENCE
• Recognising inherent reluctance to inclusion of sexual violence investigations in overall investigation strategy. • Ensuring consistency between sexual violence & other investigations. • Cultural knowledge / understanding. • Awareness of commonly used euphemisms. • All members of investigation need to be sensitised to potential incidents involving sexual violence • Deal with competition between interested groups: • Cooperate and coordinate • The sexual violence investigator needs to be competent in most other aspects of the investigation. • Linkage to command levels is a challenge to sexual violence investigations. • Need to ask the right questions, look for patterns. • Perhaps more emphasis on insiders. WHAT THE PLAN NEEDS TO COVER
Information that is currently available Information that needs to be collected • What to investigate • Who to investigate Information which needs to be authenticated Who is doing what
KNOW THE GOAL
• If prosecutions, it is all about the evidence and gathering it in a useable way. • Agree the format for testimony • Where rules of evidence not clear, assume highest standards required. AGREE THEM • Can you collect forensic evidence? Preserve or simply record?
CONTEMPORARY –V– WAR TIME INVESTIGATION MODELS
• The nature of the crimes is different and • The nature of available evidence is also different. • If the sexual violence investigator adopts the approach used in contemporary cases, it is likely the investigation will fail.
CONTEMPORARY INVESTIGATION MODEL
• Complaint. • Assessment & support of victim by social worker or psychologist. • Medical examination. • Collection of biological and/or trace evidence. • Crime scene examination. • Statement taken from victim. • Interview of potential witnesses and further statements. • Identification of perpetrator/s. • Arrest and trial. WAR TIME INVESTIGATIONS – COMPLAINT
• May or may not be present. • Victim may be reluctant or refuse to cooperate because of cultural reasons; stigma; safety or security or other concerns. • May be multiple victims. • May be distrust of enforcement mechanisms. • Opportunity for making a complaint may not exist or not until temporally long after the event.
WAR TIME INVESTIGATIONS – MODEL
• No obvious complainants • Victim reluctant or refuses to cooperate • Multiple victims. • Distrust of enforcement mechanisms. • Limited psycho-social support systems • International groups may not cooperate with investigations THE PLAN NEEDS TO ADDRESS THIS
WAR TIME INVESTIGATIONS – PSYCHO SOCIAL ASSESSMENT
• In many instances this type of support is not available. • There may be a reluctance in cooperation between support organisations and investigation authorities
WAR TIME INVESTIGATIONS – VICTIM STATEMENTS
• Victims may be difficult to identify, or • Be in a position where they refuse or are extremely reluctant to cooperate • Alternatively, there may be multiple victims thus more opportunity to get statements
WAR TIME INVESTIGATIONS – MEDICAL / FORENSICS
• Timely medical examination of victims is not often available • Trace evidence is often not available • Limited facilities to collect, secure and store • Crime scene examination may not be possible until long after an event THE PLAN NEEDS TO ADDRESS THIS WAR TIME INVESTIGATIONS – WITNESSES
• Events or parts of events may be more public than in domestic context, thereby providing a greater opportunity for non-victim witness testimony (e.g.: in a detention camp situation non-victim witnesses may be able to provide testimony as to perpetrator identities and groups, time frames, physical condition of victim before and after event). • Events may be more public than in domestic context - greater opportunity for non-victim witness testimony • Fellow detainees (perpetrator identities and groups, time frames, physical condition of victim before and after event). • Journalists • Doctors • Military medics • Local healers • Abortion clinics (if some time after)
WAR TIME INVESTIGATIONS – PERPETRATORS
• Focus may not be on individual perpetrator – rather on proving event took place and then identifying links to remote perpetrators using command or superior responsibility modes of liability • Do we look for lower level perpetrators as potential witnesses?
WAR TIME INVESTIGATIONS – MODES OF LIABILITY
• The same theories of liability apply as for other international crimes. • You need to look for the same indicators as with other types of crime e.g. murders or torture.
WAR TIME INVESTIGATIONS – INDICATORS OF HIGH LEVEL INVOLVEMENT
• The existence of a pattern of sexual violence during detention, during pillage etc. • Other conduct that is part of a pattern • Systematic nature - high incidence of crimes as possible indicator of coordination • Existence of reasons the commander or superior should have known that sexual violence was occurring under their watch and took no action. “…no action to prevent or report/punish
WAR TIME INVESTIGATIONS –
• Typical examples of this are superiors or commanders who when told that sexual violence is alleged to have occurred dismiss the allegation summarily or attribute it to out of control elements. KNOW THE CULTURAL CONTEXT
• Cultural knowledge / understanding. • Nepal: rapes of lower caste people by higher caste were already common, but increased during conflict. • Rwanda: Tutsi women were prized for their beauty and resented for it. • Sierra Leone and Cambodia: forced marriage hid the incidence of sexual violence. • Look for the euphemisms: Examples?
FACTOR INTO THE PLAN
• Will there be enough time to develop the trust necessary to have effective interviews with female victims in a very conservative society? • How to do it? • Are there likely to be male victims? • May be much greater ability to locate male victims of sexual torture in detention than female victims • Victim/Witness protection • Support mechanisms and planning for specialist support intervention. • IT ALL GOES IN THE PLAN
CHALLENGES
• Perpetrators may be in powerful positions in relation to investigators e.g. armed militias • Political interference • Limited logistics, difficult security conditions • Heavy reliance on other people/agencies
THE POINT IS:
• The nature of the crimes is different and • The nature of available evidence is also different. • The strategy needs to take into account the different nature of events; potentially available evidence and the fact that internationalised courts may be prepared to convict in cases where the victim has not made a complaint or does not testify.
THE GOOD NEWS
• International courts may be prepared to convict in cases where the victim has not made a complaint or does not testify. • Concept of ‘joint criminal enterprise’. USE OF INTERMEDIARIES
Some of the factors you will need to consider include: • Ensuring there is no fiduciary relationship with intermediaries that could impact evidence • How to maintain confidentiality of information • Need to investigate intermediary • Need to keep records of dealings with intermediaries • At some point the intermediary can become a witness. You need to consider the nature of and how the relationship started as this can compromise the evidence they can provide.
INTERMEDIARIES – EXAMPLES
• Human rights defenders • NGOs (including human rights NGOs, women’s NGOs), • Civil society groups • Organisational intermediaries – e.g. OHCHR • Neighbours/friends • Health workers, psychologists, midwives • Fixers/individuals
INTERMEDIARIES
Factors to consider: • Any payments to intermediaries that could impact evidence • How to maintain confidentiality of information • Need to investigate bona fides of intermediary • Need to keep records of dealings with intermediaries • At some point the intermediary can become a witness. You need to consider the nature of the relationship as this can compromise the evidence they can provide. • You may face allegations of witness tampering, concoction of evidence, contamination of evidence.
PREPARING AN INVESTIGATION PLAN
Plan needs to consider: • Actions to build trust in victim/witness community (even before “Do no harm” considerations). • Identification of support mechanisms and planning for specialist support intervention. GEOGRAPHICAL OR THEMATIC APPROACHES
• There is a risk that sexual violence crimes will not appear in their proper context if a geographic approach is taken • With either approach there is a risk of investigators looking to show a particular thing – leading the investigations to a particular conclusion instead of more balanced findings.
CONTEXT
• With either approach, there is a need to put sexual violence crimes in context. • Coordination is key and the investigation may need to take several approaches.
PREPARING AN INVESTIGATION PLAN
• Useful to follow a template, provided you remember that the suggested headings may not be applicable in every circumstance, and that additional headings may be necessary in some circumstances. • INVESTIGATION PLAN TEMPLATE
RULES
1. If you don’t know much about investigating sexual violence, find some people who do 2. Integrate them into the plan - know what they are doing 3. Make sure they know what everyone else is doing. In international contexts, sexual violence doesn’t happen in isolation. 4. If you ever need to think about it, stick it in the plan
REMEMBER
“At every stage, reassess the plan and modify it if necessary!”
? Module 4
Module 4
MODULE 4:
Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
Introduction ...... 3 Chain of custody...... 5 Basic components for the collection and retention of evidence...... 6 Collecting evidence ...... 7 Investigator’s notes...... 7 Crime scene sketch ...... 8 Video/photographic recording of scene/collection of evidence...... 8 Photography (Still)...... 9 Treat Photographs and Videos as Evidence...... 10 Large-Scale Crime Scenes and Minimal Resources...... 12 Information Handling...... 12 Assessment...... 13 Minimum Requirements for Treatment of Sites...... 13 Debriefing and Comparison of Information...... 14 What is sexual violence physical evidence?...... 14 Evidence handling procedures...... 15 Maintaining the Chain of Custody...... 15 Packaging...... 15 Labelling...... 15 Seizure of documents...... 16 Audio and Video Memory Cards...... 16 Computer Equipment...... 16 Clothing ...... 17 Ballistics and trace metals...... 17 Firearms...... 18 Photographing Victims or Suspects...... 18
Module 4
Introduction1
The principles of collection of physical evidence in criminal investigations differ little from jurisdiction to jurisdiction, however the practices and procedures used vary greatly. Further, few in a national jurisdiction will encounter a crime scene of the scale experienced in war crimes investigations. Nor will they be likely to have experienced the severe resource limitations and hazardous environment they will be confronted with. This chapter focuses on two areas. The first will provide guidelines to be followed by investigators when searching for and seizing evidence. The second area gives guidance for decision-making when confronted with large-scale crime scenes and minimal resources. It should also be noted that the collection of evidence in criminal procedure legislation in BiH is not governed by any formal rules. Article 15 of the BiH CPC provides for the general principle for evaluating the evidence collected in criminal proceedings, which also implicates the manner of evidence collection and its admissibility in court. Evaluation of evidence in domestic proceedings is performed on the basis of a free evaluation of the evidence, which is a general principle involving the application of the rules of logic. In deliberating whether a certain fact is proven or not, courts in BiH are obliged to carefully assess every piece of evidence individually and taken together with all other evidence and reach a conclusion on proving the relevant facts of the case and accepting the evidence presented to the court.2
Article 15 of the BiH CPC (Article 15 of the RS CPC and the BDBiH CPC, Article 16 of the FBiH CPC) Free Evaluation of Evidence
The right of the Court, Prosecutor and other bodies participating in the criminal proceedings to evaluate the existence or non- existence of facts shall not be related or limited to special formal evidentiary rules.
1 The content of this module’s narrative is based on Chapter 8 of the Investigation Manual for War Crimes, Crimes Against Humanity and Genocide in Bosnia and Herzegovina. The material has been modified for the purpose of this module. 2 Commentary of the BiH CPC, p. 76.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 3 Module 4
In relation to the admissibility of evidence in war crimes cases, the Law on the Transfer of Cases from the ICTY to the BiH Prosecutor’s Office and the Use of Evidence Collected by the ICTY in Proceedings before the Courts in BiH (BiH Law on Transfer of Cases) regulates the admission of evidence from the ICTY.3 The BiH Law on Transfer of Cases in Article 3 sets out a general rule concerning the admissibility of evidence.
Article 3 of the BiH Law on Transfer of Cases
General Principle (1) Evidence collected in accordance with the ICTY Statute and Rules of Procedure and Evidence may be used in proceedings before the courts in BiH. (2) The courts shall not base a conviction of a person solely or to a decisive extent on the prior statements of witnesses who did not give oral evidence at trial.
The following types of evidence collected by the ICTY may be admissible in BiH courts: • Facts established by legally binding decisions by the ICTY;4 • Evidence provided to ICTY by witnesses;5 • Statements by expert witnesses made before ICTY;6 • Evidence provided to ICTY officials;7 and • The rule governing the authentication and/or certification of electronic copies of documents and forensic evidence collected by the ICTY and their use in proceedings before the courts in BiH.8 Further, depending on the status of the case, the national jurisdiction may also apply. These guidelines are prepared with reference to the ICC Statute. Investigators should ensure, however, before embarking on an investigation, that they are familiar with the laws and particular Rules of Procedure and Evidence applicable to the investigation. Along with testimonial evidence obtained from witnesses, physical evidence is the basis of any truly successful investigation. Physical evidence collected from crime scenes, general areas, victims and suspects and their clothing or equipment, can provide corroboration of witness or victim accounts as well as clarification of what actually happened. There are as many types of physical evidence as there are ways of collecting it. When possible, full use should be made of appropriate experts. Science and technology improvements present new opportunities to the investigator. Blood or other bodily fluids collected only a few short years ago might never have been used to link an offender to the crime or victim. Now the use of DNA technology is an almost routine aspect of crime
3 Law on the Transfer of Cases from the ICTY to the BiH Prosecutor’s Office and the Use of Evidence Collected by the ICTY in Proceedings before the Courts in BiH, Official Gazette of BiH, No. 61/04, 46/06, 53/06, 76/06. 4 Art. 4 of the BiH Law on Transfer of Cases. 5 Art. 5 of the BiH Law on Transfer of Cases. 6 Art. 6 of the BiH Law on Transfer of Cases. 7 Art. 7 of the BiH Law on Transfer of Cases. 8 Art. 8 of the BiH Law on Transfer of Cases.
4 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4 scene investigations. Effectively anything that can be collected, measured or examined may prove to be valuable evidence. The major points to consider in the collection and handling of evidence are: • Protection of the evidence to be collected; • Recording of the evidence prior to any disturbance by the investigative team; • Documentation of the collection process, including the unique identification of all items collected; • Creating and ensuring a strong documentation of the handling, transportation and storage of the items collected, also known as “chain of custody” or continuity.
Chain of custody For a physical exhibit to be accepted in a tribunal or court and given the highest value or weight by that court, an unbroken chain of custody is essential. For the court to accept the item you must be in a position to prove that the item was indeed that which was taken from a particular person or place. This proof is provided by written or oral testimony, which identifies the item as having been taken from that person or place, and tracing custody of the item from the time it was taken until it is presented in evidence. This latter evidence is necessary to avoid any claim of substitution or tampering. It must also be shown that the item was correctly secured and stored to prevent accidental or deliberate tampering or contamination. Chain of custody is essentially a document or a record of the collection and handling of the item from start to present. It is most often represented by a table of signatures, receiver to receiver, accompanied by the purpose of the transfer, date/ time and signatures of the parties involved. This chain of custody document or form may accompany the item itself but should reflect every change of custody or control of the item. It is important however to note that the chain of custody document does not become the focus of the chain - it is simply the record of the status of the evidence. The evidence itself is the thing which must be controlled and protected.
Example of a Chain of Custody Form: EVIDENCE MOVEMENT REGISTER (or CHAIN OF CUSTODY REGISTER)
ITEM # DATE/TIME RELEASED BY RECEIVED BY REASONS FOR (name/signature) (name/signature) MOVEMENT
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 5 Module 4
Basic components for the collection and retention of evidence Set out below are basic principles regarding the collection and retention of evidence: • Protect the evidence. This effectively means what it says. This may be as simple as taping off an area so the scene will not be disturbed, or covering footprints and tire tracks to protect them from the rain; • Evidence should be photographed or video recorded in situ before collection begins, if possible. The location and position of the evidence should also be recorded in diagrams and notes; • Evidence should be collected in a formalized and systematic manner. The method of collection may vary among agencies or evidence types, but consistency is the key. Advice should be sought from relevant experts as to the correct method of collection, or arrangements for the direct assistance of the relevant expert should be made. Some types of evidence, such as gunpowder or bodily fluids, must be collected in a specific way orina specific type of container, free from contamination and/or degradation to ensure accurate testing and identification; • A contemporaneous record of the collection process and the identification of each individual item must be made. This can be in the form of a log, but the record should contain detailed notes, including where, when and by whom the item was collected. These notes should accompany each individual item as it is transported, stored and processed. This will form part of the “chain of custody” record, which allows the reliable presentation of the item to courts; • The collection and handling of evidence should be recorded using both still and video photography. This can be easily done using a digital camera. Notes should also be taken documenting the process. Notes are even more important when camera equipment is not available; • Items should be individually packaged with a unique designation (number or letter, or a combination of both) and securely sealed. Efforts should be made to protect evidence from contamination by using clean unused storage containers; • Items collected must be stored in a secure condition, both from the point of view of continuity, and physical security. It is of little use collecting evidence from a crime scene which may later be stolen, tampered with or the subject of degradation from the physical surroundings. This is particularly important when dealing with more modern evidence types such as human tissue or fluid samples; • A detailed report may also be prepared summarizing the collection, examination and storage of the items of evidence. Often this will take the format of a police or witness statement to be presented in court and should refer to the relevant videos, photographs, logs and documents produced during the collection process.
6 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
Collecting evidence When collecting evidence: • One person must be designated as the receiver of the items collected as evidence, often referred to as the “Property Officer”. It becomes this person’s responsibility to receive, label, record and retain possession of all items seized; • Prior to beginning the collection process it is often a good idea to walk through or examine the overall crime scene (leave your hands in your pockets - this way you can’t inadvertently move vital evidence). Make a note of the layout and obvious evidence so as to form a plan as to how the scene should be processed. This will also assist in prioritizing the collection of evidence - this is particularly important in areas where the security of the site may be threatened or time is limited due to security considerations; • Prepare a detailed sketch including direction north, associated buildings, locations, roads, etc. with a grid or other labelling system. This will allow the location of items seized to be clearly indicated on the diagram, as well as on the individual items label or bag. Like all paperwork produced at the crime scene it should be signed, dated and adopted by the author(s); • Prepare detailed notes of the location and the collection process. These notes should include reference to the evidence collection logs (chain of custody forms), photographic as well as evidentiary logs and importantly the people who enter and leave the scene; • Don’t include opinion or conjecture in the notes or recordings. The examination of the scene and items is best done without pre-conceived ideas. Let the scene and the evidence tell its story.
Investigator’s notes A reliable record of what happens at a crime scene or evidence collection area is essential and should be completed by the investigator as a matter of course. While other records such as evidence collection or photographic logs will be made, the investigator’s notes represent an overall and more complete record of the operation. These notes will form the basis of evidence presented to the court by the investigator, and therefore must be correct, detailed and above all professional. The format of these notes will vary but the following should be considered as key points: • Notes should be made at the time of the occurrence or as soon as possible thereafter. The greater the delay in noting the incident, the less reliable the record will be considered. An acceptable delay should be considered in hours rather than days; • Notes should be made in a bound and consecutively numbered book, notepad or similar. This ensures that pages cannot be torn out and re- written. This will assist in establishing the authenticity of the notes; • If notes are made electronically, e.g. on a laptop or personal digital device, a printed copy should be made as soon as possible and signed by the maker and witnessed. This document protects against allegations that notes were altered at a later date;
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 7 Module 4
• Mistakes will be made in the notes. If this happens mark a single line through the error and record the correct entry. This ensures complete transparency of the record; • The note taker should initial all corrections, or additions to the notes; • Notes should commence with the date and time and where appropriate time should be recorded throughout the notes (this places a verifiable sequence to the record). A description of the task, location and persons involved should also be made; • The notes should be written clearly and if abbreviations are used they must be easily explained; • The notes must be signed after the last entry by the note taker including their full name, title, date and time. The notes may also be signed or adopted by appropriate members of the teams. Pages other than the final page can be signed or simply initialled; • No large blank spaces should be left in the notes; • Protect and secure the notes. The notes essentially become evidence and therefore must be protected. If a later witness statement is made, based on the notes, then the notes may be required to verify the contents of the statement or witness testimony. Remember the notes may also be presented to the court and defence. An alternative to written notes could be video or audio recordings of the investigator describing the process. Whilst this is perhaps easier, it has a number of disadvantages such as technical failure and the difficulty in reviewing and checking previous entries. Audio (or video) recordings, however, can be a valuable time saving measure and also a useful adjunct to written notes.
Crime scene sketch A sketch of the scene should also be made; the level of detail in the sketch is dependent on time, resources and the size of the area. The sketch should be in the form of an overhead view. For instance, if the scene is a house the sketch should be a floor plan of the dwelling. The drawing should include a scale and measurements, indicate key features, and detail how different areas are identified, labelled and described. These labels and descriptions should be reflected in the labelling of the exhibits themselves as well as search/seizure notes and video/photographic logs. Again, the sketch should be treated as evidence in itself, signed and dated by the author, as it can become the basis of a written or oral statement to the court or a detailed report.
Video/photographic recording of scene/collection of evidence A video camera is an ideal tool for collecting a large amount of information quickly. It does however have its limitations, and should be used more as an overview tool with close-up, detailed recording being done via still or digital camera. Importantly, a video recording can be helpful in capturing the methodology used when collecting evidence and demonstrating the transparency and correctness of the evidence collection procedures.
8 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
One of the major problems with video recordings is the distortion of dimension and distance. However, video recording can provide a more natural perspective of the area and put into reference the surrounding area and the connections between parts of the crime scene. The video record will also assist in determining what was actually at the scene, what was disturbed or changed during the examination/collection process. It is also a valuable source of information of the crime scene and its contents, which can be referred to as the investigation progresses. On occasion an item that later becomes pivotal to the case may not be collected or thoroughly examined. The video recording will have recorded the existence and location of that item. As with any task, preparation is the key, so before using the video check that the batteries are fully charged and that you have as many fully charged spare batteries as you might need, and ensure that you have sufficient digital memory available to meet your needs. The date and time display of the video should be set and displayed. This ensures a permanent record of the date and time the film was made. In some circumstances it may be appropriate to video record a scene more than once, with and without the time/date display visible. Some modern videos have a title generator with which to mark the start of the tape. It is often more convenient to use a typed or hand written title card. This title card should, as a minimum, include the date, time and place as well as the person photographing and collecting evidence. When using a video camera warn people you are commencing the recording or turn off the audio. Using the audio track allows for the photographer to explain in detail what is being shown, what aspects of the crime scene may have been altered or highlight areas of particular interest. Care should be taken to move the camera slowly and the use of zoom should be limited. The film is a record of the scene and the actions taken; it does not need to be entertaining or technically perfect.
PHOTOGRAPHY (STILL) Every investigator should carry with them a small automatic camera (35 mm or APS format) to record crime scenes and associated points of evidence at short notice or where formal recording systems are not available. Even where a video recording is made, comprehensive still photographs should still be taken. Still photographs are capable of capturing far, far more detail than video recordings. This allows for more detailed close-ups and the direct comparison of evidence such as fingerprints, blood patterns or similar. The use of a still camera also ensures a second or backup record of the scene. Where possible, a professional scene of crime photographer should be used, although if this is not possible then a systematic approach should be adopted to photograph overall scenes and panoramic style shots followed by close-ups. Use a scale or ruler and appropriate labelling (often the item number or description) as well as a north indicator or other location indicator. Where possible, use a tripod and a flashgun. It is often appropriate to take several photographs of the same item/scene using different settings and with/without labelling. Remember that photographs may represent the best record of the scene or examination to be presented to the court.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 9 Module 4
TRPHEAT OTOGRAPHS AND VIDEOS AS EVIDENCE Digital memory cards should be treated in a similar way as the other evidence collected. Practices vary. Some jurisdictions demand the original memory card be retained as evidence. Elsewhere, an acceptable practice is to download the images onto a non- erasable Digital Video Disc (DVD) that becomes the primary evidence. Each memory card or DVD should be marked and sealed and the “chain of custody” details commenced. The memory card or DVD becomes a primary piece of evidence, and the prints and copies made from it become secondary evidence. It is therefore necessary to ensure the memory card or DVD is protected. It is also important to consider the consequences of airport screening or other security systems on this type of evidence. A photographic log or similar notes should also be made, consisting of date, time and place as well as each photograph number and a description of the area or item photographed. The log may also include appropriate comments, which will allow sense to be made of the photographs at a later time. Again this log becomes evidence in itself and should be treated appropriately. There are computer programmes that will provide a photo log from your series of downloaded photographs e.g. http://landscapeimage.com/thumbhtml
10 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4 omment C
ersion EXIF V x30, x30, O 250 125 34563456 5184 1/60s 5184 1/60s 18.0mm 18.0mm f5.0 f5.0 100 100 x30, x30, od Width Height Exposure Focal Length Aperture IS M ime T od M ate D rig ime T O rig O ate 3/07/2012 5:57 23/07/2012 8:26 D odel M ake M Canon Canon EOS 600D 23/07/2012 5:56 23/07/2012 5:56 5184 3456 1/60s 18.0mm f5.0 100 x30, 4172K IMG_1349.JPG 7161K Canon Canon EOS 600D 21/07/2012 15:52 21/07/2012 15:52 5184 3456 1/200s 18.0mm f8.0 100 x30, IMG_1394.JPG 10516K Canon Canon EOS 600D 22/07/2012 7:22 22/07/2012 7:22 5184 3456 1/250s 18.0mm f10.0 100 x30, IMG_1417.JPG 8308K Canon Canon EOS 600D 22/07/2012 7:33 22/07/2012 7:33 5184 3456 1/250s 18.0mm f10.0 100 x30, o Filename Size 27 N 1 IMG_1260.JPG 4586K Canon Canon EOS 600D 18/07/2012 16:13 18/07/2012 16:13 5184 3456 1/500s 250.0mm f8.0 100 x30, 5 IMG_1264.JPG 5957K Canon Canon EOS 600D 18/07/2012 16:14 18/07/2012 16:14 5184 3456 1/2000s 250.0mm f5.6 6 IMG_1267.JPG 5134K Canon Canon EOS 600D 18/07/2012 16:15 18/07/2012 16:15 5184 3456 1/500s 250.0mm f7.1 100 x30, 910 IMG_1273.JPG19 IMG_1274.JPG 4731K 4759K IMG_1286.JPG Canon 4687K Canon Canon EOS 600D Canon 19/07/2012 Canon EOS 600D 19/07/2012 Canon EOS 600D 15:38 19/07/2012 15:38 19/07/2012 19/07/2012 15:42 19/07/2012 15:38 15:38 5184 15:42 5184 3456 5184 1/125s 3456 1/125s 3456 55.0mm 1/500s 55.0mm 250.0mm f16.0 f22.0 f8.0 100 100 x30, 100 x30, x30, 28 IMG_1295.JPG 3542K Canon Canon EOS 600D 19/07/2012 15:58 19/07/2012 15:58 5184 3456 1/200s 250.0mm f18.0 400 x30, 31 IMG_1298.JPG 4951K Canon Canon EOS 600D 19/07/2012 15:59 19/07/2012 15:59 5184 3456 1/80s 55.0mm f4.0 32 IMG_1299.JPG 4391K Canon Canon EOS 600D 19/07/2012 15:59 19/07/2012 15:59 5184 3456 1/2500s 55.0mm f4.5 100 x30, 81 IMG_1348.JPG 4775K Canon Canon EOS 600D 21/07/2012 15:52 21/07/2012 15:52 5184 3456 1/200s 55.0mm f11.0 400 x30, 82 92 IMG_1359.JPG 8497K Canon Canon EOS 600D 22/07/2012 7:10 22/07/2012 7:10 5184 3456 1/200s 18.0mm f20.0 400 x30, 1261 IMG_1393.JPG 10818K Canon Canon EOS 600D 22/07/2012 7:22 23/07/2012 8:26 3456 5184 1/250s 23.0mm f10.0 100 x30, 149150 IMG_1416.JPG151 8535K IMG_1418.JPG Canon Canon EOS 600D 22/07/2012 7:33 22/07/2012 7:33 5184 3456 1/250s 18.0mm f10.0 100 x30, 152 IMG_1419.JPG 4859K Canon Canon EOS 600D 23/07/2012 5:56 23/07/2012 5:56 5184 3456 1/40s 18.0mm f4.0 100 x30, 153154 IMG_1420.JPG 4775K IMG_1421.JPG 4859K Canon Canon Canon EOS 600D 23/07/2012 Canon EOS 600D 5:57 2 23/07/2012 8:26 Highlighted area records images that have been modified.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 11 Module 4
Large-scale crime scenes and minimal resources One of the problems that may confront war crimes investigators is the scale of crimes and crime scenes. In all probability available resources will be insufficient to deal with the task in the systematic manner advocated above. Yet, adherence to these same principles will assist in ensuring that the best possible evidence is available to the subsequent trier of fact. The worst possible scenario is one where the scale of the task leads the investigator to ignore the principles of systematic collection of evidence. Below are some guidelines, which will assist in determining priorities and allocating resources in these situations.
INFORMATION HANDLING
It is vital when demands are many and resources are few to collect the best information possible to assist in deciding where investigators or scene of crime specialists should be deployed. The following steps are recommended: • Establish a command post for collection of information and monitoring of staff. Probably the most important step, since you will not be able to gather or record all the information available yourself. There will be a plethora of people, witnesses, organizations and officials wanting to pass information to you. If to avoid duplication only, this information needs to be funnelled into one place, your command post. Here the information can be collated, compared and prioritized for follow-up. • Establish a system or database for recording and collating information. In information-rich scenes you may quickly become overwhelmed with information. The establishment of a detailed system, preferably a database to store this information, is essential. Databasing is recommended as this will allow you to manage the data at a later stage when the parameters of your investigation have become clearer. It will also assist in the collation process and facilitate exploitation of the data. • Establish protocols for information collection. Maximize the quality of information available from all sources. • Prepare a checklist or a pro forma setting out the categories of information you want collected and the manner in which you want it recorded. • Establish common terms for describing locations, gravesites, crime scenes and co-ordinates. For example, insist that all reported scenes are accompanied with a photograph of the site, sketch plan and GPS or map co-ordinates. This will assist in avoiding duplicate recordings of sites and also allow the investigator to find the site on a subsequent occasion.
12 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
• In some places towns and villages may be known by different names, depending on which entity your witness comes from. Wherever possible record both. • Monitor media reports and liaise with journalists. Similarly, you can rest assured there will be a media presence. Experience tells us that in most cases where you are examining alleged crime scenes, the media will become aware of your presence and wish to report it. Journalists will go about their reporting whether you co- operate with them or not. By establishing a rapport with them you can gain early access to vital information and have some control over how this information is collected.
Assessment Having collected a wide variety of information, an assessment needs to be made as to which sites will be further examined, and how they will be treated. This will often be a balancing test between the number of reported sites and the amount of resources available to you. There will also be humanitarian concerns that will have to be considered, e.g. identification of human remains for relatives. For the war crimes investigator, the assessment will focus on elements of crimes (s)he may later have to establish in a prosecution. Any early assessment of likely violations to be prosecuted, and thus need to be supported by crime scene evidence, is vital. Perhaps the most crucial test is to ask what evidence will disappear, irretrievably, if it is not collected immediately. Examples of this include human remains of victims lying on top of the ground, physical evidence such as shrapnel or cartridge cases, or movable physical characteristics of sites, as described by witnesses. As these types of evidence are likely to disappear if not dealt with, they should be examined at the earliest possible opportunity. Alternatively, a mass grave, left untouched, will still yield vital evidence if exhumed long after the event. Having determined this, you must ask the question, “If the evidence does disappear, what effect would it have on a subsequent case?” The answer to this question will assist in prioritizing efforts to recover evidence.
Minimum requirements for treatment of sites Along with carrying out an assessment and setting priorities for which sites will be examined, you should also establish a minimum requirement for recording of information relating to sites which are not to be subjected to a full examination. • These minimum requirements could include: • Still photography; • Measurements of scene; • GPS co-ordinates or map reference; • Sketch plan; • Particulars and contact points of any witnesses to the alleged event.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 13 Module 4
These steps can be taken by staff with a minimum amount of training and can be extremely useful. For example, a photograph of a victim recorded in this manner, whilst not yielding the same quality of evidence as a full forensic examination, may nonetheless suffice to corroborate witness evidence of a murder.
Debriefing and comparison of information The progress and direction of investigations are dynamic. They may change quickly, particularly in the early stages. It is therefore essential to conduct daily debriefings with all staff involved in the investigation and to compare this information with material from other sources.
WHAT IS Sexual Violence PHYSICAL EVIDENCE? • Typical sexual violence physical evidence may include: • Clothes, ligatures, blindfolds, bedding, towels, torture devices, weapons, condoms, tape, etc. • Biological evidence: semen, saliva, blood, mucous, sweat, other body fluids, skin, fingernail scrapings, bone, teeth • Trace: fibres, hair, glass, soil, paint, metal, plaster • Impressions: fingerprints, footprints, tool marks, tire marks • Firearms: bullets, shell casings, explosives, residue • Toxicology: drugs, poisons, alcohol • Documents for analysis: handwriting, typewriting, indented writing, alterations, paper and ink analysis, etc.
14 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
Evidence handling procedures
Maintaining the Chain of Custody
• The evidence shall be accounted for at all times. • Unless an item is in the evidence vault of the tasking organization or an approved security container, the item should be held in the possession of the collector, designated property officer or individual authorized to have possession of the item, at all times. • In the event that large amounts of evidence need to be collected in the field, an investigator or recognized official shall be appointed to guard the evidence until it is transported to the tasking organization.
Packaging
• Handle every item with care to protect its original condition. • Where applicable, use protective clothing such as gloves, masks and eye protection when handling evidence (for example, items which are wet with biological fluids.) • Seal and package items separately to avoid cross-contamination. Additional packing material should be used if an item could break during transport and/or contaminate other evidence. • If examination of the item is needed before packaging, do so over clean paper. Include that paper in the packaging. Liquids or pastes should be retained in their original containers, sealed and marked. • Retain evidence in original packaging and seal with new material. • Label the package. • Wrap in paper when in doubt of the type of packing material to use.
Labelling
Include the following information on both outer wrapper and any evidence log: • Date, time and name of collector; • Name of suspect, if applicable; • Description of the item; • Location and/or individual releasing item; • Case file number, if applicable.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 15 Module 4
Soeizure f documents
• Handle original documents with cotton gloves. Do not fold, crease, cut, or mark the document. • If the document is damaged (for example, charred), transport it in the container in which it was found. In such cases, do not unfold, etc. If fragments cannot be placed in the original container, pack them separately with absorbent cotton material. Place all documents in a sturdy container for transportation. Pack with additional cotton material or paper, without crushing it, to prevent the document from moving. • Place the document flat in a paper envelope. Note: if plastic bags or sleeves are used, environmental conditions may promote the development of moisture within the plastic bag and destroy or damage the contents. (For example, moving an item from a cold environment to a warm environment may cause condensation to form inside a plastic bag.) • Make two photocopies (one will be your working copy) of each document. Initial and record the date and time on the reverse of each working copy. Do not use the photocopier’s automatic feeding process as it may destroy indented writing. Place the document directly on the glass, then copy. Audio and Video Memory Cards • At the start of each video or audio recording, the investigator should state the names of those present during the recording (if appropriate), the date, time, and location of the recording. • Download the recording onto a non-re-writable digital disc (CD or DVD) at the earliest opportunity and make copies of it to use as working copies. • If necessary seal and secure the original digital recording for later production as evidence. • Do not play original recordings. Make and use working copies.
Computer Equipment • Do not touch any equipment before thoroughly examining the set-up. • If the equipment is on, attempt to save the documents before exiting. Wherever possible, consult with a computer expert before touching any equipment that is turned on. • If the computer is not turned on, carefully unplug the computer and label the parts and connection ports. • Examine the room/building from which the computer will be removed. Beware that magnetic devices may be placed in doorways, etc. These magnetic devices may erase the data banks in the computer.
16 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Module 4
• Seize all the computer equipment (including the keyboard), disks and any instruction manuals. Seize the material no matter what condition it is in (disks can be restored in some cases). • Consider taking the computer printers, if necessary. Arrange for a computer crime investigator to examine the equipment.
Clt o hing
• Separate all items and place on separate paper sheets. • Examine clothing surfaces for its evidentiary values, including tread patterns on shoes. • Ensure clothing is dry before packing. If clothing is wet lay flat to dry. • If the clothing is heavily stained put paper between the layers. • Avoid folding the clothing in areas of evidentiary value (for example, through a bloodstain or damaged area) to prevent stains from flaking. • Wrap, seal and label. • Items should be kept separate from other victims’ or suspects’ clothing, even when packaged.
Ballistics and trace metals
• Handle with gloves or material that will not scratch metal surfaces. • If wet, dry before packaging. • Do not attempt to remove foreign matter adhering to the metal’s surface. Collect any material that has fallen off and place it in a paper envelope. • Package cartridge cases and bullets separately with soft cushioning material. • Protect against moisture or chemicals that could cause corrosion. Package in a plastic or paper bag. If environmental conditions are likely to produce moisture inside the plastic bag, use a paper bag or container. • Place in a protective container to prevent any further damage.
Collection of Evidence and Forensic Aids to Sexual Violence Investigations 17 Module 4
Firearms • Confirm the weapon is safe (unloaded, etc.). • Handle on the chequered/grooved part of the butt. Wear cotton gloves. • Do not remove any foreign material on or in the weapon. • Collect any material that has fallen off the weapon and place in a paper envelope. • Ensure firearm is dry and free from moisture and chemicals. • Record identifying data: make, model, serial number (depending on the weapon, this may be found on the barrel, body and or on the slide or breech-block) and distinguishing characteristics. • Secure inside a rigid container to prevent the weapon from moving or rubbing against the container’s surface.
Photographing Victims or Suspects • Take overall, mid-range and close-up photos in colour and black and white. • Close-up photos should include wounds or any unusual marks. Take the photo with and without a scale. The scale should be labelled with the time, date and case file number. • Log photos as they are taken. Include the date, time, and location, type of film and camera settings on the log. Give a brief description of each frame. • Photographing other items of evidence can be handled on an as needed basis. The same procedures should be followed.
18 Collection of Evidence and Forensic Aids to Sexual Violence Investigations Investigating Cases of War Time Sexual Violence
COLLECTION OF EVIDENCE AND FORENSIC AIDS TO INVESTIGATIONS
CONTEMPORARY SV INVESTIGATION MODEL
• Complaint. • Assessment & support of victim by social worker or psychologist. • Medical examination. • Collection of biological and/or trace evidence. • Crime scene examination. • Statement taken from victim. • Interview of potential witnesses and further statements. • Identification of perpetrator/s. • Arrest and trial.
CONTEMPORARY –V- WAR TIME INVESTIGATION MODELS
• The nature of the crimes is different and • The nature of available evidence is also different. • Investigators of war time sexual violence may need to rely less on forensic evidence and more on testimonial and other forms of evidence.
WAR TIME INVESTIGATIONS - COMPLAINT
• May or may not be present. • Victim may be reluctant or refuse to cooperate because of cultural reasons; stigma; safety or security or other concerns. • May be multiple victims. • Opportunity for making a complaint may not exist or not until temporally long after the event. WAR TIME INVESTIGATIONS - PSYCHO SOCIAL ASSESSMENT
• In many instances this type of support was not available. • There may be a reluctance in cooperation between support organisations and investigation authorities
WAR TIME INVESTIGATIONS - MEDICAL EXAMINATION
• The opportunity for timely medical examination of victims was often not available • Trace evidence is often not available.
WAR TIME INVESTIGATIONS - CRIME SCENE EXAMINATION
• Should still be done where ever possible. • The length of time since the event may mean the scene has changed significantly, thereby limiting the value of the examination. • Some forensic evidence is still recoverable and evidence of the physical layout of the scene may provide valuable corroboration for victim and witness testimony.
WAR TIME INVESTIGATIONS - CHALLENGES
• Due to time lag between event and investigation in many cases there will be no detectible injuries • The ability to collect trace evidence through medical examinations has passed. Normally this depends on when a victim or survivor presents • Within 72 hours of the attack – can collect samples of blood, hair, saliva, and sperm • After 72 hours amount and type of evidence will be limited EVIDENCE COLLECTION IN SEXUAL VIOLENCE INVESTIGATIONS
This module covers two main areas relating to the collection of evidence: • Collection of biological and/or trace evidence. • The examination, documentation and collection of evidence available at alleged scenes of sexual violence incidents.
LOCARD’S EXCHANGE PRINCIPLE
“Whenever two objects come into contact there is always a transfer of material. The methods of detection may not be sensitive enough to detect this or the decay rate may be so rapid that all evidence of transfer has vanished after a given time. Nonetheless, the transfer has taken place.”
Edmond Locard (French scientist) 1928
TRACE EVIDENCE
• The ability to collect this material from alleged crime scenes can be crucial to linking an offender to an event, or even proving or disproving that the event occurred.
FORENSIC SCIENCE ANALYSIS
• Used to identify traces of material after two objects have come together. • Takes place in laboratories and involves the use of specialist equipment such as microscopes. TRACE EVIDENCE IN SV INVESTIGATIONS
BIOLOGY/DNA • Analysis of body fluids and dried stains such as blood, semen, and saliva • DNA is available as trace evidence many years after an event. TOKSIKOLOGIJA • Tests body fluids and tissues to determine the presence of drugs and poisons.
INTERACTION BETWEEN FORENSIC SCIENCE AND MEDICINE
TYPES OF FORENSIC EVIDENCE
Physical Documentary
Types of Evidence in Sexual Violence
Demonstrative/ Testimonial Corroborative TESTIMONIAL
• The starting point of the investigation will often be the gathering of testimony from victims and witnesses. • Collection of physical and demonstrative evidence allows the investigator to verify testimonial evidence and provides essential corroboration of victim and witness evidence. • Documentary evidence is often crucial in linking remote perpetrators to events.
WHAT IS SV PHYSICAL EVIDENCE?
• Typical SGBV physical evidence may include: clothes, ligatures, blindfolds, bedding, towels, torture devices, weapons, condoms, tape, etc. • Biological evidence: semen, saliva, blood, mucous, sweat, other body fluids, skin, fingernail scrapings, bone, teeth • Trace: fibres, hair, glass, soil, paint, metal, plaster • Impressions: fingerprints, footprints, tool marks, tire marks • Firearms: bullets, shell casings, explosives, residue • Toxicology: drugs, poisons, alcohol • Documents for analysis: handwriting, typewriting, indented writing, alterations, paper and ink analysis, etc.
KEY CONSIDERATIONS
• Evidence should be collected at same time as medical exam to minimize possibly traumatic invasive exams • Need to have/know in advance: • Legal /evidentiary requirements • Capacity for evidence collection • Capacity for storage and analysis • Legal responsibility of health care provider
TYPICAL SV BIOLOGICAL EVIDENCE
• Biological (DNA): blood, semen, saliva, skin, mucous, sweat, urine, teeth, bone, hair, fingernail clippings, bodily fluids • Objects that may contain biological evidence: condoms, tissue, underwear and other clothing, bedding, towel, hat, mask, cigarette butts, glasses, gloves, gum, cans and bottles, envelopes, ligatures, gags, blindfolds, phones, weapons, etc. PHYSICAL EVIDENCE
• Can be found on victim, suspect, or at crime scene • Can link a suspect or victim to the crime scene or to each other • Can identify, eliminate or exonerate a suspect • Can corroborate a victim or disprove an alibi • Can tell us how, who, where, and when a crime happened and provide leads for further investigation
DOCUMENTARY EVIDENCE
• Can perhaps be considered another form of physical evidence • Documents, created at or near the time of events, can be helpful in identifying perpetrators and establishing command or superior responsibility
FORENSIC DOCUMENT ANALYSIS
• Examination of documents to compare handwriting, ink, paper, writing instruments, printers, and other characteristics that would help to identify its origin • Assists in establishing authenticity of documents
DEMONSTRATIVE-CORROBORATIVE EVIDENCE
• Visit and photograph the crime scene to corroborate the victim’s story, and possibly find more evidence • Take photos of the victim’s injuries or scars now • Obtain or photograph victim’s clothing if it still exists or anything used in the assault • Obtain any medical records of long term injuries or disease suffered from sexual violence • Obtain photo of victim at time of assault if possible, if a child • Establish and chart patterns of the sexual violence
WHAT DO YOU DO?
• If you visit a crimes scene and you see obvious physical evidence, what will you do? • Are you prepared to collect it? • How will you transfer it? • How will you store it? • Will you have it analysed? • How will you keep track of the evidence, especially if there is no obvious court which will prosecute? • If you can’t collect, transfer, or store it properly, don’t collect it. Mishandled evidence will be as useless as no evidence. CHAIN OF CUSTODY
• For a physical exhibit to be accepted in court and given the highest value or weight by that court, an unbroken chain of custody is essential. • For the court to accept the item you must be in a position to prove that the item was indeed that which was taken from a particular person or place. • If you cannot meet this standard – question whether you should collect the exhibit at all.
FIRST STEP: OBSERVE, ASSESS AND DOCUMENT
• DO NOT TOUCH. Observe the scene first. What evidence do you see or anticipate? • Restrict access and movement in crime scene while documenting evidence • Photograph the scene and evidence in situ • Document and sketch: a description of the evidence, the condition of each item, the location of each item, date and time, and who was present. Start photo log.
AT SITES OF VIOLATIONS
• Once you have approached the site, stop and observe it, video it, take still photos, sketch the scene and make notes of your observations. • Repeat this documentation process for all of your activities at the site.
PRINCIPLES - WHAT TO PHOTOGRAPH?
• General condition of scene, the distances, the items, and injuries to victim and suspect • Objects left at scene: weapons, torture devices, ligatures, blindfolds, clothing, cigarette butts, bottles, condoms, etc • Clues showing methodology of the crime: blood spatter, drag marks, bullet holes, etc. • Items mentioned by witness to corroborate: broken window, hangings on wall, furniture, mattress, alcohol, etc. • Injuries to victim: bruises, cuts, scars, disfiguration • Injuries to suspect or feature described by victim
THREE MAIN TYPES OF PHOTOGRAPHS:
• Overall • Context (mid range) • Close up OVERALL
• Important to show what the overall scene looks like, distances, relationship between objects, etc. • Aerial photographs fall into this category as well. These are valuable to show the geographical outlay, streets, buildings etc.
CONTEXT
• Shows objects which relate to each other, e.g. firearm next to an apparent suicide victim; or blood spatter patterns in relation to the corpse. • Context photos are usually taken with and then without scales and markers. CLOSE UP
• Close up photos show detail, e.g.: knot used, wounds, marks or impressions. The subject is shown in full frame. • These photos should be taken with and without a scale and marker for identification purposes.
PRINCIPLES OF HOW TO PHOTOGRAPH
• If premises try and get street sign or house number in photograph • Take evidence with scale and without • Take photos of scene and evidence from different angles • Photo log: description of item, date, time, location, where item found, photograph # • Treat your photographs and photo log as evidence
DIGITAL PHOTO LOG.
http://landscapeimage.com/thumbhtml 120822 exifdata example.xlsx Picture gallery Exif data 2 COLLECTING PHYSICAL EVIDENCE
• Identify the evidence –photograph, sketch, and document in situ: overview, midrange, close up of evidence • Always be safe and prepared-have gloves, masks, bags, sharpies, boxes, envelopes ready • Collect in systematic manner: one item at a time, keeping an inventory of each item collected. One person collects the evidence and another records it. The chain of custody starts now. • Avoid contamination: do not transfer your genetic material to the evidence, nor transfer material found on one item onto another. Switch gloves with every piece of evidence. Use new bags.
COLLECTING PHYSICAL EVIDENCE
• Each item is packaged separately in a paper bag and labelled, sealed, and given a number which corresponds to the inventory, including: the location found, date & time, description, who collected it, item number, and case name written on outside of bag. This records the chain of custody. • Ensure evidence is dry before packaging • Anytime the evidence bag is opened, it must be noted on the bag and log who opened it, when, and for what purpose. The chain of custody starts when the evidence is first collected and continues until it is introduced as evidence in proceedings.
TRANSFER AND STORAGE OF PHYSICAL EVIDENCE
• Evidence must be protected from destruction, dampness, heat, contamination, and for safety • Place in secure room temperature dry storage area. • Avoid exposure to sunlight or heat. • If biological evidence, store in frozen storage • If blood sample in tube, store in refrigerator • Always maintain chain of custody
PHYSICAL-BIOLOGICAL EVIDENCE FROM VICTIM
• Ideally, the victim should be examined by a forensically qualified doctor or nurse within 72 hours, but depends on circumstances • Forensic exam and collection of evidence performed by doctor or nurse • Rape kit used and forms and diagrams filled out by doctor or nurse. • Rape kit taken to crime lab for analysis or stored in freezer • Clothes victim wore on day of attack and day after should be collected and examined for biological and trace evidence. Place in separate paper bags. Store clothing with rape kit. • If bruises, photographs should be taken when bruises are most visible • Chain of custody documented INVESTIGATOR KIT
• Camera, extra card, batteries, recharger, adapter, flashlight • Ruler or tape measure • Paper bags, envelopes, bindles, evidence tags, disinfectant, pocket knife, tape, disposable gloves, plastic bags • Office supplies: note pad, markers, pencil, eraser, plastic envelopes, blank paper, rubber bands, clips, blank forms, folders • Map, GPS • Digital recorder • Extra flash drive • Binder with forms, contact numbers, business cards, letterhead, etc. INVESTIGATOR’S NOTES
• Investigator’s notes represent an overall and complete record of the steps the investigator takes in the course of an operation. • Contemporaneous notes made, systematically, by the investigator to record details of all activities carried out by an investigator e.g., • Notes of what occurred during an investigation of a site of alleged HR violations or • What was said in an interview. • Notes should be made at the time of the occurrence or as soon as possible. • The note taker should initial all corrections, or additions to the notes. • Notes should commence with the date and time and, where appropriate, the time should be recorded throughout the notes (this places a verifiable sequence to the record). • A description of the task, location and persons involved should also be made. • The notes should be written clearly and if abbreviations are used they must be easily explained. • The notes must be signed after the last entry by the note taker including their full name, title, date and time. • The notes may also be signed or adopted by appropriate members of the teams. • Pages other than the final one can be signed or simply initialled. • No large blank spaces should be left within the notes. Protect and secure the notes.
SKETCHES
• Kao i sa bilješkama istražitelja, tu je i sveobuhvatan prateći crtež ili plan lica mjesta krivičnog djela, područja pretrage, ili mjesta lociranja podataka. Do not use any date format which can be confused
SKETCHES
• Prepare a detailed sketch including direction North, associated buildings, locations, roads etc. with a grid or other labelling system. • This will allow the location of items seized, to be clearly indicated on the diagram, as well as on the individual items label or bag. • Like all paper work produced at the crime scene it should be signed, dated and adopted by the author(s). • This task is often the responsibility of the Note Taker or Exhibit Officer.
SKETCH CO-ORDINATES
• To enable easy comprehension a sketch should use one of the following methods of co-ordination: • Rectangular • Baseline • Triangulation • Polar RECTANGULAR COORDINATES
POLAR COORDINATES BASELINE COORDINATES
TRIANGULATION COORDINATES CASE STUDY
Contamination: Jill Dando (Accused Barry George)
Dando Case Study
• On 26 April 1999, TV personality, Jill Dando was shot at point blank range through the head at the entrance to her London apartment. • The suspect, Barry George was convicted and sentenced to life in prison. • The court of appeal overturned the conviction in November 2007. • The new trial was in June 2008. He was acquitted on 1 August 2008. • Core to the appeal was the possible contamination of information. • Firearms discharge residue found in the accused’s jacket pocket matched the type found on the victim. • The jacket was bagged and tagged correctly, but then removed from it’s protective bag and placed on a work surface in a police photographic studio lab.
Dando Case Study
• Other items from the crime scene such as the cartridge case as well as the door (which the bullet hit after passing through the victims head), were photographed at the same lab. • In addition, the vehicle transporting the bagged jacket had not been sampled, and therefore could have contaminated the packaging, which could have found its way onto the jacket. • In addition to this, George was arrested by armed police who handled the said jacket. • Defense introduced this as possible contamination through a defense scientist with 30 years experience in this field. (Dr Lloyd) • Correct procedure in this case....items should be examined for trace elements prior to being taken to a photo lab. CRIME PATTERN ANALYSIS
• Compare & link similar events • Basis to exclude other events • Forcefully demonstrate patterns • Infer overall purpose / planning • To predict future events
HISTORY
• Simple policing tool • Repeat / habitual offenders • Rapists, house burglars etc • Where an idiosyncrasy is present • Pattern of offending based on- • Free time • Spatial familiarity • Objective • Reactive & Proactive use Easy to use on a bigger scale
METHODOLOGY
• Develop pattern hypothesis • Small sample of similar known events • Comparison criteria (event elements) • Non-obvious relevances • Strictness of compliance • Limit the scope of your search • Overall time / place pattern • Resulting inference • Alternative explanations
ACTUAL USE OF CPA
• Develop prosecutorial strategy • Direct investigative resources towards primary events • Infer in court the existence of a master plan IDENTIFYING PATTERNS OF SGBV
• Victim-who and why targeted-gender, age, ethnic, religious, political, geographic similarities? • Time and location of assault, and events preceding assault-is it in specific geographic areas, towns, prisons, detention centres, etc? • Does it happen after certain military, political events, speeches or news events? • Type of violence itself and modus operandi of suspects-what is the approach of the perpetrators? • What are the violent acts? • How many people involved? • Weapons used? Words said? • How does it end? Types of injuries • Identity of the suspect-particular unit, rank, command, militia, police • Pattern to purpose or consequence of the violence-is it to terrorize, seek revenge, stigmatize, dilute an ethnic group, eradicate an ethnic group
REMEMBER
The integrity of the information you collected may come into question if the probability of contamination is present. The following steps can be taken to prevent contamination: • Wearing of latex gloves • Protective clothing • Sterile packaging and receptacles
IT REALLY IS A SPECIALIST TASK!
QUESTIONS? Module 5
Module 5
MODULE 5:
Witness Trauma and Psychosocial Support
Module 5
Approaches to Witnesses & Witness Trauma...... 3 Why should the witness trust you?...... 3 What you need to do...... 4 What happens emotionally during a sexual assault?...... 5 Long-term emotional effects...... 6 The interview...... 7 How the story is communicated...... 8 Providing support...... 8 Client’s perception...... 9 Male victims...... 10 The child victim...... 10
Module 5
Approaches to Witnesses & Witness Trauma
Wh y should the witness trust you?
When interviewing potential witnesses of sexual violence, it is important that you understand their perspective on what has occurred to them and what they fear is going to happen to them in the future. The act of sexual violence usually does not occur on its own. Often it occurs in an environment of mass violence during which others, including family members or friends, have been severely injured, killed, tortured, burnt or subjected to various forms of humiliation. To the witness, sexual violence may not be their main concern under these circumstances. The issue of survival and trying to re-establish their lives with some form of stability may be their overriding need. The belief system of the witness can be severely challenged by the events which have occurred to them and to others. This can be especially pertinent if the alleged assailants are part of the state apparatus or are acting, in one form or another, on behalf of the state. Trust can be and is usually established. The reason for the trust being placed in you is due to the witness’s need and desperation to have at least some hope for some form of restitution for what has occurred. Essentially, you are a stranger in what is perceived by them to be a very dangerous world. Their life experiences may have involved elements of danger over a protracted period of time and the incidence you are investigating may be just one or more incidence in a life full of adverse and threatening violent incidences. Your demeanour, your character and the way you dress may remind them of the alleged assailant. Particular emphasis should be placed upon the sense of smell. The sense of smell is a very strong emotional reminder to people of events, both pleasant and unpleasant. Many assailants sweat profusely whilst indulging in their various violent acts. Many investigators come from cooler areas and hence may sweat profusely in what, for them, may be a hotter environment. In this regard, care of hygiene is important. The smells that you may give off can evoke memories of their assailants and as a result you may be viewed as a threat rather than as an investigator. It should be remembered that females have a stronger sense of smell than males. Some studies say that their sense of smell is four times that of a male. It is very important that you do not make promises which you are unsure that you can deliver upon. Such breakings of promises and commitments for the witness may be one more incident of betrayal. When interviewing witnesses, the way you handle yourself and your demeanour is very important. If you adopt certain body language, you may be implying that you are
Witness Trauma and Psychosocial Support 3 Module 5
disbelieving. Such body language will lead to a sense of frustration for the witness and a lack of trust in telling their story. This may result in less detailed evidence being provided by the witness than may be required for your purposes. You should remember that the witness may have a marked sense of shame. Sexual violence is about more than just sexual gratification. It is utilized to humiliate and demean the victims and the community from which the victim comes. This sense of shame needs to be overcome in order for accurate information to be acquired. Be aware that the witness may fear rejection by you if they provide you with the details of what happened to them and to others. Frequently, victims of sexual violence are put into situations which leave them compromised in regard to how they behave in relation to others in their community. A constant figure in relation to sexual violence, whether it is mass sexual violence or singular sexual violence, in conflict and non-conflict situations, is that females make up 83% of the victims. This means that 17% are male. It is only over the last couple of years that more attention has been paid by international organisations and investigators to sexual violence perpetrated against males. Because of the perception of loss of masculinity, it is probable that the rate of sexual violence against males of all ages is higher than is reported. Cultures vary tremendously in relation to how they talk about sexual matters. You should be aware of your own culture and how it affects you in talking about sexual matters, including sexual violence, and the culture of the witnesses that you are investigating. Many countries are multicultural, and it is important that prior to your investigation you obtain as much knowledge about the subculture of the witnesses as possible. You may be aided in this regard by the interpreter. Be conscious that the interpreter may come from a different ethnic group and may have preconceived ideas which are not accurate in relation to the culture of the witnesses. When interviewing witnesses, you may be trusted, but your interpreter may not be. The interpreter may belong to an ethnic group, religious group, and so on, that may be in some way associated with a hostile element by the witness. When interviewing the witness, you should be aware that they will be fearful of what will happen next with the information that you are provided. Often the alleged assailants are still within the community, and there could be a fear that the alleged assailants will once again inflict some terrors upon the witness or upon his or her community. In some cultures the victims of sexual violence are shunned and are treated as being unclean. They can be blamed for what happened to them. They can be divorced as a result and they can be evicted from the community.
What you need to do It is important that you are clear in stating your role in relation to the process. You should outline the limits of the confidentiality in the process on which you have embarked. This sense of shame needs to be overcome in order for accurate information to be acquired. Empathy is an important aspect in obtaining information from people. Empathy must be balanced and certainly never be patronising. It is natural to feel empathic in relation to witnesses, but it is also important that you maintain a professional boundary. In your
4 Witness Trauma and Psychosocial Support Module 5 communications with the witness, you should always maintain their dignity. You should never demonstrate any sense of horror you may be feeling as they relate their story and answer the questions which you have put to them. If you provide a negative reaction, this may curtail the amount of information that you receive. Often, victims of sexual violence will initially give you generalized information. As they are doing this, they are monitoring your responses. If your response is in any way judgmental or you are demonstrating an excessive empathy or an emotional reaction to the content of what they are saying, they will curtail what they are saying to you. As a result, vital information may be held back. It should be noted that when traumatic events occur to people, frequently their memory of those events is not organized on a coherent and temporal basis. When people are in a heightened state of excitement, their memory of the events become fragmented and chaotic. As a result, their narrative of their experience can reflect this chaos and appear to be disorganized. This can be frustrating for an investigator, and I would advise that, when trying to obtain a temporal narrative, this should be done gently and not done in an irritated or frustrated manner. I would emphasize that professional boundaries are required at all times. When hearing stories of a traumatic nature, it is important that you do not convey your own emotions in relation to what you have heard. You should refrain as much as possible from saying what you are thinking.
What happens emotionally during a sexual assault?
As noted earlier, a sexual assault rarely occurs as a sexual assault alone. It occurs in the context of many events. Other traumas may also be simultaneously occurring. Rape, sexual and physical assault usually involve injuries. These injuries will frequently be much more severe in children due to the size of the child’s body. It is important to allow the witness to talk about the physical outcome of their experiences as well as the actual experiences themselves. During the assault and the events surrounding the assault, the normal emotional responses vary. Some can have what is called a state of derealisation. In this situation, the victim feels disconnected from the world and events surrounding them. It is as if they are in a trance-like state. Their perception of time can be altered. Others go into a state of agitation and panic. For others it can be one of anger mixed with terror. Some people freeze and as a result they become physically inactive as violence is inflicted upon them and on those around them. This freezing response can be a source of embarrassment for people later on. They question themselves as to why they did not react in some form or other. It should be remembered that during many sexual assaults, if not all, the victim expects to be killed at some point during that assault. That experience of imminent death may be their overwhelming emotion and the inflictions perpetrated upon their body may be of a secondary nature to them.
Witness Trauma and Psychosocial Support 5 Module 5
Long-term emotional effects
The most common emotional reaction after being the victim of severe violence, sexual and otherwise, is that of depressed mood. Fifty to sixty percent of victims of sexual assault are at risk of post- traumatic stress disorder. The definition of post-traumatic stress disorder varies and is continually undergoing change. Basically, it involves a heightened sense of emotional excitement. This sense of elevated emotional excitement can last for days, weeks, months and years. There are many factors that determine its severity. It can lead to jumpiness, sleeping difficulties, irritability and a fear that the events will happen all over again in some form or other. People have a sense of a foreshortened future. The victim’s self-esteem is usually severely damaged and it can take many years for their self-esteem to be restored. There is a difference in the response to loss of self-esteem between the sexes. As a general rule, self-esteem is more fragile in females due to probable cultural reasons secondary to long-term discrimination that many females have had to endure throughout their lives. Other long-term emotional effects include failure to trust others. There can be an associated dislike of being touched. This can be one of the factors which may have a long-term effect on their intimate relations with others. A frequently observed pattern of behaviour is that of repeated extensive washing of the body post sexual assault. This again can go on for a protracted period of time. It is as if they are washing off the physical evidence of what occurred to them. Thoughts of suicide are very common. Acts of deliberate self-harm can occur. Their body has been defiled and hatred of their body can develop. Acts of self-cutting can occur. Usually people who self-cut in these circumstances will describe an increasing sense of agitation and tension prior to the act of self-laceration. The act of laceration itself does not normally induce pain. It is usually associated with a sense of relaxation and an easing of the feelings of inner tension. Stinging from the laceration may occur at a later stage. People self-cut and undertake other actions of self- harm for other reasons in addition to being victims of sexual assault. Self-loathing is a common fall out from being a victim of sexual assault. The witness can have anger control problems following the event or events. This is particularly noted among males who have been victims of sexual assault. Substance abuse, whether it is alcohol or illicit or legal drugs, is a frequent occurrence. Victims indulge in substance abuse in order to lower their level of anxiety and to give themselves some form of emotional release from their agitated mental state. Substance abuse again is more common among males who have been victims of sexual assault. Among females, loss of appetite, with or without restriction of food intake, is a common finding. There may be an element of passivity in their dealings with other life-related issues. This is secondary to an overall sense that they have lost control of their lives, including their bodies. As a result, they will do what is requested of them. This is very much associated with the loss of self-esteem, and it can be seen in those who have been held in slavery,
6 Witness Trauma and Psychosocial Support Module 5 including sexual slavery, and who refused to use chances of escape which may have been available. A sense of guilt, self-blame and that of defilement is very common. Victims can feel that they are different from others. They feel diminished as a human being. Risk-taking behaviour is found, particularly in males. There can be an ambivalence about living and dying. This ambivalence can lead to actions which can be considered to be of an unnecessary and dangerous nature. Their concentration may be impaired and this leads to an impaired memory. In order to remember things, one needs to be able to concentrate in the first place. Many victims develop panic attacks. These are episodes of palpitations that include rapid and powerful heartbeats, and there may be associated profuse sweating, tremor, nausea, breathlessness and possibly a feeling that they are going to die. As with most things affecting mental health,disturbed sleep is normally an early sign that things are amiss. People may have difficulty in initiating sleep and in maintaining sleep. Violent nightmares are frequent. The nightmares may have some association with the events that occurred to them, but it is unusual for the nightmares to be of a repetitive nature. Victims may awake in a state of agitation and this agitation may trigger an associated panic attack. Victims are easily reminded of the events that occurred to them. The reminders can induce increased anxiety and a marked sense of discomfort. As a result, people may avoid watching television programmes, following news events, or talking to others about what occurred. This sense of personal discomfort in relation to the event or events may be the reason for the lack of desire to cooperate with the investigation. The person may have a sense that their life is going to be short and for this reason they may not make plans for the future. There can be a loss of emotional feeling for others. This breakdown in their own personal empathy, when it occurs, may lead to an altered mode of interaction with members of their community. This loss of emotional feeling may account for some victims eventually becoming perpetrators in their own right. The person may perceive themselves as damaged property and there can be a loss of sex drive.
The interview
You should remember that the traumatic events can be recorded in memory in a fragmented manner. This may lead to what may appear to be a story with little clear coherence. Due to the very high sense of excitement during the event, some information is not laid down clearly, if at all, in to memory. There may be periods of amnesia in relation to aspects of the event. If the witness has received psychological therapy, the information provided may be more coherent, as the witness and the therapist try to make sense of what occurred, but this may not reflect reality. This is called memory contamination. The interviewer should always be aware of the emotional state of the witness, both during and after the interview.
Witness Trauma and Psychosocial Support 7 Module 5
The interviewer should acknowledge the difficulty of the procedure for the interviewee and be very aware of its possible impact upon the witness. The interviewer should make a clear and structured introduction and explore the witness’s expectations about the interview before proceeding. In an ideal situation, a mental health expert should be available close at hand so that they can be utilized if required. Care should be taken to establish a good rapport with the witness. When it is necessary to repeat questions to seek clarity, it is important that you explain the purpose for doing this, so that the witness does not perceive that you disbelieve them. You should know when to stop the interview and allow the witness to take a break, and at times you may need to take a break for your own needs as well. Throughout the interview process you should monitor the wellbeing of the witness. You should be aware of the local medical, mental health and social care resources that are available should the witness find the whole process overwhelming.
How the story is communicated
Some witnesses will tell the story in a blasé manner. They do this as a protective mechanism for their own mental health. The blasé manner can be misinterpreted as implying that what occurred to them is not important, or that it was their own fault. This can falsely lead to the investigator minimizing the seriousness of the assault. Others can become very emotional and upset as they tell their story. This is the commonest occurrence. Time and patience are required to obtain a history. Others tell the story with a sense of anger. They can talk of revenge. This can lead the investigator to be afraid to ask pertinent questions for fear of provoking the anger further. It takes skill to manage their anger, your own sense of trepidation and at the same time to obtain all necessary information.
Providing support
It is important at all times that the investigator is never perceived as patronizing. As previously stated, empathy should be demonstrated, but at the same time, it should be within the context of maintaining professional boundaries. It is important to ensure as much as possible that there are support structures for the witness immediately at hand – this includes family, community and others. The investigator should never become angry or frustrated and at no stage should they pass a judgmental comment, either about the witness or about the alleged perpetrators. The investigator has an obligation to ensure the witness’s safety to the best of their capacity. The investigator should be aware that the telling of the event is frequently very traumatic for the witness. They may have been re-traumatized by giving the evidence.
8 Witness Trauma and Psychosocial Support Module 5
Though, frequently, particularly if the interview is done in a professional manner, there is a sense of relief for the witness in being able to tell their story. Sometimes the witness puts the investigator into the role of a saviour, which is not consistent with their true role. It is important to be clear about who you are and what your role is, and to avoid being idealized. The investigator can have their own emotional problems and may have had their own similar adverse experiences. The investigator should remain within the professional role, and should never allow themselves to adopt the victim role by relating some of their own traumatic experiences in a misguided belief of showing empathy and understanding to the witness. This leads to a blurring of roles and a loss of confidence in the investigator by the witness. The investigator should be aware that their own over-identification with the witness can lead to difficulties providing a professional assessment of what has occurred. Sometimes the investigator can be emotionally overwhelmed. This can lead to a protective response of denial, minimization or emotional coldness. Throughout the interview, the investigator should be aware of their emotional and mental responses.
Clien t’s perception
A study done by Dalenberg in 2002 in relation to victims of sexual assault in a non-conflict environment produced some interesting data. Dalenberg demonstrated that 60% of the victims protected their therapist from the details of the trauma; 83% found the therapist had avoided or minimised the trauma; 86% reported at least one episode where the therapist became angry; 48% reported that the therapist had to apologise for comments that they made during the interview. 38% believed that the therapist had behaved cruelly. These findings are shocking in many ways. One would expect that the therapists are highly trained professionals who are experienced in taking information and treating victims of sexual assault. There is little reason to suspect that investigators would behave differently than the therapists in this study. The Dalenberg study became more interesting when it investigated the therapists’ perception of the interviews with victims of sexual assault. Dalenberg found that 90% feared the victim would emotionally deteriorate during and following the interview. 53% felt the intervention had a negative impact upon their own, that is - the therapist’s - life.
Witness Trauma and Psychosocial Support 9 Module 5
Male victims
As noted earlier, the issue of sexual assault upon males is only being recognized in recent years. Sexual assault upon males often forms part of a torture-related process. For males, self-loathing is a prominent feature. The anger response is frequent. This anger response can lead to violence and injury towards others. Reckless behaviour is more likely in males and this may lead to premature death. Younger victims, following sexual assault, can have confusion about their own sexual orientation. As noted previously, substance abuse is more likely in male victims as opposed to female victims.
The child victim
As noted, due to bodily size, children when sexually assaulted are at risk of more severe physical injury. Children naturally have a reduced understanding of what actually has happened to them. They have an impaired ability to communicate their experience. This may be followed by what is called acting-out behaviour, which is attention-seeking and disruptive. Children are more likely to present bodily complaints. These bodily complaints reflect an inability to put into words their emotional distress. Some children develop what is called frozen watchfulness. Following their experiences, they try to remain inconspicuous and will blend into the background, with a high level of hyper-vigilance of the world around them. This is normally associated with strong feelings of anxiety. For others, passivity feelings, already mentioned, can lead to automatic obedience, and this is due to a sense of helplessness. Children are more likely to blame themselves for what has occurred to them. They also can have acts of hostility towards others, including other children. These acts of hostility may be of a sexual nature. Children can have self-mutilation behaviours, the most common being biting themselves. This is usually done in secret. Some can have clinging behaviour, that is their sense of anxiety and fear leads them to cling on closely to a trusted adult. They may regress in their behaviour to that of an earlier age-group. There may be a return to bedwetting, faecal soiling, and generally more immature behaviours for their age. Such children may also demonstrate an exaggerated need for attention.
Interviewing witnesses and alleged victims of gender- based sexual violence is a difficult process. It requires sensitivity, empathy, professional boundaries and a sense of awareness of the mental state of the witness. An awareness of your own mental state throughout the process is a requirement in order to maintain a professional demeanour.
10 Witness Trauma and Psychosocial Support INVESTiGATiON OF WAR TiME SEXUAL ViOLENCE
Approach to Witnesses and Witness Trauma
WHY SHOULD THEY TRUST YOU?
• Their belief system has been severely challenged, especially if the alleged assailants are part of the State. • You are a stranger in what is perceived by them as a very dangerous world. • You may possess characteristics that remind them of the alleged assailants. Particularly be very conscious of the smell of sweat
WHY SHOULD THEY TRUST YOU?
• Smell is one of the most emotionally charged senses. Females have a stronger sense of smell than males. • Your demeanour may imply that you are disbelieving. • They may fear rejection by you if they provide you with the details of what happened. • Sense of shame.
WHY SHOULD THEY TRUST YOU?
• Remember 83% female, 17% male. • Strong social taboos about talking about sexual matters. • Failure to trust an interpreter if there is one required. • Fear of what will happen next. • Fear of their alleged assailants.
WHAT YOU NEED TO DO
• Be clear in stating your role, especially the limits of confidentiality. • Be empathic, but have a professional boundary. • Always maintain their dignity. • Do not demonstrate any sense of horror you may be feeling as it will curtail the amount of information you receive. • Do not make any commitments you will be unable to honour. • Deal with the disclosures in a sympathetic non-judgemental manner. • Refrain as much as possible from saying what you are thinking. WHAT HAPPENS EMOTiONALLY DURiNG A SEXUAL ASSAULT
• Rarely is it just a sexual assault alone. • Other traumas may be also be simultaneously occurring. • Physical injuries may also have occurred. • There are many emotional responses, such as derealisation, panic, anger, terror, freezing, or coping during and after the assault. • Many expect to be killed.
LONG-TERM EMOTiONAL EFFECTS
• Depressed mood. • 50-60% of victims of sexual assault are at risk of post traumatic stress disorder. • Heightened sense of emotional arousal. • This leads to jumpiness, sleeping difficulties, irritability and a fear that it will happen again • Self-esteem usually is damaged. • Failure to trust others. • Dislike being touched. • Extensive repetitive washing. • Thoughts of suicide. • Acts of deliberate self harm.
LONG-TERM EMOTiONAL EFFECTS
• Self loathing • Anger control problems (particularly males). • Substance abuse (self medicating). • Loss of appetite and/or restriction of food intake. This is more likely in females. • Passivity in dealing with other life related issues. • Risk taking (particularly males).
LONG-TERM EMOTiONAL EFFECTS
• Ambivalent about survival. • Sense of guilt, self blame, defilement and being different from others. • Decrease in concentration leading to impaired memory. • Episodes of palpitations, profuse sweating, tremor, nausea, breathlessness and a feeling they are going to die.
LONG-TERM EMOTiONAL EFFECTS
• Disturbed sleep. Nightmares. May waken up in a state of agitation. • Easily reminded of the event. • Tendency to avoid reminders about what occurred. This may lead to a reluctance to cooperate with the investigation. • Flashbacks • Sense that they are going to die at an earlier age. LONG-TERM EMOTiONAL EFFECTS
• Ongoing sense of derealisation. This is a very uncomfortable emotion if prolonged. People feel very distant from the world about them. • Loss of emotional feelings for others. • Loss of sex drive. • Damaged property.
THE INTERViEw
• Remember that traumatic events are laid down in memory in a fragmented manner. This may lead to what may appear to be a history with little clear coherence. • Due to a very high sense of arousal during the event, some information is not laid down clearly, if at all in the memory. They may have had periods of amnesia. • If the victim has received psychological therapy, the information provided may be more coherent as the victim and the therapist try to make sense about what occurred, but this may not reflect reality. This is called memory contamination.
THE INTERViEw
• Be aware of the emotional state of the witness before, during and after the interview. • Acknowledge the hardship of the procedure and its possible impact upon the witness. • Make a clear and structured introduction and explore the witness’s expectations about the interview. • It is ideal to have a mental heath expert available if required.
THE INTERViEw
• Make sure you have established a good rapport. • Explain the purpose of repeating questions when seeking clarity. • Know when to stop and allow the witness to take a break and also to have a break for yourself. • Monitor the well-being of the witness throughout the interview.
THE INTERViEw
• Make sure you can access medical, mental health and social care, if they are required. HOw THE STORY iS COMMUNiCATED
• Some tell the story in a blasé manner. Implying that it was not that important or it was their own fault. This can falsely lead to the investigator minimising the seriousness of the assault. Others become very emotional and upset as they tell their story. They require time and patience to obtain a history. • Others tell the story with a sense of anger. They can talk of revenge. This can lead the investigator being afraid to ask pertinent questions due to a fear of provoking their anger.
PROViDiNG SUPPORT
• Never be patronising. • Demonstrate empathy, but at the same time maintain professional boundaries. • Ensure as much as possible that there are support structures for the victim immediately at hand. Such as family, community or others. • Never become angry, frustrated or pass a judgemental comment.
PROViDiNG SUPPORT
• Never make a commitment you may not be able to keep. • Try to ensure the witness’s safety to your best capacity. • Be aware that the telling of the event is frequently very traumatic for the witness. They may have been re-traumatised by giving evidence. • Sometimes the re-traumatisation may be followed by an attempt at deliberate self-harm.
PROViDiNG SUPPORT
• Frequently though it is followed by a sense of relief. • Sometimes, the investigator can be put into the role of a saviour, which is not consistent with their true role. It is important to be clear about who you are and what your role is. • The investigator should never adopt the victim role by relating some of their own traumatic experiences. This leads to a blurring of roles and loss of confidence in the investigator by the witness.
PROViDiNG SUPPORT
• Over-identification with the witness. This can lead to difficulties in providing a professional assessment. • Sometimes the investigator can be emotionally overwhelmed. This can lead to denial, minimisation or emotional coldness. CLiENT’S PERCEPTiON. (DALENBERG 2002)
• 60% protected therapists from the details of the trauma. • 83% found that the therapist had avoided or minimised the trauma. • 86% reported at least one episode where the therapist became angry • 48% reported that the Therapists had to apologise for comments
CLiENT’S PERCEPTiON. (DALENBERG 2002)
• 38% believed that the therapist had behaved with cruelty • 90% feared the victim would emotionally deteriorate. • 53% felt the intervention had a negative impact upon their own life.
MALE ViCTiMS
• Estimated at 17% of victims. • Often as part of a torture process. • Followed by self-loathing. • Anger response is more frequent. • Can lead to violence and the injury of others. • Reckless behaviour • In younger males can lead to confusion about their sexual orientation. • Suicide risk.
MALE ViCTiMS
Substance abuse more likely than with females. THE CHiLD ViCTiM
• Risk of severe physical injury. • Acting out behaviour. • Bodily complaints. • Frozen watchfulness. That is trying to remain inconspicuous although inwardly feeling severe anxiety. • Automatic obedience due to a sense of helplessness.
THE CHiLD ViCTiM
• Blame themselves for what has occurred. • Acts of hostility. • Self-mutilation, usually done in secret. • Clinging behaviour. • Tearfulness, • Regression: bed wetting, soiling, more immature behaviour for the age. • Exaggerated need for attention. Module 6
Module 6
MODULE 6:
Witness Management, Safety and Protection
Module 6
Witnesses: approaches and protective measures...... 3 Security Culture...... 4 Security of Premises...... 4 Information Security...... 5 Photocopiers and Printers...... 6 Vetting of Staff...... 6 Secure Communications...... 6 Safe Houses and Refuges...... 6 Witness Support Measures...... 7 Witness Welfare and Support...... 7 Witness Support and Protection in Investigation of Cases of Sexual and Gender-Based Violence (SGBV)...... 8 Investigation Phase...... 8 The Investigation Phase – Operational Protective Measures...... 10 Assessment of Threat, Risk and Potential Vulnerability...... 10 Secure and Confidential Contact with Witnesses...... 11 Response to a Threat to a Witness...... 12 Options for Protection at the Investigation Stage...... 13 Self-Protection...... 13 Protective Accompaniment...... 14 Local Mechanisms...... 14 Target Hardening...... 14 Limited Witness Strategy...... 15 Trials...... 15 Pre-trial Stage...... 15 Trial Stage...... 16 Procedural Measures...... 17 Applications for Procedural Protective Measures...... 18 Examples of Procedural Measures...... 18 Post-Trial Phase...... 19 Witness Protection Programmes...... 20 Witness Protection Timeline...... 20 Definitions...... 22 Reading...... 22
Module 6
Witnesses: approaches and protective measures1
Investigators must give utmost priority to the safety of and respect for victims and witnesses. It is no exaggeration to say that a mistake can cost a life, or to note that effective prosecutions have often rested on the courageous testimony of victims. In addition, the reputation of the organization, and our ability to further the cause of justice through our work, bears a direct relationship to how we treat all witnesses. The safety and security of witnesses is commonly referred to as witness protection. It must be understood that witness protection is a part of a larger process of witness management. Witness management has several layers as indicated in the graphic below:
Most importantly it must be recognized that witness protection is a risk driven process. Guidelines for witness protection tend to follow several broad areas of generally accepted international practice: • Development of a security culture. • Operational protective measures - Ensuring the safety of witnesses is generally in the hands of the investigator until the prosecution phase commences. The focus is on protecting the identity of people who have spoken to investigators, effectively ensuring that it is not widely known that the person has been interviewed; protecting the information they have provided and management and mitigation of the risks that witnesses may face. • Procedural protective measures – Once the judicial process takes over from the investigation stage, protective measures will generally be the subject of an order from the court. In the pre-hearing phase, this involves measures such as non-disclosure of the name and address of the witness until shortly before proceedings; orders not to interfere with witnesses and
1 The content of this module’s narrative is based on Chapter 11 of the Investigation Manual for War Crimes, Crimes Against Humanity and Genocide in Bosnia and Herzegovina. The material has been modified for the purpose of this module.
Witness Management, Safety and Protection 3 Module 6
orders for defendants and their legal counsel not to disclose the identity of witnesses. In the hearing phase the emphasis is placed on measures to reduce fear through avoidance of face-to-face confrontation with the defendant, measures to make it difficult or impossible for the defendant or organized criminal group to trace the identity of the witness, and measures to limit the witness’s exposure to the public and psychological stress. • Victim and witness support measures - At all stages various measures to address physical and social well-being of victims and witnesses may be implemented. These can be operational or procedural. In some cases, where there are no other viable alternatives: • Witness protection programme - Entry into a witness protection programme traditionally involves assessment, physical protection, relocation, change of identity or measures of disguising identity and ownership, resettlement, integration into a community and a pathway out of the programme once testimony is completed and/or the threat has diminished. A legislative basis for a witness protection programme is recommended but not essential. The United Kingdom, for example, operated a witness protection programme for ten years before enacting legislation. Many successful programmes have operated through the establishment of internal standard operating procedures. The process for implementation of any of these measures needs to be based on a thorough assessment of threat and risk. Threat relates to the possibility of adverse consequences for a witness or associated person as a result of their assistance to an investigation or their decision to testify in court proceedings. It includes some form of danger to the witness or associated persons. The seriousness of the consequences of the threat will have an impact on the type of response considered. Risk, on the other hand, refers to the likelihood that the threat will occur. Carrying out these assessments is the first step in the process of witness protection. The next is to identify what options are available to mitigate, reduce or deal with the threat. Once options are decided implementation is the challenge. Investigators may be faced with these issues on a daily basis. Some cases will be more serious than others. In each case the recommendation is that they follow this process: assess the threat; assess the risk; identify available options; decide upon a course of action (e.g. prepare an individual protection plan) and implement it. Standard operating procedures need to be established for the implementation of the range of operational and procedural protection measures referred to above and expanded upon in these guidelines.
SECURITY CULTURE Providing a secure environment in which witnesses can testify in confidence starts within the institutions involved. If everyone in the organization takes security issues seriously, understands their security obligations and acts with security in mind then the risks potential witnesses will face are minimized.
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Security of Premises Security culture starts with security of premises used by investigation and prosecution staff and by the court. This involves a range of factors, designed to prevent infiltration of the premises by persons with malicious intent and to prevent leakage of information about the investigation. As a minimum the following should be considered: • Ensure premises are secure from infiltration. • Control ingress and egress. • Secure areas where witnesses are interviewed. • Provide for secure storage of information. • Control access to offices within premises – ensuring that only those people who have a need to be in a particular area can access those areas. • Regular security surveys of premises to ensure that they are secure and intact or that potential breaches of security are identified. • Premises used for hearings or trials should be secure and provide a secure environment for witness testimony. A security standard for these premises should be established and then premises surveyed to see that they meet these standards. Where at-risk witnesses are brought to an official, an additional security survey of the premises should be conducted prior to the arrival of the witness to ensure that security procedures have not been compromised.
Information Security The investigation must make procedural and physical provisions for the secure storage, retention and retrieval of information. Staff members also have a significant obligation with regard to information security. In the course of an investigation it is clear that a considerable amount of sensitive information will be collected. This is particularly the case with regard to information concerning witnesses and information supplied by witnesses. This information must be handled securely and discretely. Access to investigation files and materials should in all cases be limited, as a minimum, to those who have a “need to know”. Each staff member is responsible for ensuring that files that fall within their responsibility are kept securely when not in use. When the files are in use the staff member responsible for them must ensure that details are not inadvertently disclosed. Great care should be undertaken with regard to information about, and provided by, witnesses. Confidential information regarding witnesses, including personal, financial and sensitive details about the witnesses themselves, and their statements or provided information, should be maintained separately in a secure space, accessible only to the relevant staff members and supervisors. Additional care must be taken when operating in the field as the normal safeguards you rely on in headquarters in all probability will not exist. Staff members will have limited ability to secure the information they take with them or the work product created while on mission.
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For highly sensitive witnesses, their statements, etc. should be kept in a secure cabinet and access restricted to the absolute minimum number of staff with a current requirement for access. This information should remain in a secure, locked space when it is not being used. Special care should be taken to ensure that such information remains secure after working hours. An important feature of judicial proceedings relates to their transparency. Widespread reporting and outreach are vital; however this must be balanced with the security needs of the people who are involved. The use of measures such as redacted disclosure, that is, removing any information that may be possibly used to establish the identity or whereabouts of a sensitive or at-risk witness, is crucial to the successful conclusion of cases.
Photocopiers and Printers One major area of potential vulnerability for information security relates to networked printers and photocopiers. Often, people will send sensitive documents to a printer, only to lose track of them because of other distractions. The sensitive document may then remain at the printer for days before being collected. Alternatively, printers and photocopiers may often jam. The jammed documents may remain on the printer or photocopier for days until it is repaired. In many organizations this is a significant source of document compromise. Caution: The best security measures are only as effective as the people implementing them. As a practice, all staff should adopt responsibility for identifying potential security breaches and notifying them to management.
Vetting of Staff Developing a security culture includes the vetting of staff to ensure that individuals with aims to compromise the integrity of an organization, its operations or the information it possesses are not employed or given access to facilities or information. Vetting, as a minimum, involves background checks with previous employers, requirements for applicants for positions to supply a detailed and verifiable personal history, financial disclosure and declaration obligations and fingerprint checks with appropriate criminal records repositories.
Secure Communications Communication devices such as telephones, mobile telephones, radio devices or fax machines are inherently insecure. It is often said there are three people present in any such conversation, the caller, the receiver and the person who is eavesdropping. Sensitive information about at-risk witnesses should not be communicated over such devices. Encrypted telephones, fax machines, radios and satellite antennas for encrypted internet transmissions are now readily available and should be procured and utilized.
Safe Houses and Refuges When discussing issues relating to witness protection, the use of safe houses is often mentioned. In a witness management context the term “safe house” is used to refer to premises that have been identified for use for a particular witness (and perhaps their
6 Witness Management, Safety and Protection Module 6 family), usually on a temporary basis until a permanent relocation solution can be found. It is normally acquired or leased in a name that cannot be connected to the witness or the person or organization managing the witness. It gains its safety by its anonymity and a physical security presence is not usually required. It has the advantage also of allowing the person(s) relocated to adopt some semblance of normal life patterns. Once a safe house has been used once, it is considered to be compromised and is no longer suitable for use as a safe house. “Refuges” are used to provide an interim secure environment for witnesses. They are different from safe houses. They will normally have a range of facilities required for witnesses who are transiting – either on an emergency basis or while they are testifying. Often they will have a support person, medical staff and perhaps a psychologist living in- house. The premises will have been adapted to include security features such as grills over windows, alarms, heavy duty doors and windows, etc. to make them a harder target should they be subject to attack. Importantly, there will be some form of physical security, often in the form of guards to protect the people taking refuge there. Refuges are definitely only an interim measure but because of their heightened security features can be used more than once.
WITNESS SUPPORT MEASURES
Witness Welfare and Support The need to determine and address the support needs of a witness starts before initial contact with the witness and continues until long after court or other proceedings have concluded. The following should be considered: • Needs will differ depending on individuals. • Assessment should cover logistic, security and psychosocial support needs. • These assessments should be carried out by specialist staff. • Investigation staff can assist by collection of information necessary to make assessment. • Assessment of special measures needed to facilitate testimony of vulnerable witnesses. • This can include psychosocial support, support persons, special questioning techniques, provision of remote rooms and electronic transmission of testimony to court room, use of pseudonyms, screens to block witness from defendant, etc. Support for witnesses or the lack of it can be just as significant a factor in securing their testimony as providing for their physical safety and security. As well as having specialist protection staff, there should be specialist support staff to provide for some of the more mundane matters that effect witnesses’ well-being and also to attend to any psychosocial support needs. In determining support needs it is necessary to look at the causes of witness reluctance. Some of the many reasons leading to a reluctance of witnesses to testify include:
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• Intimidating court procedures. • Physical fear – witnesses are often in a weaker position than the accused (and sometimes the victim) and therefore their testimony can be manipulated. When testifying it helps if they were screened from the accused or vice versa. • Economic hardship – people cannot afford to come to court and pay for their accommodation; they need remuneration for this and lost income. • Witnesses may be subject to various forms of direct and indirect influence, e.g. bribes or pressure to change testimony. The absence of formal witness support makes these influences more attractive. • A range of fears or uncertainties brought about through lack of knowledge of the judicial system can inhibit witnesses from testifying. • Fear of undue exposure. • Fear of readjustment into society. • For sexual and gender-based violence cases, stigmatization. Many of these concerns can be addressed by establishing adequate support mechanisms. Some features of support for witnesses include: • Inconspicuous witness transport. • Investigators should be dressed in plain clothes when meeting with potentially vulnerable witnesses and when interacting with them thereafter. • There should be frequent visits to maintain contact with witnesses and to ensure that all their needs are being met. • A secure facility with good living conditions to house witnesses when they are testifying. • Witnesses should not be required to be absent from their homes for extended periods to testify. In short, more than protection is required – there is need for a comprehensive assistance and support package.
Witness Support and Protection in Investigation of Cases of Sexual and Gender-Based Violence (SGBV) Many of the measures outlined are relevant in cases involving victims and witnesses of sexual and gender-based violence (SGBV). However much needs to be done before you get to that point. Investigators need to build trust and confidence in their approach if they are to achieve any sort of productive co-operation with victims and witnesses in this area. Without this trust it is unlikely that they will tell their stories. Investigators may need to utilize community structures in a very strategic way and ensure that anyone working with victims at this level is properly trained. In some cases women will have to be moved, together with their children. This relocation plan needs to be carefully developed. There will be a need to establish or strengthen a safety net in every community.
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INVESTIGATION PHASE Ensuring the safety of witnesses is generally in the hands of the investigator until the prosecution phase commences (operational protective measures). From that stage on, protective measures will generally be the subject of an order from the court or tribunal (procedural protective measures). Key stakeholders during the investigation phase are investigators (be they police, defence counsel or prosecutors); individuals, local officials and civil society groups in the community the witness is from; and a range of non-governmental, human rights and civil society organizations who may have a presence or role in the particular community or the judicial process. The manner of initial contact is crucial to the ongoing assistance of the witness. The investigator must safely establish and maintain contact with witnesses; be fair and frank in dealings with witnesses and take responsibility for the confidentiality of their identity, the information they provide and their protection in this phase. Important principles to remember are: • From the outset all possible steps should be taken to avoid placing witnesses at risk. • Investigators’ actions should not endanger witnesses. • Handle information regarding witnesses appropriately. • Witnesses need to be fully informed of what is expected of them, the dangers they may face and whatever support may be available to them. • Victims/witnesses should be fully informed regarding obligations relating to the release of information to the court, including the provision of information to the defence, while at the same time informing victims/ witnesses of measures that will or may be taken by investigators and the court to protect confidentiality and witness/victim identity. • Consideration and respect for witness needs and requests. • Provision of information to victims and witnesses outlining the protection measures available to them and the limitations of those measures. • Liaison with prosecutors and officers of the court or judicial body to ensure that any actions taken comply with statutory requirements, court rules and directions and will not impact on the admissibility of the witness’s evidence. The investigation process usually commences with research to identify potential witnesses and to assess the possible evidence they may be able to give. In cases involving conflict related crimes it can be expected that even initial contact may place a witness at risk or give rise to the need for some type of support. Therefore, before contact with a victim or witness, the following should occur: • An assessment of the potential evidence the witness may be able to give and its usefulness in proving (or disproving) the matters under investigation and a determination whether it is necessary to approach the witness at all. • Research to determine the current state of well-being of the witness and to identify potential vulnerabilities of the witness. • A threat and risk assessment as to determine whether contact with the witness will place them in physical danger.
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• Implementation of whatever measures are necessary to mitigate any risk that is identified. • In cases where a group of witnesses, because of their nature, may be considered more vulnerable (“potentially vulnerable witnesses”), assess whether psychosocial assessment is needed before the interview process commences (child witnesses, former child soldiers, victims of SGBV or other witnesses or victims who have suffered severe trauma as a result of their experiences may fall in this category). Assess what other support measures may be necessary in order for the witness to be properly prepared for an interview (and any subsequent testimony).
The Investigation Phase – Operational Protective Measures Measures taken in the investigation phase are often called “Operational Protective Measures”. This is because they can be implemented by an investigator without being underpinned by legislative or formal procedural frameworks. As stated above, operational measures are normally based on three principles: • The focus is on protecting the identity of people who have spoken to investigators, effectively ensuring that it is not widely known that the person has been interviewed. • Protecting the information they have provided, and • Management and mitigation of the risks that witnesses may face. A fourth element to consider is the adoption of an investigation strategy that has at its centre a principle of minimal use of witnesses.
Assessment of Threat, Risk and Potential Vulnerability
The starting point in determining what protection actions are necessary is to carry out an assessment of threat, risk and potential vulnerability. Threat relates to the possibility of adverse consequences for a witness or associated person as a result of their assistance to an investigation or their decision to testify in court proceedings. It includes some form of danger to the witness or associated persons. Risk on the other hand refers to the likelihood that the threat will occur. Vulnerability refers to special measures that victims or witnesses may need because of factors such as their age, gender, the nature of the crimes they were a victim of, whether they have experienced trauma and other individual circumstances. The level of threat is determined by assessing the nature of the threat, whether actual, perceived or implied, together with the consequences of the threat if carried out. A threat and risk assessment matrix, similar to the one below, may be used to determine the level of threat and risk.
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THREAT RISK: Determined by assessing the likelihood that the threat will be CONSEQUENCES carried out Certain Highly likely Possible Remote Death or serious injury Major Major Major Minor Violence – some injury Major Major Serious Minor Damage to property Serious Serious Minor Minor No physical injury Minor Minor Minor Insignificant No damage to property Minor Minor Insignificant Insignificant
In the examples in the above matrix, where the consequences of a threat would be death or serious injury, and the threat is certain to be carried out, this represents a major risk warranting immediate action. Conversely, where the threat involves no physical injury or damage to property and the likelihood of it being carried out is remote, then the risk would be insignificant and it may be that no further action is warranted. With regard to vulnerability, it is important to assess potential vulnerability at the outset and take measures to deal with the possible impact an interview will have on a vulnerable witness. Where the assessment indicates potential vulnerability then measures such as providing psychological or other support mechanisms should be implemented.
Secure and Confidential Contact with Witnesses This is normally addressed by adhering to well thought out operational procedures designed to eliminate or minimize any potential risk to the witness. It is recommended that investigators: • Exercise extreme care when contacting witnesses and determine how to safely contact witnesses in the locality they are working in. • Assess threat, risk and also vulnerability and the potential need for psychosocial support before initial contact with victims or witnesses. • Provide witnesses with contact numbers so that they can call for emergency intervention if necessary. • Do not assume that communication lines (particularly telephone and internet) are secure or that all contacts, even recommended ones, are trustworthy. • Consider making initial contact through a third party such as a trusted local person or a representative of an established international organization. • Consider carefully the location of the meeting, vehicles to be used; dress appropriately. • Select interpreters carefully. • Make arrangements with witnesses, after initial contact, as to the method of contact and venue for further meetings. The witness may be able to suggest a method of communication that does not arouse suspicion. • Ask the witness if they are comfortable with any contact via the telephone/ internet and establish a communications protocol. • Be sure that the witness is aware of the limitations of protective measures.
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Victims/witnesses may be under the impression that your ability to protect them is much greater than it is in reality. • Inform witnesses that even if they choose not to sign a statement or to testify, the investigator may be required to reveal the witness’s identity and particulars to the court. • Consider carefully the implications of providing a witness with a copy of their witness statement (often, witnesses are interviewed in the vicinity of where the crimes were committed and it is not in the interest of the witness to have in their possession a document that clearly indicates that assistance relating to a prosecution has been provided). • Advise the witness not to inform other witnesses or persons about their contact with investigators. Witnesses have in the past placed themselves at risk by making it known that they provided information to investigators. • Inform the witness about the course of action the witness should take if they receive a threat or become fearful.
Response to a Threat to a Witness Where a witness reports that they have received a threat with regard to their co-operation consider the following: • Determine the basis for victim/witness concerns about their safety. • Assess the threat to the witness – the nature of the threat, the author of the threat, the means suggested to carry out the threat, its consequences and the likelihood of it being carried out. • Ascertain if others have been threatened as well. • Determine if any actions have been taken by any persons to address the threat source. • Evaluate the threat source’s capacity to find out information about the witness’s contact with the investigating organization, court or tribunal (i.e. find out the intelligence-gathering capacity and methods of the suspected perpetrator of the threat). • Where possible, seek corroborating evidence of the threat. Identify and interview any witnesses, try to obtain telephone records if threats were made over the telephone, etc. • Strongly discourage the witness from taking any action to confront/address the perpetrator or suspected perpetrator of the threat outside the court if possible. • Discuss with witnesses steps for self-protection. • Inform witnesses about the protective measures that can be taken by others. • If circumstances permit and the investigator believes that there will be an appropriate reaction, the witness should be encouraged to report the threat to the local authorities or to organizations set up to receive such concerns. This is important because the investigator may only be in the area for a short time and, therefore, may not be in a position to respond in a timely or realistic manner to any threat or perceived threat.
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• If a report is made to local authorities, obtain a copy of that report and the local authorities should be made aware that the investigator and tasking body plan to follow the case. • Avoid unrealistic promises. • Research situation-specific threats to safe communications, guidelines and the intelligence-gathering capacity of the suspected perpetrators and others. • Take care when making direct contact of any kind. • Utilizing local police officers or community organizations to provide interim protection may be an option. • Temporary measures, such as physical security or temporary relocation are another option. • Participation in a Refugee Resettlement Programme may be an option.
Options for Protection at the Investigation Stage In the investigation stage the range of protection options available can generally be grouped under the following headings: • Self-protection. • Protective accompaniment. • Local mechanisms. • Target hardening. Where these measures are considered insufficient, measures such as temporarily distancing the witness from the source of the threat or, in extreme cases, entering the witness into a witness protection programme may be utilized.
Self-Protection
• Adopting different and unpredictable routines. • Measures to secure home and work place, such as installing superior locks on doors and windows, intruder alarms, lighting gardens and surrounding areas at night. • Hiring personal security guards to provide personal protection or security for homes and workplaces. • Arranging regular patrols of police or other officials. • Provision of a mobile telephone with an emergency link to a designated official/community liaison officer who will have their phones switched on 24 hours daily, to maintain regular contact with their beneficiaries and who are ready to intervene with the assistance of relevant mechanisms (security guard, military, police) should the beneficiary come under imminent threat. • Static protection by the police or security guards. • Have a list of important telephone numbers to seek emergency physical protection if needed.
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Protective Accompaniment
• Escorting an individual 24 hours a day. • Being present at an office of a threatened witness. • Accompanying witnesses returning to their home communities. • Other organizations (CSOs, IOs and NGOs) may assist in ensuring witness safety through providing introductions, premises and other forms of logistical support. • Care should be taken if using this as an option, to ensure that the CSO, IO or NGO is not violating any national laws, its mandate or its permissions to be present in a country by providing such assistance.
Local Mechanisms
• A different approach is to set up local response mechanisms, train and equip local officials to intervene and to provide security and extraction if required. • Presence (patrolling) by community officials, organizations, human rights defenders or other community based officials as appropriate at the location where the protection beneficiary lives or works, in order to indicate to potential perpetrators that they benefit from community support and surveillance. • Use of visibility of international agencies. • Publicity to expose the sources of threat. • Temporary shelter in private (civil society) shelter facilities or facilities linked to any CSO or HRO that may be present. (NB: Shelter is provided only as a very last resort and for a very limited period in a situation of imminent threat until an alternative safe shelter is identified or the threat is no longer imminent.) • Relocation or separating the witness and the threat through distance can often suffice for protection. • Provision of tickets, travel costs and run money for the witness to move somewhere else. • Provision of transport to a “safe haven” by vehicle or aircraft provided by police, civil society or other organization.
Target Hardening2 • Temporary change of residence to a relative’s house or a nearby town. • Close protection, regular patrolling around the witness’s house, escort to and from work and other engagements, and provision of emergency contacts. • Arrangement with the telephone company to change the witness’s
2 UNODC, Witness Protection Manual 2008.
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telephone number or assign them an unlisted telephone number. • Monitoring of mail and telephone calls. • Installation of security devices in the witness’s home (such as security doors, alarms or fencing). • Provision of electronic warning devices and mobile telephones with emergency numbers. • Minimizing of public contacts with uniformed police. • Use of discreet premises to interview and brief the witness. • Information security. • Establishing a community alarm system. • Monitoring movement of people.
Limited Witness Strategy
In keeping with the principle of not placing witnesses at risk at all in the investigation phase, establishing a limited witness strategy may reduce the number of witnesses potentially placed at risk. In a limited witness strategy detailed research and analysis is conducted to establish patterns of conduct, identify potential offenders and the command and control structures they operate under. (For example, a structure that established superior responsibility, command responsibility or facilitates a JCE.) From the initial research and analysis a programme of document collection and collection of physical evidence is established to fill identified information gaps. At this point you should also consider if potential evidence is to be gained by using electronic surveillance, intercepted communications (mobile telephones in particular) and physical surveillance. Using these methodologies it is either the documents or physical evidence produced or the investigators testimony that becomes the vital evidence, rather than the statements of victims and witnesses. When it comes to assessing victim or witness testimony, you look at the threat and risk assessment and the potential value of the witness testimony and whether you can gain similar evidence elsewhere from a non-threatened source, and then make a judgment call as to whether you need to contact the witness at all.
TRIALS
Pre-trial Stage The pre-trial stage refers to the period of time after the investigator has filed their report and preparations are made to bring a witness before a court to hear their testimony. As is the case in the investigation phase, the main objective at this point is ensuring that it is not widely known that a witness has participated in an investigation, or will be involved in any hearing. Procedural orders to protect witnesses in the pre-hearing stage are normally the subject of a formal application to the court, outlining the reasons why the protective measures are necessary and the nature of the protective measures sought. This is seen as a necessary
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step to ensure a balance between the rights of an accused and the rights of a victim or witness. Examples of protective measures that have been granted in international courts include: • Non-disclosure of the name and address of the witness until shortly before proceedings. • Orders not to interfere with witnesses. • Orders for parties involved in the proceedings not to disclose the identity of witnesses. • Notification of local police officials that a witness is under threat and that they have protection obligations. • Use of electronic devices within the witness’s home or work place, to alert police in cases of emergency. • Assessment of special measures to facilitate testimony of vulnerable witnesses. This can include psychosocial support, support persons, special questioning techniques, provision of remote rooms and electronic transmission of testimony to court room, use of pseudonyms, screens to block witness from defendant, etc. • Accompaniment by international agencies. • Close personal protection in extreme cases. • Various forms of relocation (temporary or permanent) until the threat subsides.
Trial Stage Protective measures at the trial stage are also subject to procedural requirements. They are normally granted by virtue of an order of the court upon the application of the party bringing the witness to the proceedings. The application must demonstrate good reasons why the protective measures are required and how the measures sought will address the particular concerns set out in the application. There can be many reasons behind a request for protective measures or support for witnesses at this point. Some of the more common reasons are as follows: • Fear of retaliation by the defendant or people associated with the defendant. • Concern that the witness will be unable to return home if the testimony becomes public knowledge. • Psychological consequences. • Sense of shame, e.g. SGBV victims. • Trauma of reliving difficult, painful experiences. • Fear of having to face the accused. • Cross-examination. • Medical problems. • Care for relatives required while witness is at court. • Reimbursement of lost wages. • Availability of emotional, psychological and medical support.
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• Post-hearing risk or harassment. • An overall climate of fear of parties to the conflict. • An environment where threats can be made with impunity. • Physical fear. • Propensity for witness manipulation because of their social position vis-a- vis an accused. • Lack of support mechanisms to secure witnesses. • Economic hardship. • Direct and indirect influence (e.g. bribes or social pressure to change testimony). • Lack of people’s trust in the State authorities and their functioning. In many instances these fears can be addressed through the implementation of procedural measures.
3 3 Procedural Measures
Procedural measures can be grouped into four general categories depending on their purpose: • Measures to reduce fear through avoidance of face-to-face confrontation with the defendant, including the following measures: o Procedural revision of questions. o Use of pre-trial statements (either written or recorded audio or audio- visual statements) as an alternative to in-court testimony. o Removal of the defendant or accused from the courtroom. o Testimony via closed-circuit television or audio-visual links, such as videoconferencing. • Measures to make it difficult or impossible for the community, a defendant or organized criminal group to trace the identity of the witness, for example: o Shielded testimony through the use of a screen, curtain or two-way mirror; o Anonymous testimony. • Measures to limit the witness’s exposure to the public and psychological stress: o Change of the hearing venue or hearing date. o Removal of the public from the courtroom (in camera session). o Presence of an accompanying person as support for the witness. • Support measures to deal with economic issues, health issues and psychological issues. Those measures may be used alone or in combination to produce a greater effect (for example, videoconferencing with shielding or anonymity with face distortion).
3 UNODC, Witness Protection Manual 2008.
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Applications for Procedural Protective Measures4 The elements typically taken into account by courts when ordering the application of procedural measures are: • The assessment of threat and risk. • Nature of the crime (organized crime, sexual crime, family crime, etc.). • Type of victim (child, victim of sexual assault, co-defendant, etc.). • Relationship with the defendant (relative, defendant’s subordinate in a criminal organization, etc.). • Degree of fear and stress of the witness. • Importance of the testimony.
Examples of Procedural Measures • Redacted disclosure, delayed disclosure, disclosure in summary form. • Order for non-disclosure of witness details, including all personal identification information such as name, date of birth, address, occupation, place of employment and any other family identifiers. • Suppression of a witness’s identification details until a certain point in time in proceedings (this offers the least protection to the witness, but has the advantage that it is the least oppressive on the witness). • Measures to prevent disclosure to the public or the media of the identity of the witness or victims and identifying details. • Expunging names and identifying information from the courts’ public records. • Non-disclosure or limitations on the disclosure of information (such as details of the witnesses presence in a particular location at a specific time) concerning the identity and whereabouts of witnesses. • Assignment of a pseudonym. (e.g. “witness A”) • Closed court testimony. • Voice distortion and distortion of facial features via camera. • Positioning of witness so that they can only be seen by judges, counsel and accused. • Delayed disclosure (of unredacted statements and identifying details). • Rules that prevent the prosecutor, the defence or any other participant in the proceedings, from disclosing such information to a third party. • Measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television, videoconferencing or satellite link. • Use of audio-visual recording of statements made by witnesses during the preliminary phase of the procedure. • Use of out of court statements given during the preliminary phase of the procedure as evidence in court or use of witness’s pre-hearing statement instead of in-court testimony.
4 UNODC, Witness Protection Manual 2008.
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• Presence of an accompanying person for psychological support. • Removal of the defendant or the public from the courtroom. • A useful practice, prior to testimony, is to take the witness into the empty court room to familiarize them with the courtroom, the witness box and surroundings and to explain how proceedings are conducted. • In some exceptional circumstances granting anonymity to a witness in criminal proceedings. • Witness relocation and change of identity. • Where relocation of witnesses is considered necessary to ensure their physical safety, this should occur before the disclosure of evidence to the defence. Protective measures are considered as the preferred option, subject to them providing adequate security for the witness.
Post-Trial Phase While in many instances the need for protective measures may end when a hearing ends, this is not necessarily the case and should not be taken for granted. Surveys of witnesses who have given evidence in judicial proceedings with regard to serious crimes indicate that further support may be needed in the post-hearing phase. As a minimum there should be arrangements in place for: • Further threat and risk assessment. • Observation of witnesses in order to detect and address negative consequences. • Consideration of whether long-term support is needed. • Follow-up with results of cases and mechanisms to implement further support if required.
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WITNESS PROTECTION PROGRAMMES
Traditionally, a witness protection programme involves assessment, physical protection, relocation, change of identity or measures of disguising identity and ownership, resettlement, integration into a community and a pathway out of the programme once testimony is completed and/or the threat has diminished. Eligibility for witness protection is in most cases limited to situations where the testimony is essential to successful prosecution of people responsible for serious or organized criminal activity. A credible and a real threat to the witness and/or associated persons must exist for them to enter a witness protection programme. Further details on witness protection programmes can be found in Chapter 11 of the Manual on Investigation of War Crimes, Crimes against Humanity, and Genocide prepared by the Institute for International Criminal Investigations and OSCE Mission in Bosnia and Herzegovina
Witness Protection Timeline The timeline below was prepared to provide a sense of the decision-making process and what happens operationally when a threat to a witness occurs.
THREAT/RISK - Possible existence of threat/ risk to witness is recognized or reported - Complete pro forma witness details, details of threat - Carry out assessment of threat and risk. This can be done on the spot, but will also probably require a formal internal assessment process by management.
OPTIONS - No action required – identity unknown, appropriate measures have been taken during contact and interview phases to mitigate threat and risk - Self-protection measures - Formal protective measures - Entry to witness protection programme
EXISTENCE OF THREAT - Is witness already at risk? AND RISK IDENTIFIED - Is threat immediate? - Does it require immediate action, or - Will risk arise at some foreseeable time or event in the future? - Can witness remain in situ until witness protection programme process is activated?
IMMEDIATE RISK EXISTS - Plans must be made to remove witness from threat until full options can be assessed - Requesting organization must have the capability to do their own extraction - Requesting organization must have their own transitional facility in which to place witness and associated persons until formal process can be implemented - Requesting organization must be prepared to maintain these interim arrangements for long periods, in some instances years, before the witness is accepted into a programme FUTURE RISK - Prepare timeline of risk and actions to mitigate risk
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PARTICIPANT - Agreement to participate - Associated persons identified - Travel documents secured - Commitment to secrecy - Non-contact agreement with relatives, etc.
EXTRACTION - Removal of witness from hostile environment - National or international relocation - Travel arrangements – air, vehicle, train, other - Arrangements with each country the witness will transit through for security, passage through airports, visa arrangements, safe houses if needed - Decision on whether transit will be overt or covert - Interim placement in safe house until formally accepted into programme - Psychological testing, medical & other support mechanisms - Possible further assessment processes/interviews - Preparation of emergency travel documents - Rearrange financial and business affairs
RELOCATION TO - Placed in a community PROGRAMME - New identity - No further contact with family friends or former community - No further contact with requesting organization - All contacts are through the witness protection programme host - Re-education - Vocational training - Financial support - Language training - Access to health, welfare and social security services - Education for children
TESTIMONY - Witness meets obligations to testify
PATHWAY - Assessment mechanism to determine whether level of risk has diminished - Appropriate training to allow total integration into new community (if this has not already occurred) - Competency in self-protection measures
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DEFINITIONS
Investigators Includes any individual whose official function is to conduct investigations in support of transitional justice processes. It may include police officers, prosecutors, defence counsel, human rights officers and human rights defenders.
Operational Protective Operational measures are generally taken at the administrative level by Measures a court, commission of inquiry; investigative office and/or the competent witness protection authority, following an assessed level of risk relating to an identified source of threat. Procedural Protective Procedural protection measures are granted by judge(s) or the applicable Measures judicial authority. In most circumstances these measures aim at shielding the identity of a witness from the public during court proceedings. Victims A person who has had a crime committed against them. Victims can also be witnesses. Witnesses Any person who has relevant and reliable information that relates to a matter under investigation or proceedings in a judicial process. In these guidelines wherever the term witnesses is used it can be taken to include victims. Safe Houses Safe and anonymous premises that have been secured for use for a particular witness (and perhaps their family), usually on a temporary basis until a permanent relocation solution can be found. Refuges Secure premises operating as facilities for witnesses who are in transit – either on an emergency basis or while they are testifying.
Threat Relates to the possibility of adverse consequences for a witness or associated person as a result of their assistance to an investigation or their decision to testify in commission or court proceedings. It includes some form of danger to the witness or associated persons. Risk Risk on the other hand refers to the likelihood that the threat will occur.
Vulnerability Refers to special characteristics of victims or witnesses such as their age, gender, the nature of the crimes they were a victim of, or whether they have experienced trauma and other individual circumstances that may make them more vulnerable to adverse circumstances if called to testify. Hearings Refers to any type of formal judicial hearing, whether in a criminal court or in a commission of inquiry. Non-disclosure In most judicial proceedings there are requirements to disclose information to any person who may be adversely affected by the testimony. Non-disclosure refers to exceptions to these provisions. Redaction The blanking out or removal of certain information from documents, testimony or other forms of recording people’s testimony. Witness Protection A programme specifically designed to provide physical and psychosocial Programme protection to participants in justice processes.
Witness Protection Unit A unit or team designed to operate a witness protection programme.
READING - UNODC, Protection of Witnesses in Criminal Proceedings Involving Organized Crime. - Commonwealth Secretariat (Report And Guidelines), Best Practice Guide For The Protection Of Victim/ Witness In The Criminal Justice Process (The Guide)
22 Witness Management, Safety and Protection WITNESS MANAGEMENT
APPROACHES, PROTECTIVE MEASURES AND WITNESS PROTECTION PROGRAMS
WITNESS MANAGEMENT
THE NEED
• The role of victims and witnesses in justice and human rights mechanisms. • Legal obligations: • Compellable. • Disclosure • Categories of witnesses: • Fact witnesses, experts. • Victims, vulnerable witnesses, eg children SGBV victims, women, traumatised witnesses. • The dangers they face because of their cooperation. HUMAN RIGHTS FOUNDATION FOR WITNESS PROTECTION
• International Covenant on Civil and Political Rights. • Convention on the Elimination of All Forms of Discrimination against Women. • Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly in 1985. • Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). • Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. • The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
THE ROLE OF LAW ENFORCEMENT OFFICIALS
• Traditionally, it is the function of police organisations in a society to protect life and property. • This is normally done by adherence to standard operating procedures.
OVERVIEW
• Do not endanger witnesses. • Handle information regarding witnesses appropriately. • Witnesses need to be fully informed. • Respect. • Consider witness needs. • Liaise with officers of the Court.
SECURITY CULTURE
• Secure premises. • Information security. • Vetting of all staff. • Use of safe houses and refuges. • Robust witness support measures.
PROTECTIVE MEASURES
• Ensuring the safety of witnesses is generally in the hands of investigators or Commission staff until formal hearings commence – operational protective measures. • From that stage on, protective measures will generally be the subject of an order from the Commissioners – procedural protective measures. FOCUS
• The focus is on protecting the identity of people investigators have spoken to, effectively ensuring that their cooperation is not widely known. • Protecting the information they have provided, and • Management and mitigation of the risks that witnesses may face.
WITNESS WELFARE AND SUPPORT
• The need to determine support needs of witnesses and the requirement to address them starts before initial contact with a witness and continues until long after formal hearings have concluded.
SUPPORT REQUIREMENTS
• Needs will different depending on individuals. • Assessment, which covers logistic, security and psychosocial support needs. • These assessments should be carried out by specialist staff. • Investigation staff can assist by collection of information necessary to make assessment.
PROTECTION FOR WITNESSES
• Protection of witnesses is a risk driven approach. • It requires on assessment of the level of threat and risk that they face before, during and after the trial. • This assessment should point to mitigating actions that can be implemented.
THREAT AND RISK ASSESSMENT
• Threat relates to the possibility of adverse consequences for a witness or associated person as a result of their assistance to an investigation or their decision to testify in court proceedings. It includes some form of danger to the witness or associated persons. • Risk on the other hand refers to the likelihood that the threat will occur. TRACE EVIDENCE IN SV INVESTIGATION
OPERATIONAL MEASURES
• Intervention by law enforcement mechanisms (where available). • Self protection. • Target Hardening. • Protective support or accompaniment. • Temporary measures, such as physical security or temporary relocation is another.
OPERATIONAL MEASURES
• Information security is also a crucial component of providing protection for witnesses. Information security includes securing information systems and secure storage of material gathered.
SELF PROTECTION
• Hiring personal security guards to provide personal protection or security for homes and workplaces, • The installation of alarms and other electronic devices, • Arranging regular patrols of police or other officials and • Adopting different and unpredictable routines. TARGET HARDENING
• Temporary change of residence to a relative’s house or a nearby town. • Close protection, regular patrolling around the witness’s house, escort to and from work and other engagements, and provision of emergency contacts. • Arrangement with the telephone company to change the witness’s telephone number or assign him/her an unlisted telephone number. • Monitoring of mail and telephone calls. • Installation of security devices in the witness’s home (such as security doors, alarms or fencing). • Provision of electronic warning devices and mobile telephones with emergency numbers. • Minimizing of public contacts with officials. • Use of discreet premises to interview and brief the witness. • Information security. • Establishing a community alarm system. • Monitoring of movement of the people.
PROTECTIVE ACCOMPANIMENT
• Escorting an individual 24 hours a day • Being present at an office of a threatened organization • Accompanying refugees returning to their home communities • Serving as international observers at elections and demonstrations.
OTHER OPTIONS AT THE INVESTIGATION STAGE
• Utilising law enforcement mechanisms (where available) when a threat occurs is one such feature. • Temporary measures, such as physical security or temporary relocation is another.
NGOs & IO’s
• Other organisations may assist in ensuring witness safety through providing introductions, premises and other forms of logistical support. • Care should be taken if using this as an option, to ensure that the IO or NGO is not violating any national laws in providing such assistance. LOCAL RESPONSE MECHANISMS
• A different approach is to set up local response mechanisms, train and equip local officials to intervene and to provide security and extraction if required
LOCAL RESPONSES
• Use of visibility of international agencies. • Publicity to expose the sources of threat. • Demarches with the suspected sources of threats, notably if they are linked to the government or known as de facto influential in the region where the beneficiary lives. • Presence (patrolling) by community officials, organisations, human rights defenders or other community based officials as appropriate at the location where the protection beneficiary lives or works, in order to indicate to potential perpetrators that he/she benefits from community support and surveillance.
RELOCATION
• Relocation, or separating the witness and the threat by distance can often suffice for protection. • Provide tickets, travel costs and run money for the witness to move somewhere else. LIMITED WITNESS STRATEGY
WITNESS CONCERNS (LEADING TO PROTECTION REQUESTS)
• Fear of having to face accused. • Cross examination. • Retaliation. • Unable to return home. • Fear that their assistance will become public knowledge. • Psychological consequences
TESTIFYING
• Sense of shame eg sexual violence victims. • Trauma of reliving difficult, painful experiences. • Medical problems. • Care for relatives required while witness at Court. • Reimbursement of lost wages. • Availability of emotional, psychological and medical support. • Post trial risk or harassment.
PROCEDURAL MEASURES TO:
• Reduce fear through avoidance of face-to-face confrontation with the defendant. • Make it difficult or impossible for the perpetrators or perpetrator groups to trace the identity of the witness. • Limit the witness’s exposure to the public and psychological stress. • Deal with economic issues, health issues and psychological issues. • Assessment of special measures to facilitate testimony of vulnerable witnesses • This can include psychosocial support, support persons, • Special questioning techniques, • Provision of remote rooms and electronic transmission of testimony to court room, • Non-disclosure orders. • Use of pseudonyms. • Screens to block witness from defendant. • Closed hearings. • Redacting hearing records. • Secure storage of records, and • Prerogative powers such as restraining orders to avoid an accused coming into contact with the victim/witness (need the police to enforce these orders). • Control questioning of witnesses to avoid intimidation or harassment. • Record keeping and archiving. Courts can order non-disclosure of written testimony to the public and restricted or delayed disclosure to perpetrators. • Timely disposal of cases. POST HEARING
• Observation of witnesses in order to detect and address negative consequences. • Consider whether long term support is needed. • Follow up with results of cases and also mechanism should further support be required.
OTHER OPERATIONAL OPTIONS
• Monitoring the procedure of handling witnesses. • Identifying referral pathways/channels (ie psychosocial, medical support and sometimes physical protection). • Restructuring of courtroom settings and infrastructure to limit access to witnesses. • Adopting practical guidelines/protocols to guide practice at the Commission. • Training of personnel.
WITNESS PROTECTION PROGRAM
• Traditionally involves assessment, physical protection, relocation, change of identity or measures of disguising identity and ownership, resettlement, integration into a community and a pathway out of the program once testimony is completed and/or the threat has diminished.
WITNESS PROTECTION UNITS
• Are usually established with a level of independence from stakeholders and require specialist management, staffing and funding. • They should be a service available to all involved in the justice process. • It is recommended that a legal basis for their operations is established.
WITNESS PROTECTION
• It is expensive, stressful and not always possible. It requires a difficult readjustment for the witness. • Protective measures should be considered as the initial option.
• Witness protection timeline.docx THE WAY FORWARD
• Develop deliberate measures within the investigation to safeguard the privacy, integrity and safety of witnesses with the aid of best practices and common standards – ie protocols/guidelines and monitor staff performance through evaluation, change of infrastructure. • Cooperation: develop institutional partnerships with the Police, NGOs to support initiatives to provide protective measures for witnesses. • Create clear responsibility for safety of witnesses in the organisation
RESEARCH
For further research: • UNODC Protection of Witnesses in Criminal Proceedings Involving Organized Crime. • Commonwealth Secretariat (Report And Guidelines) Best Practice Guide For The Protection Of Victim/Witness In The Criminal Justice Process (The Guide) • Protection Manual For Human Rights Defenders • IICI Investigators Manual, Chapter 16.
Questions??
Module 7
MODULE 7:
Interviewing Skills 2 Interviewing Skills MODULE 7
Introduction...... 3 What is an Interview?...... 4 Key Considerations: Witnesses...... 5 Vulnerable and Intimidated Witnesses...... 5 Vulnerable Witness...... 5 Intimidated Witnesses...... 5 Significant Witnesses...... 6 Reluctant Witnesses...... 6 Hostile witnesses...... 6 Interview Principles...... 7 The PEACE Model...... 8 Providing structure: PEACE...... 8 1. Planning and Preparation...... 9 1.1 How this interview might contribute to the investigation...... 9 1.2 What is known about the interviewee and what needs to be established?.10 1.3 Legal requirements...... 11 1.4 Elements or Offences? The ‘Points to Prove’...... 12 1.5 Practical arrangements...... 12 1.6 Pre-interview disclosure of evidence and management of active defence during a suspect interview...... 14 1.7 Prepared statements prior to interview...... 14 2. Engage and Explain...... 16 2.1 Reason(s) for the interview...... 17 2.2 Roles & Routine(s) that will be adopted...... 17 2.3 Purpose and Objective of the interview...... 18 Account, Clarification and Challenge Account Phase ...... 20 3. Account Phase...... 20 How to build professional relations?...... 20 3.1 Account...... 22 3.1.1 Listening Skills and Information Management...... 23 3.1.2 Management of Information...... 24 3.1.3 Setting the scene...... 25 3.2 Clarification and Witness Memory...... 25 3.2.1 Identifying topics/episodes...... 25 3.2.2 Clarification and Communication Issues...... 27 3.2.3 Clarification Process...... 28 3.3 The Challenge...... 28 3.3.1 When a challenge is required...... 28 3.3.2 The process of challenge...... 29 3.3.3 The timing of your challenge...... 29 3.3.4 Seek to clarify, not confront...... 30 3.3.5 Ask for an explanation of the discrepancies...... 30 3.3.6 The role of the second interviewer and/or interpreter...... 30 4. Closure...... 31 5. Evaluation...... 32 Acknowledgements and References...... 35 Module 7
Interviewing Skills
INTRODUCTION
An everyday part of an investigator’s role is the interviewing of victims, witnesses and suspects. Interviewing is the means by which vital information and evidence is obtained. Interviewing is also the point where the work of criminal investigators, human rights investigators and those gathering information for general advocacy purposes share a common purpose: to obtain reliable and accurate information. In criminal investigations, specific skills are required to obtain this information in a way that conforms to the laws of evidence pertaining to the Court exercising jurisdiction in the matter. This guidance will not focus on the domestic or international laws that, as individuals, you should adhere to when necessary. Instead the focus of the course will be on the development of the necessary professional knowledge and skills required to communicate with others whilst conducting investigative interviews. Skilled interviewing is not just about obtaining evidence of crimes. The underlying foundation of any interview is to ensure that any information obtained is not improperly influenced or modified by the manner in which the interview is conducted. Onthat premise alone, similar standards of interviewer behaviour are required regardless of your professional background. While many consider the police detective to be the ‘gold standard’ in interviewing skills, in many cases that is sadly a misperception. Historically, within the United Kingdom, the training of investigators to conduct investigative interviews had been devolved to individual police services, which resulted in inconsistent professional standards. This was addressed in the early 1990’s when Professor John Baldwin, a leading researcher into investigative interviewing, published a report based on police interviews in which he stated that: “The main weaknesses that were identified were a lack of preparation, a general ineptitude, poor technique, an assumption of guilt, unduly repetitive, persistent or laboured questioning, a failure to establish the relevant facts and the exertion of too much pressure.” These comments reflected investigative interviews that frequently led directly or indirectly to cases being lost at court, thus highlighting the need to train investigators to conduct interviews with professionalism and integrity at all times. Professor Baldwin’s model of investigative interviewing, the ‘PEACE’ model, addressed these issues and is, in the UK, the nationally accepted method of conducting professional investigative interviews with integrity. These standards are now being adopted by other nations across the world. The adoption of the PEACE method has significantly improved the effectiveness of investigative interviewing.
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So how can we achieve this standard from an interview perspective? First we adopt the PEACE model and learn how to use it correctly. However, before we move on to the actual model, we have to clarify our understanding of what constitutes an ‘interview’ and what we understand the term ‘witness’ to mean. These are key considerations in our understanding of how we plan and prepare for interviewing both suspects and witnesses. Having clarified our understanding on those points we will need to identify the standard principles of the interviewing process that can be applied to a broader international setting and underpin interviewing practice. We will begin with establishing what an interview is.
What is an Interview?
There are many people who interview for a living, such as counsellors and other health professionals as well as lawyers, the police and human rights officers. All of them have different objectives but use the same basic methodology to elicit information –their skills in human communication. All of these professional dialogues use the generic term ‘interview’ to describe what they are doing. However, in order to define and distinguish the different types of interviews from each other one has to examine the interviewer’s ‘purpose’ and the ‘context’ in which the interview is conducted. The contrast between the ‘purpose and context’ of a police officer and a counsellor is obvious, but there are even more subtle differences that are not so obvious. Let’s take as an example the human rights officer and police officer interviewing witnesses in relation to war crimes. They may share the same context and the same purpose in interviewing these people, but there are subtle and important differences that legally define what constitutes an interview. As a guide we can use the definition of an interview as set out in the laws of England under Code C of the Police and Criminal Evidence Act (PACE) 1984. Definition of an Interview (Code C PACE 1984) “An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which… is required to be carried out under caution.” The ‘caution’ referred to is the need to inform the interviewee that you suspect them of involvement in an offence for which they may be punished in law and as a result the interviewee is aware from the earliest opportunity that what they are saying may now incriminate them. If you know that someone is a suspect or is under arrest then it is relatively clear that you should be following the ICC rules of evidence and therefore interviewing them ‘under caution’. However if you are a human rights officer interviewing people in order to obtain witness accounts and it transpires through conversation that this person may be a suspect or offender, then understanding at what point that discussion becomes a formal interview will be crucial to maintaining the evidential integrity of the case against them. This is why, in the UK, a definition was considered important; it allows investigators to identify when they are moving from a ‘witness’ interview to a more ‘formal interview’ which requires the person to be ‘cautioned’. It is important that you understand this subtle difference.
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Key Considerations: Witnesses
As with the term ‘interview’, the term ‘witness’ is also generic. Our assumptions about the ordinary meaning of the word often mask the more complex legal definitions that are coupled to the term, such as vulnerable, intimidated, significant or hostile. Understanding what the individual prefixes mean and how they differ from each other is important for professional communication, clarity of thought and the planning and preparation of interviews. These definitions are not used universally and, therefore, the definitions we are about to discuss have their foundations in English law. However, the definitions alone are useful in helping you to appreciate the different categories of witnesses and the interview format each may require.
Vulnerable and Intimidated Witnesses
There is a distinction between these two types of witnesses, with intimidated witnesses being seen as a sub-category of the vulnerable witness.
Vulnerable Witness As a guide you should consider all witnesses as vulnerable if they are: • A child • Any witness where the quality of evidence could be in question because of: o A significant impairment of their intelligence or social functioning, i.e. they are learning disabled o A physical disability or they suffer from a physical disorder o A mental disorder Another term ‘developmental disadvantage’ refers to the common factor that unites: • Children • Children with learning disabilities • Adult witnesses who are learning disabled • Children and the learning disabled with communication disorders • Adults with dementia All of these types of people who become witnesses will require special care interviewing, which takes into account their specific disadvantages.
Intimidated Witnesses You should note that what one person finds intimidating another may not. Thus, each person has to be taken on his or her own merits. Regardless of why, intimidated witnesses may restrict what they say and thus reduce the quality of the evidence they can give. Such a strategy can be adopted for various reasons but, in the case of the ‘intimidated witness’, the likely reason is fear or distress. The starting point for evaluating the witness prior to interview includes the following:
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• The nature of the offence – sexual offences, murder, domestic violence, racially motivated crimes, repeated victimization, etc. • Characteristics of the witness – age, gender, sexuality, race, ethnicity, religious belief, refugees and asylum seekers, the elderly or frail • Characteristics of the offender – particularly where they have a history of violence, intimidation, harassment or bullying • The relationship between the witness and the alleged offender – the alleged offender is a close relative, carer, professional or authority over them • The witness’s circumstances – these include domestic, social or personal arrangements for example where they might live or work near the offender or the offender’s family or associates. Alternatively they may live ina community where the authorities are viewed negatively
Significant Witnesses
These are often referred to as ‘Key’ witnesses. They are classed as individuals who: • Witnessed an offence, part of an offence or events closely related to it but is unlikely to have any video recorded evidence used as evidence-in-chief because they are not vulnerable or intimidated • Have a particular relationship to the victim or who have a central position to the investigation • Are adults alleging abuse in their past but do not meet the criteria to be considered an intimidated witness
Reluctant Witnesses
These are witnesses who are unwilling or hesitant to become involved in the process. Such reluctance can stem from: • Adverse perceptions of the investigating agency or justice process • Concern about the response of others • Concern about the revelation of their identity
Hostile witnesses
The hostile witness is opposed to the prosecution process. However it is important to realise that a reluctant/intimidated witness can also become hostile during the investigation and court process. When evaluating the potential hostility of witnesses you should consider such things as: • Their political or criminal lifestyle • Personal links to the offender or other criminal associates • Their perspective and potential as a defence/prosecution witness
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These witnesses usually refuse to co-operate from the outset. However some may co- operate with the intention of providing misleading information favourable to the offender or others with a vested interest. If either reluctant or hostile witnesses agree to be interviewed, you should always consider recording the interview either by audio or video. Now that we have a basic understanding of what we mean by the term ‘interview’ and ‘witness’ we can move on to the interview process and consider what are the overarching principles when conducting interviews with witnesses, victims, and suspects.
Interview Principles
A good framework for you to adhere to is an adapted version of the UK Home Office circular 22/1992. Listed below are six relevant principles that apply to the interviewing of witnesses, victims and suspects: • To obtain accurate and reliable information from suspects, witnesses or victims in order to discover the truth about matters under investigation. • Investigative interviewing should be approached with an open mind. Information obtained from the person should always be tested against what the interviewing officer already knows or what can reasonably be established. • When questioning anyone an investigator must act fairly in the circumstances of each individual case. • The interviewer is not bound to accept the first answer given. Questioning is not unfair merely because it is persistent. • When conducting an interview, investigators are free to ask questions to establish the truth; Investigators are not constrained by rules applied to lawyers at court. • Vulnerable people, whether victims, witnesses or suspects, must be treated with particular consideration at all times. Understanding your interview principles, the key definitions in relation to what constitutes an interview, as well as the different types of witness you may encounter, will help you to plan, prepare and conduct a professional interview. You should view any interview as a conversation that has to be consciously managed in order to get the person to voluntarily disclose information. To achieve that, you will need two things: • Good communication skills, and • A structure in which to apply those skills. We are all born with the capacity to communicate and, as communication is inherent within us, we give little thought to our actual ability in this area preferring to rest on our perceived abilities. However, when you take on the role of an investigator you are moving in to the world of professional communication and your self-taught abilities may quickly become a barrier to, rather than a facilitator of communication. Therefore, throughout this course we will develop your knowledge and skills in this area by exploring some of the communication techniques recommended and used by professionals who work in the field of communication studies. The structure in which you apply those communication skills comes from the ‘PEACE’ model.
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The PEACE Model Providing structure: PEACE
The PEACE model provides the structure for an investigative interview. The term interview structure recognises that the interview is something we build or create. As the interviewer, you are primarily responsible for the planning and conduct of the interview. A well-planned and carefully conducted interview has a good chance of obtaining accurate and reliable information. The PEACE framework helps you do that. The PEACE mnemonic represents all five phases of the investigative interview:
P Planning and Preparation E Engage and Explain A Account, Clarification and Challenge C Closure and E Evaluation
This model is applicable to all categories of investigative interviewing despite differences in emphasis between witnesses, victims and suspect interviews. We will now review those phases and look practically at how they can be employed to provide you with a professional framework for interviewing. A key part of that model is planning and preparation. If you fail to plan and prepare adequately you will reduce the interview to an unstructured interrogation and this often results in the person confirming what you already know, believe or want to hear, whether it is true or not. Having understood this point we can now look at the PEACE model. To begin, we will specifically focus on the planning and preparation stage.
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PEACE1. Planning and preparation
Time must always be spent on this phase, otherwise your interview will fail. Planning and preparation should be carried out no matter what type of interview is being considered, whether it is with a witness, victim or suspect. It is one of the most important phases in effective interviewing. It ensures that you are ready to conduct an effective and ethical interview. In the planning and preparation phase of all interviews there are a number of points to be considered. Below are some of the areas to be considered: • How this interview might contribute to the wider investigation strategy. • How this interview contributes to your overall interview strategy. • What is known about the interviewee and what needs to be established. • Consideration of any Legal requirements. • Consideration of the elements of offences or ‘Points to Prove’. • Practical arrangements for undertaking the interview. • Pre-interview briefing of significant others such as lawyers. • Consideration of how you will manage an active defence. • Consideration of any prepared statements prior to interview and/or charge. • Considered statements post-interview or charge. Each point should be measured in relation to the others when preparing for an interview. The circumstances of each case will determine the importance of each of these points and how they impinge on one another. For example, when and where the interview takes place may be affected by the legal requirement to have an interpreter present.
1.1 How this interview might contribute to the investigation Planning and preparation for an interview gives you an opportunity to review the investigation, establish what evidence is available and decide what you want to achieve in your interviews. Every interview must be prepared with the needs of the investigation in mind. You have to consider how the information or evidence from this interview might help you to establish the truth of the matter under investigation. Therefore you need to consider questions such as: • Which persons need to be interviewed and in what order? • Why is a particular interviewee’s viewpoint so important? • What information do I now need to obtain? • Do I interview the interviewee now or wait until I have obtained more information about the circumstances of the incident/offence?
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These and other such questions will help ensure that you obtain relevant and useful information from the interview.
1.2 What is known about the interviewee and what needs to be established? To interview effectively you need to take account of the interviewee as an individual. You will need to ensure, where possible, that you have the necessary background knowledge to assess their potential status as a witness (e.g. intimidated, hostile, etc.) and how they may respond to your questioning. Some of the information that will help you to establish the interviewer/interviewee relationship is as follows: Age – knowing their age will help determine the most appropriate time for the interview and whether there is a need for an ‘appropriate adult’. The term ‘appropriate adult’ refers to the use of an adult who represents the interests of children and vulnerable adults whilst they are being interviewed. They are there to ensure fair play and should not be connected with the investigation in any way. Gender – in certain types of crime, for example sexual offences or sexual violence, it will be important to consider the gender of the interviewee. Consider whether or not you are the most appropriate person to conduct the interview both from the interviewee’s perspective and from a professional standpoint by, for example, understanding the differences in male and female communication methods. Domestic circumstances – knowledge of an interviewee’s domestic circumstances may indicate to the interviewee that you have done your research and may help build rapport. Consider speaking to members of the family, relatives, associates, colleagues and neighbours. Cultural background – can affect the way a person expects to be addressed and how you communicate with them. Even if the interviewee appears to understand or speak your language, you may still need an interpreter. Equally, does the interviewee have or use a strong regional dialect and will you (or your interpreter) be able to understand them? Educational background and intellectual ability – knowing something of a person’s educational background and achievement can provide an indication of their vulnerability. Interviewees who are disadvantaged because of an intellectual disability may not understand a caution, the significance of your questions and the implications of their answers. Physical and mental health – some interviewees may be vulnerable because of the condition of their physical and mental health. You should be alert to signs and symptoms of health problems during your planning and preparation - if you do not feel able to make an informed decision then consider getting advice from a suitably qualified person, such as a Doctor. Perception of or previous contact with authority – this knowledge will assist you to assess such factors as the safety of the interviewer(s) during the interview and any warning signs that have been noted. Information about an interviewee’s behaviour when interviewed or arrested previously may be a guide to an interviewee’s general attitude and behaviour towards you. However it should be noted this attitude and behaviour might have been in response to the situation at that time. Always consider liaising with interviewers who have previous knowledge of the interviewee.
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Report of incident – knowledge of the incident and details of what was reported may indicate whether an interviewee is likely to be cooperative or hostile. Consider checking any incident message and local or national intelligence. Also consider checking with the local police or any other specialist if you know it is safe to do so. Traumatic experience – Consider not only the background and personal characteristics of the interviewee, but also the experiences they have recently undergone, as a witness, victim or suspect. This may affect the timing of interviews because of their need for treatment, counselling or social support. Consider your own mental and physical state after witnessing or exposure to an incident. You need to consider whether you are fit to conduct an interview.
1.3 Legal requirements
Witnesses and Victims There is less direct legislation governing the conduct of interviews with witnesses and victims but that does not mean you should not review the applicable legislation prior to interview. The term ‘appropriate adult’ is generally associated with suspects but you should give consideration to having ‘appropriate adults’ present when interviewing children and vulnerable adults who are also witnesses and victims. This would be good practice and seen as ‘Achieving Best Evidence’.
Suspects As in most national legal systems there are a number of legal requirements in the ICC Articles and Rules of Procedure and Evidence (RPE) that affect the conduct of investigative interviews with suspects. In particular: • The need to record the interview. • How the interview is recorded. • Their right to silence. • Their right to legal advice. • Rules on the treatment of juvenile/vulnerable persons. • The use of interpreters etc. Failure to comply with these requirements could result in the exclusion of any information obtained in the course of the interview. Your ability to identify the point at which a witness interview requires these legal formalities to be followed is vitally important if you commence an interview with a person you believe to be a witness (or victim) and during the course of the interview it transpires they are a suspect. In any event, all suspect interviews, after the legal formalities have been dealt with and before you commence the interview proper, require you to identify any prior: • SignificantStatements or • Relevant comments. Detailed planning and preparation allows the skilled interviewer the flexibility to respond to the way the suspect structures their account of any such statements or comments. Whilst your plan will also provide the necessary structure for the intended interview you should
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always be prepared to re-evaluate your original plan against what is said in response to you putting any significant statement or relevant comments to them. As these comments may alter your whole understanding of the incident and what they are suspected of, this will in turn impact the elements or points you need to explore.
1.4 Elements or Offences? The ‘Points to Prove’ It is important in all interviews that you know the points necessary to prove the offence/ incident, or possible offences/incidents, in question. However, the need to cover these points should not dominate the interview by controlling the flow of information. Nor should they artificially constrain or distort the account of events given by an interviewee. Rather, it is important that the interviewee is encouraged to provide a full explanation of the event(s), before being asked specific questions that are relevant to the proof of any incident or offences that may have occurred. You must clearly identify all the possible incidents/offences you are investigating as part of your planning and preparation. You should determine the points to prove and any possible defence that might be offered. Some areas to consider are: • The intent (mens rea) - what was in their mind at the time of the act or leading up to it, during it or shortly thereafter? • The motivation - why did they commit the act? • Their actions (actus reus) - what did they physically do? • The method (modus operandi) - how did they commit the act?
1.5 Practical arrangements Practical arrangements are an important consideration in the planning and preparation for an interview. These practical issues apply to the planning of witness, victim and suspect interviews. The factors to be considered are: • Orientating oneself to the social and political situation. • Orientating oneself to the physical backdrop of the scene and wider location. • Location of interview. • Roles of interviewers (including interpreters). • Time. • Equipment. • Exhibits and property.
Social and Political Orientation Where necessary, arrange for photographs or a video recording of the area. If not practicable then make or obtain a sketch plan of the area. This evidence gathering will assist you and other investigators to orientate themselves. It will provide the interviewer
12 Interviewing Skills Module 7 with information that may be needed to conduct an effective challenge to an interviewees account. This process will also assist the Prosecutor, Defence, Judges or the public in any subsequent case when they try to visualise the scene and understand any evidence that may relate to it.
Location of interview Witnesses and victims: In these cases the majority of interviews are likely to be undertaken outside of a purpose built interview suite. Therefore you need to consider the surroundings and the possibility of noise and interruptions. For example is it appropriate to use the person’s house or place of work? Many people would prefer to be interviewed at home but you need to consider whether you are going to be able to interview them without interruption: the recalling of information from memory requires concentration and therefore somewhere quiet. Other considerations are exhibits; if they need to be to be shown, can you get them there? You need to assess carefully the possible implications of interviewing a witness or victim at home or at work, and even more so if either place was the scene of the incident in question. Suspects: Generally suspects will be interviewed in an interview room at a police station or other detention suite by way of audio/video recording. However, there will be occasions when ‘urgent interviews’ have to be conducted. Do not assume all interview rooms will have the same facilities – plan ahead.
Roles of interviewers There are real advantages when two investigators are able to conduct interviews together, and it is important that they work together (along with the interpreter) in planning and preparing for the interview. The roles and responsibilities of each investigator should be considered and then agreed before the interview. Thorough preparation will avoid the possibility of the second investigator (interpreter) interrupting or breaking planned silences or pauses between questions. Your plan should include when the second investigator is going to ask questions. This might be at the end of each topic or when the first investigator has finished asking all their questions in relation to all the topics. There may be occasions when the interview needs to be suspended in order to revise your plan. You will also need to brief the interpreter about the format of the interview and how they should respond to your questions and the answers given.
Time There are two elements here. The first is the actual time of day you conduct the interview. Our thought processes and physiology are generally, with some exceptions, at their optimum responsiveness between mid-morning and early evening. The ‘window of opportunity’ this period represents is considered the best time for the interview to take place. However, if you or the interviewee has travelled any distance, you need to take in to account the effect of time changes on the ‘body clock’ and how this may affect cognitive ability and the interview process. Once you have decided the time the interview will take place you should then ensure you allow yourself sufficient time to conduct your interviews within that ‘window of
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opportunity’. The timing of suspect interviews may be affected by the availability of legal representation and these issues can considerably encroach on the time plan. The interview of a witness may also be influenced by work or domestic responsibilities as these are generally undertaken during the same optimum period of responsiveness and you will need to plan accordingly for that.
Equipment Your preparation should include making sure you have all the necessary forms and equipment required e.g. statement forms, audio or video equipment. Check in advance that all the equipment is working correctly.
Exhibits and property An exhibit is a physical object or document that is relevant to the investigation. Common examples include weapons, clothing, photographs, documents etc. Some exhibits and property may be too large to show in an interview room or at the home address. Alternative arrangements may need to be made such as using photographs or video recordings of the items. All exhibits should be clearly marked and identified to assist in the interview process.
1.6 Pre-interview disclosure of evidence and management of active defence during a suspect interview If, having reviewed your evidence, you decide to interview a suspect, then you must consider what or even whether to disclose the various pieces of information you have in your possession. If you do, then your next decision is at what point you disclose the information. Will it be prior to or during the interview? In some cases you may feel it appropriate to disclose all your information to the defence prior to interview. Remember the important points to consider are: • What to disclose? • When to disclose? • How are you going to disclose - verbally or in written format? • What not to disclose? • Why are you not disclosing that information at that point? • How to handle non-disclosure if challenged?
1.7 Prepared statements prior to interview A prepared statement is a statement provided prior to or at the end of an interview (usually by a suspect). It is often viewed as a tactic to remain in control of the flow of information and to avoid answering difficult questions. If this occurs to you, use them to strengthen your case. Let the witness, lawyer or suspect read the statement. Then suspend the interview and review your preparation and planning in light of what was said in the statement. Then recommence the interview.
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Summary Planning and preparation is a vital element of an effective interview. This section has described certain factors that need to be considered in the Planning and Preparation phase. A written interview plan summarises the aim(s) of an interview and provides a framework on which to base your questioning. A written plan will give you the confidence and flexibility to conduct a professional and effective interview. Your written interview plan is an effective tool to assist you in the process. You should consider including: • The range of topics you plan to cover. • The points necessary to prove the possible action(s) under investigation. • Any points which may be a defence for committing the action(s) under investigation. • Introduction of exhibits. • Information which suggests he/she might have committed or been involved in the incident under investigation. • Plans to handle information/evidence that emerges from the interview not previously known. • Any other points arising from your notes. These points may be added to during the interview as the interviewee introduces new information that may require clarification or challenge. A written plan will assist you to: • Keep track of what has been covered and what remains to be dealt with. • Identify areas where the interviewee’s account conflicts with what is already known or has been suggested in other accounts. • Identify new information whilst keeping track of the purpose of the interview. • Identify any issues that have not been covered. You must remember that your interview plan may be considered ‘relevant material’ and must therefore be retained, as it may be necessary to disclose it to the defence or as part of a later appeal. Your plan should not include any gratuitous or personal comments nor should it contain any confidential material. In their planning and preparation, Interviewers will need to consider which approach is suitable for interviewing the interviewee but remain flexible throughout the whole process. What has been discussed above is an example of what you should consider, but it is not exhaustive. Each interview is unique, and you have to plan accordingly. A written plan summarises the aim(s) and objectives, and will be invaluable in assisting you in conducting an effective interview. Part of that plan is to consider how you will open the interview during the Engage and Explain phase. We can now turn our attention to that phase.
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2. Engage and explain
Engage and Explain is the first phase of an actual interview. During this phase you begin to establish a relationship between yourself and the interviewee. Engage is the first step, meant to encourage conversation. The Explain Phase is used to explain the purpose and aims of the interview, because the interviewee must understand what these are in order to facilitate effective communication. Engaging someone in conversation is not always an easy task. This is especially true if the person is a stranger or does not speak the same language. Factors such as their background, age and gender may also make it more difficult. Witnesses, victims and suspects are usually strangers and come from a wide range of backgrounds. The way you engage with them in conversation will therefore not be the same in every case, and this is why in our planning and preparation we should consider how we would engage them in conversation. Keep in mind that first impressions may influence how a conversation develops. Interviewers and Interviewees can be influenced by each other’s appearance, manner and speech regardless of what is said. For example as investigators we often associate the witness as being co-operative and the suspect as being uncooperative. When we believe or assume that a witness or suspect is reluctant to speak to us this can lead to anxiety. The result of this anxiety is that you and the interviewee may enter into conversation reluctantly, thereby confirming that your anxiety was indeed justified. To overcome this and establish a working relationship you should be non-judgemental and treat interviewees as individuals with unique sets of needs. Therefore, it is important that you give thought as to how you are going to manage the opening of the interview. You can do this by personalising the conversation, for example, by: • How you address the interviewee. • Establishing his/her immediate needs/concerns. • Showing an interest in them and their individual circumstances. • Showing empathy as appropriate. Your responses to an interviewee must be impartial and not the result of a negative or even positive stereotypical image based on expectation, culture, clothing, speech, behaviour etc. Your aim is to create an atmosphere in which the interviewee will want to talk to you. Sometimes your efforts may not be effective due to personality, gender or psychological differences. In such circumstances you must consider the need to suspend the interview and evaluate the cause behind the issues. Having done so you may be able to adjust your approach or, if necessary, find someone else to conduct the interview. The new interviewer would need to be fully briefed about the interview so far. Establishing a professional, working relationship is equally as important in a suspect interview. You may find it takes more effort because of the nature of the conversation and any statutory requirements imposed on you when interviewing suspects.
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However, there are things you can do to establish a professional working relationship before the interview begins: • Pay due regard to the physical and psychological environment. • Be realistic about how long your preparations will take and try and keep the person informed of what is happening (e.g. when they are going to be interviewed). • Ensure that the interviewee receives sufficient refreshments. • If they are detained or they are a suspect, ensure their entitlements, within the constraints of the investigation, are appropriately dealt with. • Consider whether there are any domestic or safety issues that the interviewee may be worried about. Demonstrating that you are aware of them and dealing with them helps build rapport. Some of these tasks may be the responsibility of other people within your organisation but, regardless of which agency you work for, ensuring that these points have been carried out will reduce their anxiety and begin to develop a good working relationship. As you engage the interviewee in conversation you can begin to explain the format and purpose of the interview. This can be summed up in three broad areas: • Reason(s) for the interview. • Routine(s) that will be adopted. • Purpose of the interview.
2.1 Reason(s) for the interview The interviewee may know why they are being interviewed, but it would be wrong to assume that to be the case without first checking. They may be unclear of the potential importance of their contribution to your investigation. For many, this will not be their first contact with investigators, therefore it is important to ensure they have a clear idea of what is expected of them, otherwise you may find they may become apathetic, impatient or hostile to your questioning. If they are unsure of the reasons for the interview, they may also limit their account to their own experiences and not realise the significance of what they saw to the wider investigation strategy. Do not assume that an interviewee is conversant with human rights investigations, criminal investigations or the international justice system. With suspects this means ensuring that they know and fully understand the reasons for their arrest and their rights whilst in detention and during the interview
2.2 Roles & Routine(s) that will be adopted Whilst you may be familiar with interviewing and the routines that are involved, many interviewees will not. It is useful therefore to explain these routines at an early stage to help relax the interviewee and reduce anxiety.
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The routines can include: • Explaining the PEACE Procedure and how and when they can have a break. • Introducing and explaining the roles of any other persons present. • Informing the interviewee as to how, why and by whom the notes or a statement will be taken. • Explaining the introduction of exhibits. • Explaining the formalities of writing a statement. • Explaining the use of audio/video recording of interviews
2.3 Purpose and Objective of the interview a) You should explain to witnesses, victims and suspects that the purpose of an investigative interview is for them to give their own account of the incident under investigation. b) Having given their account, it is then for the investigator to ensure the clarity and accuracy of their recall of the events. This is achieved by probing their account to ensure nothing is left out. To ensure you achieve these two points, you and the interviewee need to understand and follow some simple guidelines: a) Extended recall of an event from memory is demanding, especially after a period of time has elapsed or when events are embarrassing, complicated or confusing. Equally remembering things accurately and giving a truthful account of events can be further complicated by intervening events and/or when previous interviews have taken place about them. Tell the interviewee that you understand that considerable effort and concentration is required and they will be given time to remember and provide their account. To ensure they can provide the most accurate and detailed account they will be encouraged and permitted to give an account of all that they know and not to edit their account but tell you everything that comes to mind. b) They should give the full story as they understand it to have happened, in their own words. This is particularly important with young or vulnerable people. c) A detailed account will help establish the truth better than accounts that are vague or too general. d) Explain that if they don’t know something, they should say so and not be influenced by what they think you or others might want them to say. This is particularly important with children and vulnerable adults. e) With suspects there are a number of legal requirements that have to be complied with so that suspects are aware of their rights. However, the formality in which these rights are often delivered can undermine your ability to develop rapport with the suspect. As a result, you need to be aware of the fact that the procedural elements of suspect interviews should become part of establishing a professional, working relationship. The purpose is to inform the suspect of their rights and what is going to happen but in a way that is conversational as well as professional.
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The information that you must give in accordance with applicable law can usually be provided on an aide memoire card if you are new to this type of interviewing method. For example, ICC rules on opening an interview require that you must not ask any non- procedural questions and should: • Inform the suspect that the interview is being recorded. • Request those present to explain who they are and what their role is. • Give the place, date and time of interview. • Explain that they will be given a copy of the recording. • Remind them of their absolute right to silence (Known as the ‘Caution’). • Inform them of the right to free legal advice Your manner should remain conversational, even when giving the caution. Ensure the suspect understands the caution, if he or she doesn’t you should then explain the caution in your own words until they do. It would be sensible and seen as achieving best evidence if at the very beginning of the interview you put to the suspect any ‘Significant Statement’ that occurred prior to the interview or caution. A similar procedural approach is taken when interviewing witnesses and victims.
Summary This section has examined the initial phase of the interview, when you engage the interviewee in conversation and explain what is expected of them during the interview. Important aspects of this phase are: • First impressions can affect the conduct of the interview. Personalising the interview will help build a working relationship with the interviewee. • The need to explain the reason(s), routine(s) and outline of an interview. • The setting and understanding of ‘ground rules’ when explaining the purpose of an interview. Remember that, for many interviewees, this may be their first contact with any authority. Therefore, you must plan and prepare for how you are going to explain the interview process to them and what will happen afterwards. Once this phase has been completed, you are moving directly in to the account, clarification and challenge area. All though these areas are linked together, they are also three distinct areas in their own right. We will examine these areas in turn and will further explore aspects of professional communication that impact how you and the interviewee may conduct yourselves during these phases. It is here that communication and its facilitation is critical. Therefore, we will begin with the account phase and how to build professional relations in order to obtain the best account possible.
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Account, Clarification and Challenge Account Phase
3. Account Phase
Howo t build professional relations1? Having engaged the interviewee by opening the conversation and explaining what you expect of them, you must now obtain the fullest account that they can or will provide. There are a number of essential processes you must go through to obtain an accurate and reliable account. To do so you should obtain the interviewee’s own uninterrupted account, thereafter expanding on and clarifying their account and, if necessary, challenging2 the interviewee’s account. In this section you will consider what each of these processes involves and examine the problems of co-ordinating them. There are techniques for helping an interviewee to provide a full and accurate account of events. Some of these include: • Establishing rapport. • Listening skills. • Taking turns to speak. • Expecting the interviewee’s contribution. • Identifying conversational topics. • Questioning skills. • Monitoring and evaluating progress. These are the conversational basics required of all interviewers to obtain an accurate and reliable account, but the key element is establishing rapport with the interviewee. You will recall that earlier it was stated that ‘first impressions’ count. In interviewing, a bad impression and poor communication is often due to the attitude of the interviewer and a failure to establish rapport. To overcome this problem, interviewers are often advised that they should: ‘Treat others as you would wish to be treated’. This statement is made with the utmost sincerity, but it is not robust enough to withstand anything more than superficial scrutiny within a professional interviewing context. This is because we all bring to a conversation our own personal views on the world and how we see people and events within it. These views are known as our ‘Frame of Reference’, which is developed as a result of our upbringing and, more to the point, how we develop through our acquired:
1 When working through this section please note that the term ‘Interviewee’ includes witnesses, victims and suspects. 2 The challenge is not an aggressive style of communication as the name may suggest.
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K Knowledge U Understanding and S Skills - which in turn affect our A Attitude, and
B Behaviour
KUSAB is the mnemonic that sums up how your ‘frame of reference’ is developed. Often we can be unaware of our own frame of reference on the world or why we feel like we do about certain events or people etc., but essentially it can all be tracked back to the first three points. By not being self-aware, our frame of reference can remain fixed, but it is also possible to alter our views by developing our Knowledge, Understanding and Skills. This in turn will alter our ‘Attitude and Behaviour’. Being self-aware is a vital skill for professional interviewers in order to manage and facilitate conversation. Understanding that we can alter our views on the world and others within it makes it possible to manage our approach when communicating with people we may not care, in ordinary circumstances, to treat as you would wish to be treated. Intellectually we can all see the sense in treating others with respect and generally most of us will try to do this. But for those of us who have to deal with the more unpleasant elements of humanity – those who have undertaken or orchestrated the most dreadful human rights abuses or war crimes – it may be very difficult indeed to view these people as worthy of respect. In such cases it is easy to act on an emotional level and depersonalise these individuals, thus treating them as non-human and undeserving of your respect. This would be a mistake, as such an attitude will affect your behaviour and you will create the wrong impression and fail to develop the required rapport for effective communication. As professional investigators, we must act on an intellectual and not emotional level. No one is suggesting that you should disregard your emotional feelings towards the act committed or those (alleged) to have ordered or undertaken them. However, you must manage those feelings and act professionally at all times, demonstrating the right attitude and behaviour to ensure you create the right impression to facilitate communication. Remember you are actively managing the conversation by demonstrating respect for someone and obtaining his or her account of events, but it does not necessarily follow that, by demonstrating such respect, you are condoning that person’s behaviour. There are various methods of developing relationships with interviewees but the key elements are to look at whether you (and any other interviewer working with you) are the right person for this interview? Do you have the right skills and professional or technical education to fulfil the task you have been asked to do? In any given case there may be one or more factors that apply, for example, issues like age, gender, culture and ethnicity. In certain cultures and groups there are fundamental beliefs about conversation – especially concerning taboo matters – between members of the opposite sex.
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3.1 ACCOUNT Having developed a rapport with the interviewee you will then need to obtain their account of events. During the Engage and Explain phase you will have provided the interviewee ‘purpose and objectives’ of the interview and how to provide their account. The interviewer(s) during the planning and preparation stage will need to consider how they will deal with possible changes in the interviewee’s behaviour (emotion, cooperative, uncooperative). Interviewers will also need to be fully alert during the interview, in order to detect such changes. You will recall that one of the overarching principles of an investigative interview is to obtain the truth (accurate and reliable information) about the matter under investigation. In achieving that goal, the general principle is that you listen more than you talk. At first, during the engage and explain phase you may do the majority of the talking, but that will give way to you listening more, as you need to understand and analyse what is being said to you in the account phase. The following guidelines should assist you to obtain a complete account, whether you are dealing with a witness, victim or suspect.
First open question(s) and obtaining an account The first question(s) you ask are of vital importance and may well set the tone for the rest of the interview. You need to ask open question(s) that are probing enough to elicit a response, as initially your aim will be to obtain a broad account. ‘Tell me everything that happened from the time you left work that evening until the soldiers released you the following day?’ This type of open question is likely to obtain a broad account. In your planning and preparation you should consider what format your opening questions will take. Your objective should be to ‘funnel information’ from the interviewee. There are two formats to consider here, TED or 5WH:
TED questions T Tell me… E Explain to me… D Describe to me…
5WH system 5WH refers to the usage of these precursors to frame a question: W Who W What W When W Where W Why and H How
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However, you need to be careful when using the ‘explain’ or ‘why’ precursor as this could be seen as you asking the person to justify an action to you. You also need to be careful when repeating questions to witnesses as they may infer the first answer was incorrect and not what you wanted to hear – this is particularly true of those who have poor memory skills or are easily influenced. Sometimes you need to ask the same question and, if that is the case, you should try to rephrase the question. It may well be that your initial question brings little response in terms of an account which you can probe. You therefore may need to use more than one form of questioning in order to obtain an account sufficient enough to probe. If open questions are unproductive, it may be necessary to use closed or even leading questions. A closed question is one in which the interviewee essentially answers ‘yes’ or ‘no’. The danger here is that they do not elaborate on their answer and they can often feel under pressure to answer ‘yes’ or ‘no’ even in the absence of genuine recall. Leading questions should only be used as a last resort, particularly with witnesses. These questions imply the answer required. When this happens it is likely the evidence gained by such a question (and thereafter) will be contested on the basis that the question adversely contaminated the witnesses’ memory. Regardless of the format of questioning, you should avoid the following: • Interrupting. • Giving your opinion or making value judgements. • Speculating. • Jargon. • Multiple questions. • Topic hopping (moving from one topic to another). However, as stated earlier, the general rule of thumb in this section (and interviewing generally) is that you should be listening more than talking. To do that, you need to develop your listening skills and also your skills on how to manage the information you are receiving as a result of this listening strategy.
3.1.1 Listening Skills and Information Management Professional interviewers listen more than they talk. It is no coincidence that those who are found to be poor communicators tend to neglect developing their listening skills. However, in general we tend to listen selectively, filtering out words that we consider to be non-essential information. This behaviour can be observed during a conversation when you see people jumping to conclusions because they assume they know what the person is feeling or about to say. People jump to conclusions because they have an underlying agenda or self-focus so that they hear only what they want to hear. Professional interviewers use a skill called ‘active listening’. This skill is directed at identifying and acting on clues given out by the interviewee about their thoughts and feelings and using this knowledge to actively manage the conversation and enable further disclosure. These clues come through both auditory and visual means. Therefore, for the interviewer, observation is an adjunct skill to listening and you need to be alert to both forms of communication in order to detect the necessary clues.
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We need to keep in mind that communication is a two way process. Interviewees are not professional interviewers and therefore are more likely to misinterpret your behaviour. It is not sufficient for you to be aware of their behaviour but ignore your own non-verbal actions toward the interviewee. Therefore we will also examine how you should respond during these active listening phases.
3.1.2 Management of Information As the interviewee gives his/her first account, you should be listening carefully and noting areas that you wish to obtain further details about. This could include such details as clothing worn, the route travelled, or what happened at a particular place or time. Interviewees must be given sufficient time to provide their first account and allowing them time to talk without interruption means that this time frame can be significant. An individual speaking at a normal pace will average 100 to 120 words per minute (based on the English language). This pace provides the interviewer with a formidable task to contemporaneously record what they are saying and simultaneously identify areas for further exploration. In the absence of a structure for managing information it is likely that the interviewers information processing systems will be overloaded with the result that they: • Will miss important information. • Will fill in gaps with information from their own memory contaminating the interviewee’s memory. • Are pressured to interrupt either implicitly or directly. The likely result is the collection of poor quality information throughout the interview. Therefore the effective use of a note-taking system avoids such issues and provides the basis for the identification of topics for further discussion. One such system is to simply note the following:
P People L Locations A Actions T Time
Another form of note-taking, that will undoubtedly help the interviewee, if it is appropriate and they are given the opportunity, is to allow them to draw a plan or sketch of the area where the incident took place. Not only will it assist the interviewee with recall, but also it will assist you and members of the Court/Public at a later date.
Encourage repeated attempts to recall During the account phase you may need to encourage the interviewee to search through their memory extensively. It is extremely unlikely that everything available in their memory will be recalled initially on your first open question, and therefore the information supplied may be incomplete. Often an interviewee’s account will need to cover a broad time span or range of events. It may be difficult for an interviewee to manage such a wide range of information all at once. Subsequent questions and strategies may be used to ensure they have remembered all they can; one such strategy is ‘setting the scene’.
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3.1.3 Setting the scene In many cases the interviewee will have no difficulty in recalling information, for example, when interviewing an interviewee about their ownership and use of a weapon and any relevant documentation. Other situations will require you to set the scene to facilitate recall and obtain a full first account (note this technique may also be used in the clarification stage). Frequently an interviewee will be recalling an event that they experienced days, weeks, months, or even years previously. It is often difficult to recall details easily and accurately. The interviewee’s ability to recall will not only be influenced by time but by trauma as well. However, if the interviewee is given time to concentrate and is willing to make the effort, more details about the incident may be recalled. Once you have ‘set the scene’, you should then ask the interviewee your first open question in order to get an uninterrupted account of everything they know about the matter under investigation. It is during this phase that you need to deploy excellent listening and information management skills Using these questioning and note-taking methods will allow you to gather their account and other information you will need to put to the interviewee during the clarification and challenge aspects of the model. However before you move into the clarification and challenge phase of the PEACE model the interviewer needs to have a basic understanding of how witness memory and recall works in reality. Understanding the frailties of human memory and how people communicate information will better equip you to skilfully explore their account whilst maintaining the necessary rapport between you to facilitate continuing communication. Therefore we will now look at the area of witness memory and its impact on the clarification and challenge phase of the model.
3.2 Clarification and Witness Memory
3.2.1 Identifying topics/episodes To assist the interviewee, you will need to break down their account (interviewee areas) into manageable topics or episodes for further questioning or ‘probing’. You will already have identified possible topics (interviewer’s areas) during your planning and preparation. These areas can then be modified or added to as the interviewee provides their account. By breaking down the account in this way, you can: • Keep track of what has been covered; • Understand new information introduced by the interviewee and fit it into the overall investigation. You can then expand their account by systematically probing each topic and asking for more details when necessary. Use an open question to start probing the areas you have identified. You should keep asking questions about each topic until you haveall the information you need or the interviewee is unable to provide any more information (funnelling information from broad to specific detail). You should not underestimate the mental and often emotional effort required to recall events. It is appropriate that we pause here before moving forward and provide you with an
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understanding of how people remember and recall offence-related information. Memory is stored under two broad areas: Episodic and Identity detail. There are three stages for remembering something: acquisition, storage and retrieval. Failure of information to pass through any of these stages will mean that the incident will not be remembered and therefore cannot be recalled. The key point here is that people will register actions and activity (episodic) detail more readily than descriptive (identity) detail. Since we are biased toward episodic detail, we are likely to remember episodic more than identity detail. As memory is stored around the brain, we pull together information in a story format of ‘what occurred’ and relate it as a narrative. Therefore, when we ask interviewees to recall information, they: • Search their memory store. • Gather those elements of memory that appear relevant. • Bring these elements in to working memory to be literally worked on and presented as a story. This is why skilful questioning and probing of detail helps them recall other elements of their memory that may not have been retrieved immediately for inclusion in the story. There are a number of factors that affect the acquisition of the detail stored and recalled, and we will examine these in more detail during the course. Before further examining aspects of identity detail, it should be noted that one possible area to be identified in the planning and preparation stage relates to the evidential requirements for recording identification evidence during a witnesses account. The validity of such evidence depends on a number of different factors. In the UK, a Judge in the case of R v Turnbull [1976] gave guidance on what should be considered when probing a witnesses’ account that includes identification evidence. It may be helpful to remember the advice using the mnemonic
ADVOKATE: A Amount of time under observation. D Distance from the eyewitness to the person/ incident. V Visibility - including time of day, street lighting etc. O Obstructions - was there anything obstructing the view? K Known or seen before - did the witness know, or had they seen the suspect before? A Any reason to remember - was there something specific that made the person/ incident memorable? T Time lapse - how long since the witness last saw the suspect? E Errors or material discrepancies?
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Not all of these points will be applicable to every statement made or interview given. However, you must consider each point and record those points that do apply as part of the witnesses’ evidence. Clarification is required when you find inconsistencies in the interviewee’s account, or when you are unclear about what the interviewee is saying. Often these inconsistencies will be clarified when obtaining the expanded account. Inconsistent statements are not only due to the inherent imperfections of memory but for a number of other reasons linked to common characteristics found in human communication. Because these characteristics can also act as barriers to communication, we will review some of these issues before proceeding further.
3.2.2 Clarification andCommunication Issues Barriers to communication often occur because the interviewee or other persons present at the interview act in an inappropriate or disruptive manner. This behaviour is often expected of suspects and can be the result of a deliberate effort to subvert the interview. However, anyone can create a situation that interrupts the flow of the interview, and this is often due to the person concerned having poor interpersonal skills. Such people are often unaware that their behaviour is inappropriate. Routinely such behaviour involves disruptive talking, poor listening, resistance and evasion. We generally see these behaviours presenting themselves in the following ways: • Talking across you. • Interrupting. • Minimal response. • Not listening. • Assuming and finishing sentences. • Selective word picking and altering your intended message. There are a number of techniques for dealing with this behaviour and the key is to ensure you attend to it without taking too much of an authoritarian stance, otherwise you could be accused of oppression. You need to manage the situation to try and facilitate communication. However, what is more important in these situations is the need for you to be aware of your own behaviour and the likely impact your case theory (due to your intuition) may have on the interaction. Investigators often assume someone is guilty because they are unwilling to talk. Generally there are assumptions made about witnesses and suspects – the former are willing to co-operate and the latter are not. This ‘willing-unwilling’ intuition lends itself to the view that the unwilling are guilty or have something to hide. This is not always the case as apprehension, embarrassment, fear, indiscretion or psychological/physical factors can lead to a situation where the interviewee (witness or suspect) is or appears to be uncooperative or resistant. Investigators who are unaware of these factors or fail to understand them can increase the level of resistance or inappropriate behaviour being displayed. These key features are often at the centre of poor communication, as very few of us fully understand the rules of communication or how conversations are managed. Being aware of the frailties of human memory and non-verbal communication such as vocal behaviour, eye movement, gaze behaviour, facial movement, considered in light of interviewees’ spoken and written language, will help you to professionally review, probe
Interviewing Skills 27 Module 7
and clarify their account. Now that you have a general understanding that these issues exist, we can now return to the process of clarifying the interviewees’ account.
3.2.3 Clarification Process In practice, during the clarification process you should summarise what has been said about each aspect of their recall on each area, to check that your understanding is accurate, before moving on to the next topic. To maintain the conversational flow, you should link the summary to the next topic with an open question e.g. “The first man, wearing the blue helmet, came out of the front door and ran into the street whilst the tank fired on the hospital. What happened next?” Apart from giving you the opportunity to check on your understanding of what has been said, summarising also gives the interviewee the opportunity to add to or alter what they have said. It also helps maintain a professional working relationship by showing the interviewee you have listened and understood what they have said. This should encourage the interviewee to continue their account and to be increasingly open with you as the interview progresses. Summaries also have the benefit of affording a break for the interviewee as you contribute your share of the conversation. Summarising will also provide an opportunity for the interviewer to reinforce his/her memory. On occasions there will be a lot of information in one topic area. To avoid becoming overloaded with this you may need to summarise the interviewee’s responses before the end of the topic and then summarise the whole topic before moving on. Eventually you will have systematically examined the interviewee’s account and obtained all the information they can give. You must now assess the information obtained against the aim(s) of the interview and the interviewer’s areas identified in your written plan. You will then be able to decide whether to: • Challenge the interviewee’s account of events; or • Give a final summary before moving into the Closure phase ofthe interview. After the interviewee has provided their account, with Clarification where necessary, you may feel the interview can be drawn to a close. From what they have told you and what you already know there may be little or nothing to be challenged. In some cases, you may feel that although a challenge may be appropriate, it is inadvisable at this stage. For example, where you need to make further enquiries before interviewing someone about those points, or because you no longer believe they were involved in the incident. If you are satisfied that no challenge is required you should move to the next interview phase - Closure. You should note there are similarities in both approaches. The skilled interviewer can move between both approaches when and where they perceive the need to do so. However, invariably there are areas of an account that you may need to Challenge and understanding how this should be done is important.
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3.3 The Challenge
3.3.1 When a challenge is required It is important to bear in mind that both the clarification and challenge phases are designed principally to explore, with the interviewee, their account and the reasons for any apparent evasiveness or inconsistencies. The challenge phase would normally pertain to the suspect’s account although there will be occasions when it will involve the accounts of witnesses and victims. It is important to emphasise that, due to the points raised earlier regarding memory and other communication issues, you should explore inconsistencies or evasiveness you have noted in a non-confrontational, confident and co-operative manner. Remember that while the task is referred to as a challenge to their account, your approach should be one of clarification and co-operation, not criticism; the manner in which it is accomplished must be professional and positive. The account may need to be challenged when you have good reason to suspect that an interviewee is deliberately withholding relevant information or knowingly giving a false account, for example when they respond with silence or ‘no comment’. An interviewer who is well-prepared should not be swayed by this response. The interviewer should ask all the relevant questions as if the interviewee was responding and give them time to consider each question and answer it. Remember you need to ask the questions now so as not to leave any gaps in the investigation. These gaps might be accounted for at a later date or provided at court. However, a failure on your part to ask all the relevant questions in the first place may preclude inferences being drawn at a later date about the credibility of the answers provided after the interview. Equally, what an interviewee says may be inconsistent with evidence from other sources. This evidence could have come from other interviewees or consist of material or forensic evidence. Inconsistency with other evidence does not, of course, necessarily mean that the interviewee is lying or even mistaken. But such inconsistency will need exploration, either immediately or in the future. The next section will consider how to conduct clarification or challenge in an appropriate, professional manner.
3.3.2 The process of challenge There are three aspects to consider when planning to challenge an account: • The timing of your challenge. • Adopt an approach that seeks clarification, not confrontation. • Frame your questions in a way that asks for an explanation of those discrepancies.
3.3.3 The timing of your challenge The timing of some challenges can be planned. Within the PEACE model, best practice suggests that such challenges should take place towards the latter part of the account stage. You would normally not challenge an interviewee whilst they are actually giving their account! Doing that might discourage them from continuing to give their explanation.
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Challenges may occur under the following circumstances: • The planned use of undisclosed material, known as ‘measured disclosure’. Measured disclosure is where you do not tell them everything you know in advance of the interview. • In response to an interviewee’s version of events that is contrary to other evidence in your possession. • However, there is no hard and fast rule about when to challenge an interviewee’s account of events.
3.3.4 Seek to clarify, not confront It is important that you present your continued questioning as a form of problem solving to which the interviewee can helpfully contribute. You should explain to them that there are aspects of their account that you wish to explore further. That way the interviewee is not put on the defensive. They will find it easier to change their account or to add to it and to do so without embarrassment and without losing face.
3.3.5 Ask for an explanation of the discrepancies You must ensure that any discrepancies or gaps in evidence that require an explanation are clearly put to the interviewee. Frame your questions in a way that ask the interviewee for their view as to how the discrepancies between their account and the evidence you have gathered have occurred. In the case of evasiveness, reiterate the purpose of your enquiries and indicate the openness of your search for the truth. Then ask them for anything they may be able to add to what they have already said, dealing with each question you need to have answered in turn. If they are still not answering, explain that you will be continuing your enquiries until satisfied that you have an accurate and reliable understanding of what has happened. Initially, do not try to give an explanation of why the discrepancies have occurred (e.g. ‘You’re lying’). Remember to give plenty of time for the interviewee to respond to your query. Eventually you may need to state openly that you think the interviewee is lying. This comment in itself is not oppressive. Use the conversational techniques discussed earlier, (personalising by using their preferred name, asking open questions, listening actively, expecting the interviewee’s contribution and summarising their explanations) before going onto the next problem.
3.3.6 The role of the second interviewer and/or interpreter The lead interviewer should negotiate strategy with a second interviewer and/or the interpreter and brief them accordingly during the planning and preparation stage. Where there is a second investigator in an interview, you should allow them the opportunity to question areas they may have identified as being ambiguous or in need of clarification. You need to decide whether the second interviewer will come in at the end of each: • Topic, • Interviewee’s area or interviewer’s area, or • Before/after the first investigator’s challenge phase.
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• The correct use of a second interviewer or interpreter will be advantageous. • You will need to consider the skills and knowledge of the second interviewer in relation to yours. You will also need to consider the effect on the interviewee of two interviewers and the possibility of confusion as the interviewee attempts to deal with questions from more than one interviewer. Part of a second interviewer’s role will be to monitor any audio recording of an interview and to note the time counter every so often. This is best practice during any interview when you think there is something important on the audio that you may wish to quote verbatim. Having negotiated the challenge phase, you then need to manage the closure of the interview.
4. Closure
Avoid abrupt endings to interviews by ensuring adequate time is set aside to close the interview properly and to explain the next stages of the process. The interview should be brought to a close when you have properly concluded that no purpose will be served by continuing. It is important to plan the termination or Closure of an interview. This should be done in a courteous and professional manner. In this section we will consider how this is achieved. The answers to three key questions must be considered before Closure of the interview: • Have you covered all the questions you want to ask? • Has the interviewee provided all the information they are able and willing to provide? • Have you covered all the aims of your interviews? These questions are most easily answered by reviewing the topics in your interview plan and the information obtained during the interview. Reviewing the account tests whether ‘Closure’ is appropriate and consolidates the information provided in the interview. Explain to the interviewee that you are going to summarise what has been covered in the interview and that this will give them an opportunity to confirm, alter, clarify, deny or add anything they wish. Where suspects have remained silent, or refused to answer questions, you can summarise by systematically going over the main points. This tends to highlight the allegation and any defence which may be open to them but which they have declined to comment on. This ensures that the suspect has no doubt about what has been covered and where they have adopted their right to silence. Do not hesitate to raise additional issues that occur to you during your summary and be on the lookout for signs that the interviewee might have more to say. A suspect may indicate willingness, verbally or non-verbally, to answer questions about topics on which they had previously remained silent. A witness/victim may suggest that they have relevant information that has not yet been discussed.
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Once you have summarised their account you should ask the interviewee if they have any questions. An interviewee may well want to clarify whether they will be required to attend court and what this entails. They may have worries and concerns about their personal safety or some other query. A willingness to listen at this point could prove fruitful not only in obtaining new information, but also in establishing their positive attitude towards you and other investigators in the future. If they do ask questions, give honest answers and, if you do not know the answer, say so. Having summarised the interviewee’s account and answered any questions they might have, you are then in a position to close the interview. There are a number of points that need to be covered at this point depending on whether the interviewee is a witness, victim or suspect. There are formal aspects to the Closure of suspect interviews that must then be followed.
Ensure that the interviewee understands what is going to happen next Remember that most witnesses and victims will not have been through this experience before and will, therefore, in appropriate cases, appreciate information regarding: • Victim Support • Whether or not they will have to attend court • Claims for compensation • Security or Crime prevention issues You should explain to witnesses and victims that they may be likely to remember more information about the incident in the future. They should be asked to make a written note of any additional recall. It is very important that you leave them with a method of getting new information to you. In appropriate cases you should also explain that you might contact them in a few days to see if they have remembered anything else and to inform them of any developments. The potential to become an informant/confidential source equally applies to witnesses and victims. Closure is more than just finishing the interview and moving on to the next task. It involves: • Checking that it is appropriate to close the interview. • Summarising what has taken place to ensure mutual understanding. • Being prepared for new information and a return to the Account phase. • Complying with legislative requirements. • Leaving the interviewee feeling that they have been treated with respect. • Recognising that all interviewees have the potential to become an informant or confidential source. Having completed the interview phases of the PEACE model, there is still one more phase Evaluation.
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5. Evaluation
Evaluation concludes the PEACE procedure and is an integral part of an interview, just as much as any other phase. The interview is only effective if you know why and how it is to be carried out (Planning and Preparation) and you assess its significance (Evaluation). You need to evaluate from the interview: • The information obtained. • The whole investigation in light of the information obtained. • Your performance, either alone or jointly in the case of more than one interviewer. Evaluate the information provided during the interview and ask yourself the following question: “What effect has this new information had on the investigation as a whole?” Pose yourself a series of questions and evaluate the answers. Consider first your interview plan and your initial aims and objectives: • Were these revised during the interview? If so, why? • Have you achieved your (possibly revised) objectives? • Have you covered the points needed to prove the offence(s) in question? Similarly, you should consider: • What new information do you now have? • Is it consistent with evidence already obtained? • Are there any conflicts to be resolved? • What further enquiries do you need to make? The above questions will assist you to assess what impact the interview has had on the investigation and what action you need to take next. Consider how your investigation has changed as a result of this interview. For example, the person suspected of murder may now appear to have been acting in self-defence. The interview may have given you new lines of enquiry to follow, such as the involvement of another person not previously known about. Maybe it has merely confirmed and strengthened your previous view of the investigation. Be precise about what evidence you actually have to support your understanding of this incident and identify where you are merely putting forward an opinion. In the case of interviews with suspects, you should now ask the following questions: • Should the suspect now be eliminated from your enquiry? • What evidence do you have to support the allegation that the suspect committed the crime? • Is there sufficientvidence e to charge them with an offence? • Is there sufficient information to support them being named as a suspect publicly?
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You will have to answer these questions carefully. You should make a careful note of the reasons for your conclusions and what further action needs to be taken. To improve your interviewing skills, you need to learn from experience. This means that in addition to evaluating the evidence you must also evaluate your own performance: • What did you do well? • What could you have done better? • What areas can you develop? • How do I acquire these skills? Evaluate the whole PEACE process. Look back at your Planning and Preparation. Establish where your interviewing can be improved. Evaluate your performance and set goals to improve it where necessary. The more interviews you conduct, the more proficient you should become. If you are working with a colleague, the two of you can exchange feedback on each other’s interviewing skills. Many investigating bodies have a formal evaluation and supervision process with trained supervisors who examine interviews, give feedback and advise on how to develop interview skills. The important point in evaluating performance is the setting of appropriate aims and objectives, whether by yourself or with a supervisor. This is a way to develop your skills as a professional investigative interviewer. The purpose of Evaluation is to: • Examine whether the aims and objectives for the interview have been achieved. • Review the investigation in the light of information obtained during the interview. • Develop interviewing skills by evaluating how you performed and setting goals for the future. It is an integral part of the interview process. This draws the course notes to a conclusion. We will undertake various exercises to reinforce the key learning points as well as supplement this material with course presentations on specific subjects to add to this knowledge.
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Acknowledgements and References
Peace and Justice, Seeking Accountability After War Rachel Kerr and Erin Mobekk 2007 Polity Press Cambridge UK
An Introduction to the International Criminal Court 2nd Edition William A. Schabas 2004 Cambridge University Press UK
Skilled Interpersonal Communication: Research, Theory and Practice 4th Edition Owen Hargie and David Dickson 2005 Routledge, UK
Analysing Witness Testimony Anthony Heaton-Armstrong, Eric Shepherd and David Wolchover Eds. 1999 Blackstone Press UK
Detecting Lies and Deceit Aldert Vrij 2001 Wiley Press UK
Practical Guide to Investigative Interview Centrex Police Training UK 2004 Centrex, Home Office UK
Interviewing Skills 35 36 Interviewing Skills INTERVIEW SKILLS.
Investigation of War Time Sexual Violence.
OSCE – Bosnia and Herzegovina
WHY INTERVIEW?
Because we want to know: • What happened • When • Where • Why • By who, and • How?
THE “W” QUESTIONS
INTERVIEWER BEHAVIOUR
• Research of SV victims of conflict related sexual violence tells us that they are not comfortable with the investigators ability to help • Behaving professionally in an interview helps to overcome this concern • So does ensuring that you do not make promises that you can’t keep • Be prepared to offer referral to professional counselling
INTERVIEW
• Involve the interviewee in the interview process • Allow them as much control as possible • Listen and respond to their questions • Pay attention and be alert to expressions of guilt or fear • Use language that is non-judgemental or threatening SIX STEPS
• Introduce yourself in a professional and confident manner • Express regret for what has happened to them • Assure them that they are victims of crime and not at fault • Reassure them regarding their safety • Convince them of your competence and expertise • Explain that your questions will be personal but they are necessary
TIPS
• Behave in a professional but relaxed manner • Always be honest with the interviewee • Don’t jump to conclusions about veracity of statements • Take your time. Allow the story to unfold.
CULTURAL CHALLENGES
• Community structure/hierarchy. • Demeanor, attire. • Eye contact, physical contact such as shaking hands. • Presence of others during interview. • Personal space. • Timing of questions – formality of discussions. • Chronological story telling. • Terminology differences. • Language issues.
PROFESSIONAL CHALLENGES
• Gender . • Power dynamics. • Confidence building versus coercion. • Pressure to get the information often results in unreliable information. • Sources – judging reliability.
PERSONAL CHALLENGES
• Embarrassment and discomfort • Disbelief – leads to questions • Testing credibility RESPECT THE WISHES, NEEDS AND CAPACITIES OF THE VICTIM
• Give time to tell the story. • Never make assumptions about what must have been the most difficult for the survivor. • Never force a survivor to say things s/he is not comfortable with. • Offer choices and a sense of control (e.g. gender of investigator and interpreter). • Say explicitly to the survivor that s/he can stop the interview at any time. • If necessary, determine beforehand with the survivor what safety cues s/he will use in case s/he feels panic or if telling the story becomes too difficult.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
GUIDELINES FOR INTERACTIONS WITH SURVIVORS OF SEXUAL VIOLENCE
• Create a safe environment • Physical safety • Comfortable, quiet setting • Establish and explain follow up mechanism in case of threat • Confidentiality • Clearly explain limitations of confidentiality • Ask for informed consent
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
TREAT THE SURVIVOR WITH DIGNITY
• Show respect for the survivor and his/her culture. • Respect the way the survivor explains the events, avoid “interrogation”.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010
ASSURE A SUPPORTIVE ATTITUDE
• Prepare yourself to deal with emotional reactions during interview. • Provide emotional support, use supportive statements. • Repeat that it is normal for survivors to find it difficult to tell their story, that s/he is not to blame, that you have all the time. • If possible, ensure that support person is present during interview.
Evelyn Kamau, ICTR in presentation to Civil Society, Uganda 2010 INTERVIEW SKILLS
• Applies to: • All types of interview situations • Telephone • Face-to-face • Email • Types of questioning • PEACE framework for interviews • Free recall interview model • Conversation management model • Identification
TYPES OF QUESTIONING
• Open • Closed • Clarification • Challenge • Interview or interrogate?
INTERVIEW TOOLS
Techniques - Surrounding
INTERVIEW OBJECTIVE
• To obtain accurate and reliable information • In accordance with the applicable rules of evidence and procedure. • To achieve the above it is useful to consider interview structure INTERVIEW STRUCTURE
• Interview structure recognises that an interview is something that is built or created • As an interviewer you are responsible for the planning and conduct of the interview • The PEACE framework provides you with a professional interview structure
PEACE FRAMEWORK FOR INTERVIEWS
• P – Planning and preparation • E – Engage and explain • A – Account • C – Closure • E - Evaluation
FREE RECALL INTERVIEW MODEL
• PLANNING & PREPARATION • Relationship to the investigation • Caution • Code of Practice • Evidentiary requirements • Practical arrangements • Written plan ENGAGE & EXPLAIN
• Managing first contact • Explaining the interview procedure • Ground rules
INITIATING GOOD CONTACT
‘A person reveals no secrets without rapport’ - Schaffer and Navarro 2003 • First contact is often visual and may be followed by a warm welcome and handshake • Good interviewing is about listening rather than talking - pay attention and it encourages people to talk
SOFTENS - making a good first impression
• S - signs of sincerity • O - open posture • F - forward lean • T - touch • E - eye contact • N - nods • S - supportive sounds and silence
FREE RECALL INTERVIEW MODEL
ACCOUNT Setting the scene
Free recall – obtaining an uninterrupted account Consider repeating account and using sketch plans
Identification of Topics/Episodes FREE RECALL INTERVIEW MODEL
INTERVIEWEE AREAS
Link Topic/Episode Topic/Episode Recall Recall Probing Probing Summary Summary
INTERVIEWER AREAS
Link Topic/Episode Topic/Episode Recall Recall Probing Probing Summary Summary
QUESTIONING TECHNIQUES
Open and closed questions TED Questions 5WH Tell me… Who Explain to me… What Describe to me… When Where Why How Listening Skills
‘There is no such thing as a worthless conversation, provided you know what to listen for…’ James Nathan Miller
Why Tape Record?
Listening exercise
LISTENING EXERCISE
• Remembering detail is difficult. Why? • Disinterest, no objective, no advance reward • Demonstrates that most adults only listen with about a 25% efficiency level • Consider the impact that this could have on investigations and interviewing • What can you do to sharpen your listening skills?
ACTIVE LISTENING SKILLS:
1. Listening requires that you consciously decide to receive information 2. Clear your mind of personal distractions 3. Keep an open mind and avoid preconceived bias 4. Eliminate external distractions 5. Judge content not delivery 6. Delay evaluation 7. Empathise 8. Paraphrase 9. Question 10. Summarise
INFORMATION MANAGEMENT TECHNIQUES
PLAT = Episodic and Identity detail People Locations Actions Times CLARIFICATION QUESTIONS
ADVOKATE
A mount of time under observation D istance from eyewitness to event V isibility; time of day, lighting etc O bstructions; anything in the way K nown or seen before A ny reason to remember T ime lapse between first and second id E rrors or material discrepancies
Attention to detail…analysis of evidence
The Challenge Phase
STATEMENT ANALYSIS
There are two types of error that can occur:
1. Unintended errors (this is a question of accuracy of recall of information) or; 2. Intentional deception (known as credibility).
The credibility of the statement can be assessed in a number of ways:
ANOMALY IN EVIDENTIAL TEXT
Deficiencies in detail.
• There is an implicit expectation that an account would give sufficient detail, particularly core detail, to enable the reader or listener to: • Recreate mentally the sequence of events and descriptions reported by the witness particularly of his or her experiences or • To follow the witnesses line of reasoning or logic. • A deficiency in detail constitutes the anomaly that we are searching for. AREAS OF ANOMALY
• Deficient description • Failure to identify key individuals • Conversational deficits • Sequential and logical discontinuity • Empty accounts • Measured disclosure • Lack of emotion, sensation or response • Missing statements
RECREATE THE REPRESENTATION
Recreating asserted detail is a potent test which relates to reality. If the recreation shows something could not have happened in the way described this permits argument that it did not happen.
EXPLANATIONS FOR DETECTING ANOMALY
• An artefact of investigators behaviour. • Confabulation. • Deception.
FREE RECALL INTERVIEW MODEL
REVIEW STATEMENT
CLOSURE • Information • What next • Future contact • Court • Victim support • Compensation
RED FLAGS WHEN QUESTIONED
• People who tell lies and/or create false transactions don’t like detail. • Have to remember the false details which they have created. • The more detail, the more difficult to remember. • Will use evasive tactics to avoid answering questions. AN EYE FOR DETAIL
The aim should be to have a healthy dose of caution and suspicion in order to: • Keep on eye on the detail and spot the red flags • Have the confidence to persist in getting answers to questions • Recognise when you need to use interview techniques
CONVERSATION MANAGEMENT
CLARIFICATION • Held back information • Discrepancies in account • Use probing W questions • Summarise and link topics • Challenge any inconsistencies
INTERVIEW TIPS FOR EVASIVE PARTICIPANTS
• Interview should be based on good preparation and proper use of communication skills. • Build internal pressure through tactical use of information and clues in your possession. • The aim of the interview is to have the interviewee verify the clues you have and to make a statement about them as well as collect new information. • Use the clues you have to confront the interviewee. • Determine how much information you are prepared to give away to establish the confrontation scenario. • Avoid asking questions that will elicit a false response.
TIPS
• Tactics such as ‘surrounding’ are important. • Ask questions to build up to your ultimate point. • Behave in a professional but relaxed manner. • Don’t jump to conclusions about veracity of statements. • Take your time. Allow the story to unfold. • Make notes of everything that is said. • Behave professionally, friendly but objective. DIVERSIONARY TACTICS: PASSIVE
• Nice & friendly explanation that half makes sense • Ignore the question: too busy • Reply but answer a different question • Delay: ‘I can’t remember, I will get back to you’ • Obfuscate, especially when they know that the person does not understand the answer
DIVERSIONARY TACTICS: AGGRESSIVE
• Pressure: haven’t got time, its urgent, we will lose money if it doesn’t go now • Demeaning: ‘if you cannot understand, I can’t be bothered to explain’ • Confrontational: aggression to cow the questioner, bullying – ‘do you realise how important I am, just do as you are told’
RELUCTANT INTERVIEWEES
Most important phases: • Planning and preparation • Engage and explain • Getting to ‘Yes’ – short easy questions to establish communication
CONCLUSION
At the conclusion of the Account phase, the person should be offered the opportunity to clarify anything they said and to add anything they wish.
EVALUATION
• Information obtained • Evidence in the investigation • Your performance. EVALUATION OF INTERVIEWS
Griffiths Question Map
GQM
• Divides questions in to eight types divided between productive and non productive categories.
3 PRODUCTIVE QUESTIONS TYPES
• TED - defined as those allowing a • APPROPRIATE YES/NO closed full range of responses - tell me, questions - used at the end of a topic describe to me, explain to me where open and probing questions • PROBING 5WH - more intrusive and have been exhausted, use to requiring a more specific answer e.g. establish a particular point - ‘did you ‘which hand did they use?’ - used see him get out of the car?’ to obtain further detail after initial account
5 NON-PRODUCTIVE QUESTION TYPES
• Inappropriate yes/no questions - • Multiple questions or concept same as the other but used at the questions - ‘how did you get there, by wrong time in the interview and which route and who with?’ - concept become unproductive - allowing an - ‘what did they look like?’ evasive interviewee the option to give • Forced Choice - only offer limited a less detailed answer or close down choice answer ‘was he standing or the range of responses - ‘can you sitting?’ describe the vehicle?’ • Opinion or statement - ‘I think you • Leading questions which suggest the could not see that?’ answer
BOTH MODELS
• At the conclusion of the interview, the person should be offered the opportunity to clarify anything they said and to add anything they wish. SUSPECT INTERVIEWS Voluntariness
No statement by an accused is admissible in evidence against its maker unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him/her by either fear of prejudice or hope of advantage held out by a person in authority.
SUSPECT INTERVIEWS
• Criminal procedure laws will contain rules regarding admissibility of interviews of suspects.
INTERVIEW ROOM LAYOUT
I I
W
FINAL POINTS
• Try and press the interviewees “Start” button • Let them tell the story • Follow up interviews are likely to lead to more information FALANGA Exercise 1 Clue Documents
Falangan Units,Militias and Proxies:
X Falangan 1st. Cavalry 1 Brigade (Bde) :
I I I I Falangan Cavalry A B C D Squadrons (Sqn) :
I I Rakibu Squadrons : 10 11
Externally-backed Proxies:
Eclypso-backed Elements:
- NXA Central Command and - Areas under NXA control:
Numeranian-backed Elements: x - FPLA 2nd. Brigade and 2 - areas under Hulka control: Lachrima District: Political/Military Situation on 27 Dec ’04.
I I B X A I I 11 10 Lachrima I D Camp Zola I Legend C Hulka Region: … To MP Gondwanaville Vyumbe Region:
Lachryma City: 1:10,000 (Part of Old Town).
Square Church Park Market
Stadium Legend: City Hall Buildings:
Police Open -Public/Official : Market -Commercial : -Private : -Temporary : Other: -Parks, gardens : -Water feature/ tank : CLUE DOCUMENT #2
[Security Class: SECRET] Copy No.___ Page_01__of _09_pages. Headquarters, 1 Cavalry Brigade, Camp Zola, Lachryma East,
0900 27 Dec 2007. Dist: List “A”, Militia HQ, Lachryma Dist.
OPORD 13/05
Ref: A. Map 1:50,000 “Falanga Central” , Sheet 29. B. Map 1:10,000 “Street and District, Lachryma”.
1. Situation
a) General. In the New Year it is intended to register all tribes of the RF as part of the Great Leader’s aspirations for greater democracy. b) 1st. Cav Bde will assist with this process in the LACHRYMA DISTRICT. c) Attachments. Lachryma detachments of the 10th. and 11th. Militia (‘Rakibu’) Squadrons will be in direct support (DS) to the Bde for the duration of the operation. d) Opposing Factors: Some members of the VYUMBE and HULKA tribes may attempt to obstruct the operation. NXA and FPLA agitators and terrorists may be rallied in their districts to actively disrupt the registration process. e) Attachments: In order to facilitate ident and detention if necessary of those elements, it is intended to roster the LACHRYMA Detachments of 10 and 11 Militia Sqns who can assist in those processes. These Detachments are to Provide whatever other assistance as may be necessary also.
2. Mission
1st. Cav Bde with elements from the Lachryma District Militia in DS, will concentrate the population in the respective ethnic sectors of the LACHRYMA DISTRICT, at first light 02 January 2008, in order to put into effect the registration process of all of the citizens of that district.
3. Execution
(a). Concept of Operation. It is intended that two Sqns of 1 Cav Bde with Rakibu Detachments from the 10, and 11 Sqns of the Militia in DS will be assigned to the minority tribal districts. A Sqn with MP det will activate a
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detention centre at the Stadium and a Sqn will be in res prepared for riot duties and as Bde reserve. Sqn assignments are as follows:
- A Sqn and 10th.Rakibu Sqn to the Western VYUMBE District,
- B Sqn and 11th.Rakibu Sqn to the Northern HULKA District,
- C Sqn with HQ Platoon Military Police under command to activate and secure a detention and holding centre at the Stadium,
- D Sqn will be riot ctl Sqn and in reserve ready to sp the other Sqns on Order. ______
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(C). Militia District, LACHRYMA: Roster those NCO’s of the District from the 10 and 11 Militia Sqns to assist in the ident and segregation as necessary of known VYUMBE and HULKA leader- agitators who may be intent on interfering with the registration process.
( i ). 10 Militia Sqn
Task: Support A Sqn, 1 Cav Bde in the Western District by making a list of the VYUMBE leadership and in the segregation as necessary of those likely to be disruptive. Location: Map overlay: Reorg: Map overlay.
( ii ). 11 Militia Sqn
Task: Support B Sqn, 1 Cav Bde in the Nortern District by making a list of the HULKA leadership and in the segregation as necessary of those likely to be disruptive. Location: Map overlay: Reorg: Map overlay.
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Annex ‘C’ to OPORD, 13/05: Deployment Town Centre 02 Jan ’08.
Hulka District Vyumbe _ B A I A I 10 B I C C I … B MP I 11 District Open C Market I B A B
© Institute for International Criminal Investigations 2014
CLUE DOCUMENT #4
TRANSCRIPT OF AN INTERCEPT OF RADIO FALANGA BROADCAST OF 1 JANUARY 2008
Male Voice: This is Radio Falanga (sound of musical tones). In stunning news, Radio Falanga has learned that the Hulka and Vyumbe tribal leaders are leading their people into treasonous activities against the state of Falanga.
Hulka tribal chief Mattieu Nshondo has been seen on numerous occasions in the company of men in suits from the enemy state Numerania. Reputable experts believe that Nshondo has been passing state secrets to Numeranian spies for some time. In addition, he has mobilized the entire Hulka tribe to serve as the eyes and ears of Numerania within the sovereign borders of Falanga. For this disloyalty the Hulka are amply compensated, according to our sources.
The traitor Nshondo is matched in his treachery by Vyumbe tribal leader Charles-Victor Ubi, who has now been revealed as a paid agent of the enemy state of Eclypso. The enemy has opened a bank account in Ubi’s name at a major French bank, where they have deposited over one million euros. Like the Hulka with their Numeranians, the Vyumbe have been supplied with weapons and supplies by their sponsors the Eclypsans, and military training for their so-called “self-defense corps.” It is all part of a grand scheme to overthrow the legitimate government of the republic, assassinate our beloved president Zola, and slaughter the Kina Sisi people.
The government has called upon all true citizens of Falanga to exterminate all treacherous elements within our borders, liquidate both plots and plotters, and eliminate disloyalty wherever the disease breeds.
More on this story after the break.
© Institute for International Criminal Investigations 2014
CLUE DOCUMENT #5
Humanity Now! For a Free Human Race
2 January 2008
Welcome to the Humanity Now! Website Click Here for Membership
FALANGAN RIOTS APPEAR ORCHESTRATED By Humanity Now! Falangan Country Experts
Lachryma, Republic of Falanga—Riots broke out today (2 January 2008) in the Falangan city of Lachryma as businesses opened after the New Year.
Humanity Now! observers, who have been monitoring the fragile peace process among the warring tribal factions in Falanga, report that mobs burned and looted businesses and attacked civilians with machetes. The machetes appeared new, observers said.
Observers also noted that most, if not all, of the rioters were of the Kina Sisi, a tribe at war with the other two ethnic groups in Falanga, the Hulka and the Vyumbe. Most, if not all, the victims of the riot were either Hulka or Vyumbe. Falanga has been in a downward spiral of tribal-based violence and instability for some time.
Victims were beaten or slashed by roving, chanting mobs. Casualties could not be determined at time of writing.
For all the seemingly random and spontaneous nature of the disturbance, the widespread use of the clubs and machetes argued that the riot was more organized than not. Also, many reporters witnessed Bos Gmbimba, a local Kina leader and operative for the ruling Rally for Falanga, directing rioters to certain shops and persons and away from others. But other observers thought Gmbimba was merely encouraging the mob, not managing it.
The day before the riot, Radio Falanga broadcast a program in which it accused the Hulka and Vyumbe tribes, and their respective leaders Mattieu Nshondo and Charles-Victor Ubi, of disloyalty to the state, and calling for the ‘extermination’ of all traitors.
Humanity Now! has protested the riots to the Falangan government, the United Nations, and the governments of the United States and Great Britain.
© Institute for International Criminal Investigations 2014
CLUE DOCUMENT #6
The Lachryma ARGUS-Gossip Lachryma, Falanga 3 January 2008
Gen. M. Nkole was yesterday named CIVIL WAR BREAKS Commander of the Central District, OUT IN LACHRYMA which includes Lachryma. A statement by President Zola said that Nkole was Report: Thousands Displaced; ordered to “suppress rebellion and Hundreds Killed; Riot Turns lawlessness by any means necessary.” into General Armed Conflict; The general, 54, was previously posted Militias Mustered; Army to the capital district.
Responds. Gen. Nkole issued a statement accepting the command, saying that he will always By Miriam Damali Lachryma 3 January—The riot that carry out the wishes of the government started yesterday quickly devolved into and the will of the people. When asked an armed melee involving all the tribal about the government’s plan for militias, NXA, FPLA and Rakibu. pacifying the zone, a source close to the Elements of the Falangan Army moved decision said, “The words disaffection, into the town in response to the fighting. Vyumbe and Hulka are synonymous. We’re going to eradicate disaffection There were reports of firefights from the Falangan dictionary.” throughout the city, with the possible exception of a residential neighborhood where many Kina Sisi doctors and Lachryma Old Town FPLA and NXA lawyers live. Events are unfolding so counter-attacks, Hulka District 2-3 January. rapidly that it will take some time to analyse them. The sound of shelling was Square Church heard in the town, but its origins are not Park Market known as we go to press. Extreme Vyumbe Stadium District danger is everywhere. In fact, this report City Hall is being filed in a makeshift shelter, Police Open where a kindly soldier has given this Market Kina Attacks on Property reporter a helmet to wear. Kina-Sisi Residential Area on 1 January: C Lachryma Argus Studio, 2005. General Nkole named commander of Central District
President Charges Him with Task of “Suppressing Rebellion and Lawlessness by Any Means.”
© Institute for International Criminal Investigations 2014
Humanity Now! For a Free Human Race
STATEMENT OF MIRIAM DAMALI TO HUMANITY NOW!
My name is Miriam Damali. I am a journalist for the Interglobal News Service. I have been a journalist for all my adult life, during which time I have covered wars and conflicts in Zix, Dystopia, Falanga, Sudan and Equalya, among other places.
In June I was in the town of Equioli, Equalya. I was covering the riots there for my news agency. I and several other journalists were near the Souk al-Zak when we were stopped by a large group of armed men wearing black track suits. The men were armed with AK- 47 assault rifles and other small arms. They asked us who we were and what we were doing there. We identified ourselves as journalists and explained we were covering the riots. The person who appeared to be the leader of our captives, a tall, bearded man about thirty years of age, said we were spies for Handsi and started to separate the men from the women. There was only one other female reporter there—I don’t know what happened to her, I never saw her again. Her name was Ariel and she worked for Le Monde.
I tried to argue and above all, not to go with them. I told them I was just a writer. I told them I’d tell their part of the story. I told them they’d get in trouble if they arrested us. They just laughed at me. I was frantic. I tried to hang on to my bodyguard; I was afraid that if we were separated I’d end up dead. He tried to get between me and them. He was gesturing and yelling that I was harmless, just a girl, just a journalist. But the men clubbed him to the ground with their rifles. Then they grabbed me and marched me down the street. We went about three blocks before we turned into a large building. I suppose it was a headquarters of some sort; there was a large room on the ground floor, where many young men were milling about or working, all dressed in black track suits. There were about 20 desks with about computers on them, and young men working away on them. Some of the screens displayed maps of Equalya, while others had Twitter and Facebook pages open.
They made me undress right there, right in the middle of the room. They took my clothes away. All this time they were laughing and making obscene comments about my body.
Then they started touching me, a number of them, I don’t know how many, pawing me and putting their hands and fingers on me and in me. All the time they were calling me a black whore and a black spy. One of them said, “This is how we treat Handsi’s whore spies.”
After many minutes of this—it seemed forever—they dragged me up a flight of stairs and down a hallway to a bedroom. The leader, or the one who acted like the leader, had a key to the room. They shoved me inside and pushed me onto a bed, naked. They then raped me, forcefully, repeatedly and in large numbers. I can’t say how many men raped me, but they were standing in line at the door.
© Institute for International Criminal Investigations 2014 CD 6 Humanity Now! For a Free Human Race
I screamed at them to stop, but the more I screamed the angrier they got and the angrier they got the more violent they became. They slapped me and punched me and pulled my head around by the hair and all the time calling me names.
I wanted to die. I wanted it to stop and to be back home. I knew I was going to die. I couldn’t believe it was this easy to kill me. I thought I was better than that and I blamed myself for being weak. I wanted to fight but I couldn’t fight.
The rapes lasted for maybe an hour. Finally they all left, and I was alone on this bed with no sheets. After a while I went to the door and looked out into the hallway. There was no one there, but I could hear loud talking and laughing coming from downstairs. I went along the hall until I came to a room with the door ajar. I peeked in and saw that it was a storage closet of some kind. There was bedding and cleaning supplies and a number of black track suits stacked on a shelf. I took one and put it on. Then I crept back down the hall and went back to my room.
They thought so little of me they didn’t even bother to put me in a room with bars on the window. Try as I might, I couldn’t get it open—I suppose it was sealed—so I picked up a wooden chair and smashed the window. I thought that might bring them running, but it didn’t. I looked out and saw that if I could get out the window I could get on the roof and then drop down onto the roof of a low building next door. So I squeezed myself through the window and got away.
I think I wandered for a while. They tell me I was gone for five days, but honestly, I couldn’t say. I know I found some Arab women who took me in and protected me. I tried to tell them what had happened to me, even though my Arabic is very poor, but they seemed to understand anyway. After a few days I realized I had to find out what had happened to the others, so I went back to the Souk. I didn’t want to. I never want to see that place again. When I got there I didn’t know what to do or who to ask, and people were looking at me suspiciously, perhaps because I was still wearing the black track suit. But then, while I was standing there wondering what to do, my colleague Jean-Yves came up to me. Just like that, he was there. I was so glad to see him. He’d been searching for me street by street, he said and finally got the idea to return to the scene of the crime. We were afraid the militants might get the same idea, so we got out of there as fast as we could.
I am aware that Zacky Fullah’s militia, FRIENDS, wear black track suits as a uniform. I have no doubt that is was they who raped me.
© Institute for International Criminal Investigations 2014 CD 6 CLUE DOCUMENT #7
The New York Tempus “Reality is News to Us”
FALANGAN RIOTS LEAD TO ARMED party leader, Bos Gmbimba, allegedly UPRISING colluded with the local Bishop Ignotus to summon the rioters to the church. St. By Reginald van Gelt, International Josephine’s was surrounded, and rioters Correspondent were seen entering it with weapons— including men in uniform. Bishop Ignotus is Lachryma, Falanga, 2 January 2008. a member of the Kina Sisi tribe, a cousin of the Falangan president Jacques-Hugues Crying “the Vyumbe and Hulka are slaves to Zola, and is reportedly on the government’s treachery!” members of a Falangan tribe payroll, according to US intelligence went on the rampage against their ethnic sources. Last year he was forced by church rivals in this central city of the war-torn superiors to withdraw a controversial African country. Wielding machetes, episcopal letter condemning intermarriage members of the Kina Sisi tribe allied to the between Kina and Hulka and Vyumbe as ruling Rally for Falanga party, hacked and “contrary to God’s will.” beat shopkeepers and shoppers alike, then moved into the neighbourhoods, sparking At least some of the refugees in St. widespread riots and armed retaliation by Josephine Bakhita’s, mostly women and militias. girls, were taken away in trucks by persons unknown. It is not known what happened to Following an incendiary broadcast by Radio them, or to the rest of those who sought Falanga the night before which accused the sanctuary in the church. political and ethnic opposition of subverting the government, rioting broke out in the But in short order, armed militias allied with market as it opened after the New Year the opposition parties counterattacked. break. But observers reported that the Units of the Falangan Popular Liberation machetes used by the rioters appeared to be Army (FPLA) a mostly-Hulka group, and new, and a local party official of the ruling the New Xenophobe Army (NXA, Rally for Falanga was seen exhorting the overwhelmingly Vyumbe) set upon the mob and giving it directions. Dead bodies rioters and shot them outright, killing many. were strewn throughout the town, some This reporter witnessed the capture and missing limbs or heads. summary public execution of two Kina rioters who had been caught by the NXA As the rioters burned ethnic Hulka and while running away with the bloody Vyumbe tribal members out of their homes machetes still clutched in their hands. and shops, many victims sought refuge in Reports from other quarters of Lachryma the local Church of St. Josephine Bakhita. spoke of similar incidents. There are reports Reports were that at least a hundred Hulka of mass graves within and outside of the and Vyumbe were cowering there. But the city.
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To make things worse, yet another militia, the government-sponsored Rakibu, or ‘riders,’ suddenly appeared this morning on the outskirts of Lachryma battling the other two militias and evidently attempting to fight their way into the center of town to relieve pressure on the Kina rioters. Knowledgeable sources who prefer to remain anonymous say the Rakibu are supplied and trained by the Falangan government, while the FPLA and NXA are sponsored secretly by so-called “Frontier States” Numerania and Eclypso respectively. Secret agents and military attaches from the various governments are reported to be swarming through Lachryma assisting their protégés in the killing.
Falanga has experienced civil strife intermittently in the past ten years, all of it ethnically based and, many say, the manifestation of a struggle to control lucrative natural resources. The country is rich in diamonds, coltan (which is used in making computers) and gold. Recent oil exploration by Western and Russian companies indicate the presence of large untapped reserves of sweet crude oil in the center of the country. Lachryma, the site of the present conflict, lies in the middle of the new oil-rich region. Humanity Now! a Washington-based human rights monitor, has accused the giant Charon-Anubis Corp. of reaching secret agreements with President Zola to exploit the oil, a charge the company vehemently denies. But there are signs that Charon-Anubis is preparing to drill at sites not far from the fighting.
The United Nations has issued a statement condemning all parties to the conflict equally, and promising a “thorough review of the facts as soon as the Security Council can agree on modalities.” UN watchers think that can take up to a year.
CLUE DOCUMENT #8
Memorandum
Date: 22 April 2008 From: Analyst To: Chief of Investigations Re: Coded Message
The table above was seized in a search of Lachryma, Falanga by Team 3 on 1 April 2008. Also seized were several messages written in the code to which the table is the key. Translation of Message dated 3 January 2008, from a Cdr. Ronjo of the New Xenophobe Army to OC First Region, NXA, reads as follows:
“ULTRA SECRET. This date 1100h units of NXA fighting the subhumans captured two (2) Rakibu bandits and a Capt. OUIDA, Jean-Baptiste, Falangan Army. Also captured, Capt. OUIDA’s driver, Falangan Army private SENTWAKI, Erasto. Lt. SEMBILA cited for initiative. Also captured, Kushotan Colonel TOG, Ramon, Kushoto Intelligence attached to Falangan Army. The two Rakibu and Falangan officer and driver interrogated using ‘deep technique’ by Lt. Sembila and NXA volunteers OKESE, Luku, ZANXZA, Thibault, plus others not identified. Very little useful intelligence obtained. Sentwaki provided low-level intel re: troop strengths, dispositions. Full report by separate bag. Bandits and officer liquidated by volunteers on orders, and buried. Col. TOG interviewed by this officer. Said TOG is envoy from Kushoto, brings offer to share in oil royalties in return for NXA ceding other mineral rights in NXA territory. TOG transported to HQ for further discussion. Rakibu bandits this date engaged patriotic NXA forces. Numbers of NXA and sympathizers were driven into City Hall by bandit subhumans and hall set on fire. FPLA cadres also incinerated. Request resupply ammunition and narcotics for volunteers. (s) RONJO, District Cdr. NXA.”
© Institute for International Criminal Investigations 2014
CLUE DOCUMENT #9
Humanity Now! For a Free Human Race
Field Report 3 January 2008
Events in Lachryma, Falanga
On 2 January 2008 rioting broke out in this central city of Falanga. The rioters were mainly Kina Sisi tribespersons. Their targets were Hulka and Vyumbe civilians. Machetes were the weapons most often used. Rally for Falanga leader Bos GMBIMBA seen directing rioters. Bishop Ignotus suspected of collusion with Gmbimba.
Elements of the New Xenophobe Army and Falangan People’s Liberation Army counterattacked yesterday. Incidents of torture, mutilation, murder observed. Child soldiers are recruited by all factions. This date 3 January, Falangan Army and elements of Rakibu militia counterattack. Falangan regulars commanded Rakibu. They used mortars and artillery to shell NXA and FPLA strongholds, where enemy cadres had fallen back. FA and Rakibu also shelled New Town, Hulka neighborhood where no enemy observed by monitors, Lumumba Hospital, and St. Tibb’s School.
FA/Rakibu shelling and NXA and FPLA countershelling struck outdoor food distribution centre run by ICRC. This site was not in area of general fighting. Forty (40) Hulka, Kina and Vyumbe civilians dead, no count of wounded and missing.
ICRC and HN! volunteers report repeated and systematic harassment and intimidation by FA, Rakibu, NXA and FPLA cadres. Food distribution was held up at gunpoint and two food trucks were stolen by child soldiers attached to NXA units. This reporter threatened with rape by NXA child soldiers and someone who may have been NXA officer.
Refugees leaving city, including many women and girls. Reports of widespread rape and of mass graves are now being investigated.
Madeleine Clare, HN! country monitor.
© Institute for International Criminal Investigations 2014
CLUE DOCUMENT #10
STATEMENT OF SHANA OKESE TO HUMAN RIGHTS OFFICER FROM UN- OHCHR
My name is Shana Okese. I live in Lachryma, in Falanga, on Rue Antarctica. I think I am about forty or forty-one; my birth and baptismal certificates were burnt in one of the civil wars a long time ago, but my mother told me, before she was killed in a riot, when she thought I was born.
When the recent trouble started I was minding my own business as usual, at home. It was market day and I was getting ready to go shopping. My neighbor ran in. She was very agitated. She told me the Kina were slaughtering our people in the marketplace. I should explain that I and everyone belonging to me are Vyumbe, and that we live in a Vyumbe neighborhood. The Kina, they're a different tribe. We don't like them and they don't like us.
I was amazed and frightened by my neighbour's words. But before I could decide what to do, my son Luku ran in, all out of breath. He cried that a mob of Kina were coming our way and they were screaming for the life's blood of all Vyumbe. My boy said “Maman, we have to escape.”
We decided to run to St. Josephine Bakhita church. We heard from some of the neighbours, who were also running, that Bishop Ignotus said he would protect us there. We got to the church all right, along with a lot of other Vyumbe. We all hid in the pews, but we could hear from the screams and the shouting that the mob was getting closer and closer.
Bishop Ignotus was there, and told us to remain calm, not to run, and that if the Kina came he would speak to them, as he himself was a loyal Kina and could protect us. I’ll never forget the old hypocrite, flashing this gold cross with a big red jewel in it like he was a prince or something.
After a while the Kina broke into the church, yelling and waving machetes. I saw some people I knew, like that man Bos Gmbimba, the party leader for the Kina. And Toussaint Magrat, he's the local butcher, also RF. Also there was a man in a uniform, like an army uniform. I'd never seen this man before. He came in after the Kina took over the church and he talked to Bos Gmbimba and the Bishop. Then Gmbimba and the soldier separated the Vyumbe men from the women. They were very arrogant. The men they put in the front of the church, guarded by the Kina. I noticed some of the Kina had rifles and were dressed in bits of soldier clothes.
The women were placed in the back of the church. Me and my neighbour were among them. The Bishop and Bos Gmbimba went among the women, saying that no one would be hurt. But they picked the prettiest ones and made them stand in a group to one side. I was picked. I wish to God I hadn't been.
© Institute for International Criminal Investigations 2014
The Bishop and Gmbimba told us that we were lucky and that we would be spared, as he, the Bishop had promised we would be. Then the Kina took us out of the church and put us in trucks that were waiting there. I tried to call out to Luku, but I couldn't see him anymore, and the Kina pushed us into the trucks and told us to shut up, that we Vyumbe insects would only see our families and friends again in the next world.
We were driven to a neighbourhood I recognized as a Kina district. All the women were put in this big yellow house, two stories tall. I and two other women named Florence and Francoise shared a room. There were maybe 25 women taken away, but I don't know if we were all taken to the same house. We couldn't go outside. We couldn't leave the room. They brought us food, but it wasn't much and it wasn't any good. Gmbimba told us men would come to the room, and they did. I don't remember much about that. All I know is that I was insulted and offended. They embraced me and called me names. There were all sorts of Kina men. Some of them were in uniform with different colours.
After a few days, or maybe a day or two, we could hear fighting outside the house. There was a big explosion and the house shook horribly. I heard the screams and yells of people in pain. But the explosion had made the door to our room, which was usually locked, fly off the hinges. I realized that the house had been hit by a bomb or something. I saw the door was open and I didn’t have to think twice—I ran out of the room. Florence and Francoise followed me. A man with a gun yelled at us, but then another bomb exploded and we were all knocked down. When I got to my feet, I saw the man was dead. I ran down the stairs and out of the house. There was smoke and flame everywhere. We ran away from the fighting until we found a square with a big crowd of people, Vyumbe and Kina and Hulka, waiting for food from the foreigners. We thought we’d get some food, too, so we joined them. Then bombs or something hit the square and there was deep hell again, everyone dead.
We ran away, past the City Hall. More hell—the Rakibu were there, and they were fighting people inside the hall. There were bullets and explosions everywhere. I hid behind a car, but I could hear people inside the hall screaming. I don’t know what the Rakibu did, but the hall started burning and the Rakibu were cheering and saying “Well done!” and “That’ll get the rats to leave.” I think everyone but a few in the City Hall died. Some people came out coughing with their hands up. Some were soldiers and some were just people, but it didn’t matter. The Rakibu shot them all, anyway. I saw some people there with the Rakibu who seemed like they were in charge, but they weren’t wearing the same colors.
I got away and found a crowd of Vyumbe all running away from the fighting. I joined them and because they told us to, we all walked to Kushoto, except the ones who dropped dead along the way. We came to this camp, where I met you. It’s funny—all the people here are Vyumbe, it seems. Some Hulka, but no Kina. I hear it’s different in Eclypso. Now we try to get food, although it’s hard. This is all the fault of the Kina.
CLUE DOCUMENT #11 PREPARED BY THE IICI FOR TRAINING PURPOSES ONLY.
STATEMENT OF LUKU OKESE TO HUMANITY NOW!
I am Luku Okese of Lachryma. I am Vyumbe. I am 14 years old. I lived with my mother until the trouble happened. I have no father—he was killed the last time there was trouble. It was 2 January. I was at home getting ready for school to start after the New Year when my friend ran into the house and told us that the Kina were murdering our people in the market. I wanted to go fight the Kina, but my mother said we all had to run and hide in the Church. I said, mamma, Vyumbe men don't hide from fighting, but she said "You're not a man yet." I guess we showed her. So we went to the church, and we hid there, only very soon the Kina showed up. The Kina put me in the back of the church with the other men. We were told by the Kina guards that we would be executed. They used another word. They said, "You Vyumbe insects won't be able to have any more children if you're all dead.” There were just Kina there, and us. I don't even think the priest was there—he ran away, I guess.
So the Kina started killing the Vyumbe men who were older, like over forty years old. I don’t know why they started with them. They were yelling "The Vyumbe are slaves!" and cutting us down like cane with machetes. After a while they got tired of that, and they stopped killing us and went off and drank. I had to sleep among the corpses of men I had known. I couldn't get away because the Kina set guards at the doors, and I had no weapons to fight them with. Then the Kina took away the women. I think they took all of them away. I think my mother was among them.
That night the Vyumbe and the Hulka attacked the church. The NXA came—they defend the Vyumbe against our enemies. There were some FPLA, too. They killed many Kina in the church during the fighting, and some Kina were captured and then we killed them I helped throw the Kina into graves outside the church. The NXA commander told me to come with him. His name was Sembila. I wanted to find my mother, but this Sembila told us she was dead, because the women had been taken away by the Kina. He told us that he himself had seen her body thrown into a hole in the ground by the Kina. He said the NXA was my home and my family now and he would be like my elder brother. He said I had a choice: go home and get killed like my mother, or join the NXA. So I joined. The NXA took me to a camp not far from Lachryma town, maybe five or ten kliks away. There were tents and everything. I got food, in funny yellow packages that said "UN," and some said "From the People of the United States of America," and there was corn and rice in sacks with a red cross on them. Sembila sent my friend Thibault and some men dressed with Red Crosses in a Red Cross van to go pick up the food. Thibault was laughing about it, how clever it was. He said we stole the food, basically.
We got a little training in how to shoot a gun, and they gave us each an old AK-47 and some ammunition. They made me a squad leader, even though I’m only 14, so I got a pistol, a Russian one. There were these men from somewhere, not Falanga because they had funny accents and they wore different uniforms. They brought the guns and some food in a box with a black sun on the outside and some medicine for when Thibault felt ill. They told us we were needed at the front right away, so they couldn't train us properly.
We were disappointed, but they also gave us little bits of uniform to wear. I liked mine. We all got black bandanas to identify us as NXA. I also got a new pair of boots, but I lost them somewhere. Also, Sembila gave us amulets made of magic bone from an ibex that he said would protect us from bullets and other unpleasant things. It worked, too—I'm still here.
After about a day at the camp, Sembila said we had to go defend the people. He said the Kina were still fighting and now there was the Rakibu. We had heard of the Rakibu, the riders. They kill without mercy and they work for the Kina government in Gondwanaville. We
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[Type text] drove back in the Red Cross trucks. Before we got to town, Sembila gave us a special drink he said would give us more magical armour against danger. I felt really great after I drank it, like I was ten feet tall and could kill twenty elephants, and nobody could hurt me. There were about fifteen of us kids, and we all agreed no one could ever hurt us, but we sure were going to hurt someone else.
When we got to the fighting, Sembila told us there were Rakibu shooting at people holed up in this old building. Sembila told me it was the Lachryma City Hall, although I’d never been there or been inside. Sure enough, the Rakibu were there, and they were shooting like madmen at the Hall and at anything that moved around it. The building was on fire. Huge clouds of black and white smoke were pouring out of it. We snuck up behind the Rakibu—the stupid dogs were too busy slaughtering everyone to notice we’d surrounded them. People were coming out of the building with their hands up, coughing and screaming. Some of them were in uniform, and some weren’t. Some were wounded. The Rakibu started shooting them all, gunned them all down, it didn’t matter who was who. They were yelling things like “Death to the vermin! Kill them all!” Sembila ordered us to start shooting the Rakibu, and we did. Were they surprised! We killed a lot of them—I must have killed twenty myself! They didn’t have anywhere to hide, because now the people who were in the Hall were coming out and attacking the Rakibu, too. After a while, a few men ran over to us and surrendered. They said they were out of bullets, anyway. There were two Rakibu, a Falangan Army captain, and his attendant or something, and a man in a uniform I didn't recognize.
We took them to Sembila and then he took them and us to an NXA commander named Honjo or something. This Honjo told Sembila to use something he called "deep interrogation" on the men. So Sembila told us to beat the men to make them talk. We hated these Rakibu scum and their Kina captain and his Kina servant. Except in the next moment I was really surprised. The servant, the attendant guy, was someone I knew from school—Erasto. He told us he had been drafted into the Falangan Army as a private. He said they made him the captain’s driver. Imagine! Erasto’s only a little older than I am, and he’s the driver. I was really jealous. But all the time he’s telling us who he is he’s looking at me in this questioning way, like asking me if I’m going to kill him, only he’s too scared to show we know each other. Me, too. I was scared to show that, too, because I liked Erasto, even though he’s a dirty Kina Sisi. He was a good footballer. He was always making up funny stories about himself, but somehow in his stories, Ersasto always ended up looking pretty good. So now I didn’t want to hurt him or kill him, but I didn’t know what to do, and I was too nervous to let him know it was okay.
So we tied them all up and took them into this secret room the NXA used as a headquarters. We weren't sure what they might know, but the sergeant ordered us to beat them anyway, whipped them real good. This sergeant, Iko was his name, he’d been in war before, so he knew what to do. I whispered that I’d take care of Erasto, like I was really going to beat him up, but I didn’t hit him that hard. Hard enough to make him yell yes, but not too hard. Sembila and one of the guys with the funny accent came in and told us to stick their heads in a bucket of water so they couldn’t breathe. Well, they talked, but they didn't know anything. Ersasto talked more than anybody—well, that’s Erasto for you! He told us some stuff I didn’t understand about where the enemy was and how many of them, but he used words like “platoon” and battalion” that I only learned later. But he also said that they had been ordered to eliminate the Vyumbe and the Hulka and to join up with the Rakibu. His captain got really mad at Erasto for saying this, and called him a traitor. Ersato answered back, telling the captain he wasn’t about to die for a son of a pig like him, and that he hated him because the captain was always mean to him.
The other prisoners, seeing that Erasto talked, asked us not to beat them anymore. But we did anyway, and again we told them to tell us things or we would kill them. They offered us money to stop. We took the money and beat them some more, until they fell over and were unconscious. I whispered to Erasto to sham being knocked out, and he did. We told Sembila we’d found out
[Type text] everything the men knew, and he told us in that case, shoot them. So we shot them all in the head. All except Erasto. I pretended to shoot him, but I fired into the dirt, and he fell over and I dumped somebody else over him, somebody dead, to cover him. Then Thibault said we should eat their hearts, as he had heard somewhere that would make us stronger. Maybe Sembila told us that, I can't remember. So I had a knife, and I cut out the captain’s heart, since he was an officer and had to be stronger than the rest, and we all ate some. Then we threw the bodies in a big grave with other traitors and enemies in it, near the Hotel de Ville. I made sure Erasto was in the middle of the pile, with a dead guy on top, so no one could notice he was still alive.
I should say that the fifth man we captured, the one in the strange uniform, none of that happened to him. Sembila and Honjo talked to him for a while. They seemed pretty friendly, and they were really interested in whatever he was telling him. They took him away in a big car. He wasn't tied up. I don't know who he is, but from the way he talked I guess he's Kushotan. Funny, he runs this camp we're in. I saw him yesterday and he pretended he didn’t know us, but I know him.
You know the rest. The UN came and made us all disarm. I was tired of fighting, anyway, and a neighbour told me that my mother was alive in this camp. So I came here and I’m with her now. But it’s a hard life here. The foreigners give us some food, but we have to find other ways to help ourselves. What can we do? We have to eat. Mamma is disgraced anyway, so she rents herself out to the men. We have to do what we can to survive, don’t blame mamma for that. And I lost my boots and they took my pistol. Will they let me go back to school, do you think?
CLUE DOCUMENT #12
The Sunday New York Tempus “Reality is News to Us”
6 January 2008 Falangan People’s Liberation Army. According to some observers, Numeria’s FALANGAN CONFLICT BREEDS support comes because as the least MORE HATRED, DEATH numerous tribe, the Hulka are more easily Families Torn Apart. Boys Play Soldier For bought and manipulated. Eclypso, which Keeps borders Falanga on the East and South, supports the Vyumbe tribe’s Xenophobe By Reginald van Gelt, International Party and its military wing, the New Correspondent. Xenophobe Army. Kushoto on the Western border is a sponsor of the current Falangan In an apparent do-or-die battle for natural government, the Rally for Falanga, led by resources, the people of Falanga are at each strongman Jacques-Hughes Zola, supplying other’s throats again in a vicious civil war it with loans and weapons and other military that is at its worst in the central town of equipment. A year ago, allegedly at Lachryma. Kushoto’s urging, Zola purged the Falangan Army of most of the Vyumbe and Hulka Here is every crime imaginable in modern soldiers, making it overwhelmingly Kina war: rape, murder, mutilation and torture, Sisi, Zola’s tribe and the backbone of the and the recruitment of mere boys to do some Rally for Falanga. of the dirtiest work. The rival groups have lived in an uneasy The trouble has been brewing for some time. truce until 1 January, when trouble broke out Falanga’s notoriously unstable, rapidly in Lachryma, a town of about 300,000 souls rotating governments have been ethnically situated smack in the middle of some of the based on a winner-takes-all spoils system richest oil finds in African history. First a that inevitably leaves the losers of the radio programme broadcast a thinly-veiled moment poorer and powerless. And spoils call for Kina Sisi to “exterminate” the other there are: the country is rich in coltan, tribes. Then a riot broke out in Lachryma’s gold—and now oil. So potentially wealthy market district, evidently stage-managed by are the Falangan oil fields that both energy local Rally for Falanga (RF) hacks. giant Charon-Anubis and Russia’s Vyumbe and Hulka civilians trying to shop TSARGAS have been accused of bribery for food and fuel were brutally cut down by and corruption, allegedly spreading cash and machetes and beaten by clubs as the mob even weapons and supplies liberally among surged through town. Swift retaliation came the contending factions—charges the from the other militia and the battle was well corporations hotly deny. and truly joined when the hated Rakibu (“riders”) militia appeared at the edge of the The so-called “Frontier States” bordering city and began to fight Vyumbe and Hulka Falanga also cultivate their protégés. militants. The UN has accused the Falangan Northern neighbour Numerania favours the government of training and financing the Hulka tribe and their party and militia the Rakibu, a charge the government denies. Movement for a Popular Falanga and the
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Human rights workers monitoring the truce If so, the boy’s childhood will be destroyed reported that the rioters within the city were by a life of organized violence. Sources told all Kina Sisi, that they were well-organized, the Argus that the NXA maintains a training and that they quickly separated Vyumbe and camp some five kilometers north of Hulka men from the females. The females Lachryma. There the child soldiers are may have been transported to hastily- given rudimentary military training and a organized brothels in Lachryma, where they thorough indoctrination in NXA were raped and forced to sexually service propaganda. Many of the children are RF politicals and Falangan and Rakibu orphaned by the war and have been fighters. repeatedly victimized sexually themselves. “The NXA and other militias who recruit One such victim is a Vyumbe woman named child soldiers give the children a false sense Shana Okese. Shana fled the rioting to the of belonging,” said Madeleine Clare, a nearby Church of St. Josephine Bakhita. human rights reporter for Humanity Now! Once there, however, she and other fugitives “They also give them strong narcotics and were betrayed. Their Kina pursuers stormed alcohol to remove inhibitions and give them the church and separated the Vyumbe and courage. Kids don’t know they can be Hulka women from the men. “They had killed—they have the bravery born of planned it all,” Shana told this reporter in an ignorance. It’s all a big game to them.” interview that took place before she disappeared. “The women were taken to the The growing teenaged ranks of the NXA are front, the men to the back. The Kina came to supplied by thieving from the Red Cross and look at the women—Bos Gmbimba [local other relief organizations, by punitive RF leader] even the Bishop [Ignotus, a levees, (called “revolutionary taxes” by the controversial prelate]. There was a man in a militants) and by looting and pillage. Young uniform there, too. They inspected the girls and women are either parceled out to women like cattle, then they took a few male commanders as “wives,” sent to “the away in trucks. I was taken away. Some of front” as fighters, or dumped in a kind of the men, too. Everyone else they kill.” traveling brothel to service the males.
But many escaped—amazingly, Shana’s son The Okese boy, if he survived, may have Luku, who had also sought refuge in the been sent to fight the NXA’s tribal rivals chapel. Sometime after the Okese woman either in Lachryma or the countryside. was taken away, the Vyumbe-based New There was intense artillery and mortar Xenophone Army (NXA) liberated the shelling in many sectors of Lachryma. His church, slaughtering many Kina outright. mother Shana Okese is making her weary Luku was seen outside the church, but Shana way to one of the refugee camps the UN has does not know what happened to him then. set up in the Frontier States, one victim among thousands in a long and dreary war. “Some say the NXA forced him to join them,” she told the Argus. “They give the boys amulets and powerful drugs and tell them that NXA magic is so strong they cannot be hurt by bullets. They make the children do terrible things. I saw one boy eat a human heart. “
CLUE DOCUMENT #13
The Gondwanaville Intelligencer "The State, the President, the People."
Gondwanaville, 8 January, 2008—The "assisting the state with its inquiries as a supreme commander and Great Guide of the guest of the nation," and would resume his Nation, President Jacques-Hugues Zola, normal duties at the pleasure of the today issued a strong statement denouncing President. "outside agitators" for the recent trouble in Lachryma, Falanga. The president said that Reports that Rally for Falanga leader, Bos "sinister business and political interests have Gmbimba committed crimes during the conspired to provoke the international recent troubles were "distortions supplied to community to intervene in our sovereign a credulous press by those self-same affairs." He specifically condemned the agitators and human rights busybodies." No Russian energy giant Tsargas for investigation was contemplated into such "collaborating with enemies of the nation, "spurious fairy tales," the statement said. specifically the so-called Frontier States of Numerania, Kushoto, and Eclypso, to rob "Why don't these international busybodies and pillage our natural resources, which look into the odious activities of the spies belong equally to all the people of Falanga, and agents provocateurs of the Frontier not just the Kina, me, and my extended States and their proxies, who only wish to family." pilfer our wealth?" the statement concluded.
The Great Guide reiterated that the peaceful The Great Guide categorically denied as development of Falangan resources would “baseless” the accusation by the Kushotan, continue, "in partnership with benevolent Eclypsan and Numeranian ambassadors to commercial entities such as Charon-Anubis the UN that Falanga was engaging in Corp of Heliopolis, Virginia." “criminal" attacks on its own civilians. Tsargas and Charon-Anubis issued separate Turning to another matter, the statement statements denying any involvement in the denied that the Rakibu militia, the so-called recent disturbances. "Riders" cavalry mounted on horses and armed trucks, were a creation or proxy of the government. The President pledged to form a new national gendarmerie which would make all militias obsolete and unnecessary. He condemned the New Xenophobe Army and the Falangan Peoples' Liberation Army as, "Utterly illegal organizations."
The Great Guide of our Nation also denied that the government had any role, "except that of peacekeeper and law enforcement officer" in the recent fighting. He specifically denied that Bishop Ignotus of Lachryma was responsible for any of the killing there, and said the bishop was
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CLUE DOCUMENT #14
REPUBLIC OF FALANGA
OFFICE OF THE CHIEF OF THE ARMY
Press Relations Office Contact: P. Oneillo
For Immediate Release:
FALANGAN ARMY PFC. ERASTO SENTWAKI OF THE BRIGADE HQ, MOTOR POOL RECEIVES THE “ORDER OF THE LION OF FALANG” FOR CONSPICUOUS BRAVERY IN THE FACE OF THE ENEMY.
10 January 2008 -- In a gesture of national pride in the intrepid troops now suppressing a vile criminal conspiracy, our President, Great Guide, and Commander in Chief named a soldier as the latest recipient of the prestigious “Order of the Lion of Falang”. The Order, a gold medal with scarlet ribbon, is the highest decoration bestowed upon military personnel by the State.
The obverse of the medal depicts the full profile of a lion defending his pride. The centrepiece is flanked by two palms. Below the lion is inscribed the motto in Swahili: “I Fear No Man.” The reverse shows the monogram “RF” in intertwined letters. The ribbon is scarlet grosgrain silk.
The citation presented to Pfc. Sentwaki in a military ceremony today at Central Barracks read: “Captured by a low ruse of the enemy, and despite pressure to talk under torture, Private Sentwaki refused to give any information to the traitors beyond name, rank and serial number. Seeing his opportunity, he then fought courageously to attempt to free his superior officer and comrades. With no thought for his own safety, Private Sentwaki attacked two of the subhuman criminals with his bare hands, wresting a gun away from one of them and killing at least three enemy criminals before being grazed by a bullet and rendered unconscious. He was mistaken for dead by his captors, who threw him into a hastily dug grave where other bodies were piled on top of him. Sadly, no one else captured with Private Sentwaki survived to tell the tale. When he regained consciousness, Private Sentwaki, although wounded, cleverly escaped the cordon of enemy steel around the conflict zone and made his way on foot to battalion headquarters, where he reported for duty and provided valuable intelligence about the enemy. Among other items, Private Sentwaki was able to describe the atrocity committed at the Lachryma City Hall, when the enemy forces, including elements of the Vyumbe and Hulka criminal gangs, summarily executed each other’s non-combatants and soldiers attempting to surrender as they fled the burning hall. For his patriotism and gallantry, the nation is proud to award to Private First Class Erasto Sentwaki the “Order of the Lion of Falang.”
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Asked for comment, Pfc. Sentwaki stated: “I am honoured indeed to receive this great tribute from my nation. I feel I am somehow unworthy of it, if only because I failed to rescue poor Captain Ouida. His bravery and kindness will always be an inspiration to me. I fought hard, but I was only one man against many. But despite my failure, I know that by struggling together our Kina Sisi nation can suppress all forms of bad rebellion. I only hope that after a long, long rest I can re-join my unit so that we can avenge the massacre at the Lachryma City Hall. Remember the City Hall! Long live our Able Oarsman!”
At an earlier ceremony today, Pfc. Sentwaki was promoted Corporal.
For further information or interviews, contact the PRO, P. Oneillo.
***
Clue Document No 15
INFORMATION REPORT SUBMITTER: Desmond Travers TIME & DATE: 1230 hrs 11 Jan 2008 SUBJECT: Location of alleged mass grave. INVESTIGATION: Falanga conflict DETAILS OF PERSON(S) INTERVIEWED Name: Madeleine Claire Address: C/- Humanity Now
Date of Birth: 1 June 1979 Contact Details: +41-38484848484 Interviewer (s): Travers Time, date and location of Interview: Central Barracks, 1145 10 Jan 2008
NARRATIVE:
Yesterday I attended a medal presentation ceremony at the Central Barracks of the Falangan Army. After the ceremony I spoke to Madeleine Claire, a country monitor for Humanity Now. She told me she had received information regarding the possible location of bodies of people murdered by members of the Falangan Army. The grave site is in territory now held by NXA.
The location of the grave site is: NXXX◦ xx’xx.x EXXX◦ xx’xx.x
Apparently her informant had been walking his dog in parkland near his home and noticed that there had been some disturbance in bushes. He had heard what he thought were gunshots coming from this area on 2 January.
I recommend an investigation team conduct an assessment of this site.
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Clue Document No.16
INFORMATION REPORT
SUBMITTER: Desmond Travers TIME & DATE: 1200 hrs 11 January 2008 SUBJECT: Location of room allegedly used for interrogation and torture of prisoners. INVESTIGATION: Falanga Conflict. DETAILS OF PERSON(S) INTERVIEWED Name: Erasto Sentwaki Address: Central Barracks, Army of Republic of Westland
Date of Birth: 10 October 1991 Contact Details: c/- PRO P. Oneillo Interviewer (s): Colonel Desmond Travers Time, date and location of Interview: Central Barracks, 1130 10 Jan 2008
NARRATIVE:
Yesterday I attended a medal presentation ceremony at the Central Barracks of the Falanga Army. One of the medal recipients, Pfc Erasto Sentwaki of the Brigade HQ Motor Pool spoke to me after the ceremony. I had previously interviewed Synge on 9 January. On that day he told me he had been captured on by NXA fighters near City Hall on 2 January 2008 and taken to a room in a nearby building where he was interrogated and tortured. Today he pointed the room out to me.
It is located at XXXXXXXX, Falanga.
I recommend the room be searched to determine if any evidence exists there that corroborates his statement.
SIGNATURE: DATE:
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Humanity Now! For a Free Human Race
Field Report No. EQ004/YR
On August 24 we interviewed Tamasha Lagat. Lagat told us she witnessed murder and rape and indeed was raped herself, during the recent fighting in Lachryma. The interview took place in Lagat’s parents’ home in the Lachryma.
Lagat is eighteen years old and a student at the Zola Academy for Young Women. She was wearing her school uniform during the interview. Despite her young age, she is an articulate historian.
She said she was in class at her university when the fighting broke out on August 18. A number of rounds actually came through the windows of her lecture room and hit the blackboard. The teacher told everyone to crouch under their desks or tables for safety. They were that way when a squad of soldiers burst into the classroom and began firing into the ceiling. She was terrified. Many of the girls started screaming and crying. The teacher, Madame Chebet, stood up to protest this behavior and to calm the soldiers, and she was immediately shot dead.
This produced a panic and some of the girls attempted to flee, Tamasha among them. Soldiers grabbed her before she could escape through the door, and also seized classmates named Ula and Jamila.
The girls were dragged out of the university and thrown into the back of what Tamasha called a “tank.” Further questioning elicited that the vehicle was probably an armored personnel carrier, and that there were two of them.
They were beaten by the soldiers and groped as they were thrown into the back of the vehicle, and made to lie face-down on the floor with the soldiers’ boots grinding into their backs.
Tamasha said the troops were wearing government army camouflage. She knows this because she has often seen soldiers in the street well before the outbreak of violence. She added that her father had been in the Army years ago, a fact of which he is quite proud, so she knows a little about it.
Most of the troops were wearing helmets, but some were wearing maroon berets (“berets the color of dried blood”). “It was the commandos,” she said. “They are the worst of the
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worst.” There were approximately twenty of them, and one of them, wearing some sort of badge of rank on his shoulders, carried a pistol, not a rifle, she said. It was he who shot Madame Chebet and seemed to be in charge, as he yelled at the others to throw Tamasha and her classmates into the APC. “I think he was a lieutenant,” she said, “but he could have been a captain. Or maybe a major.”
They drove for many minute and then the APC turned into some kind of courtyard and stopped. Tamasha and the other girls were dragged from the back of the vehicle and frog-marched them into what thought was an improvised office or headquarters in a wrecked villa.
The soldiers were laughing and fondling them. The girls were crying and begging for mercy, but the soldiers threw them to the floor and began to rip their clothes off them. They were completely naked, which elicited many jokes and remarks from the paras on the state of their bodies. Tamasha was pinned down by a big bearded soldier (“He stank.”) but she turned her head and saw the officer not six feet away, sitting at a table with his feet up on it and talking away on a radio. The officer ignored what was happening to her and the other girls.
The big bearded para raped Tamasha, forcing himself into her and grabbing her so hard she was deeply bruised. She offered to show us her bruises. But we declined, while her mother, who was present at the interview, wailed. Then another soldier took the bearded one’s place, and another. She thinks five men raped her in all.
In the meantime she could hear Ula’s and Jamila’s screams and could glimpse men laying on top of Ula. She could not see Jamila. She assumed they were being raped, also, and indeed later when the three were rescued, they told her that is what happened.
It should be noted that Tamasha’s affect during this interview was one of unusually unhesitating candor. She never wavered, she offered very personal details (such as the bruises) and was eager to give us information. Although her mother wept constantly and beat her head with her fists during the interview, Tamasha was dry-eyed throughout. We had the strong impression that the emotion she was primarily feeling was rage. She expressed a desire that every man in the unit responsible be killed. She blamed not only them and their officer, but the Army and President Zola. “Without the tyrant’s orders, none of this would have happened.”
The assaults stopped when there was a sudden outbreak of gunfire outside. One of the paras ran in and shouted that rebels were closing in on the villa on three sides. The officer yelled an order and everyone grabbed a gun and ran out of the villa. “They didn’t want to be caught in a rat trap,” Tamasha observed. She could hear shooting and shouting, at first loud and then receding as the government troops apparently broke out of the trap.
She and her friends lay there for a while, sobbing. Tamasha managed to drag herself to her feet, “though I hurt all over,” and tend to Ula and Jamila, who, she said, were worse
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off than she. She got them into their clothes, dressed herself and even found an AK that had been abandoned by the troops. Armed with this, she reconnoitered the courtyard. It was empty, and the APCs were gone.
While she was standing there wondering how to get herself and the others to safety, three “technicals” (her word) pick-up trucks with armed men in the back, drove into the courtyard. Realizing these were militias, she put the AK down and held up her hands. She explained the situation to a man who gave his name as Mugo Kiprop. He directed his men to take the girls home, but first, she said, he and his troops trashed the villa. There was a computer and some documents there, and the rebels threw them into a pile in the courtyard and set fire to them. “Utterly stupid,” was Tamasha’s comment. “There was no doubt important intelligence in those documents.”
Ula and Jamila have fled Lachryma for UN refugee camps, she believes.
She said she would be open to further interviews, although she might be in another location, as her mother is ashamed of her and her father tried to kill her, as he believes she is completely disgraced by the incident. “I hit him with my field hockey stick and took the knife away from him,” she told us.
Although she was completely cooperative, Tamasha also some choice words for Western aid and human rights groups, the least of which was to call us “jackals who trail after lions for scraps of the slaughter.” Although we believe her account in all her details, it is clear that she feels she is using us to advance her own agenda, which, simply put, is vengeance.
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Humanity Now! For a Free Human Race
Field Report No. EQ005/YR
On August 24 we interviewed a man named Abel Njeri. Mr. Njeri is, or was, a junior clerk in the Ministry of Works, aged 22. He was interviewed at a refugee camp on September 25.
Njeri said he was at work in his offices at the Ministry when his superior gave him “a very important commission”, namely, to deliver some plans for a new water treatment plant by hand to the Presidential Palace. Njeri was very honored by this assignment, as it indicated his boss’s confidence in him and might have been a harbinger of a promotion and possibly a raise, whereupon he could marry his girlfriend Raisha. Njeri was at pains to emphasize his relationship with Raisha, referring to it several times.
Njeri gathered up the plans and set off by scooter, with the plans in the saddlebags, to the Palace where, he understood, President Zola himself was meeting with a big contractor. His excitement at the prospect of meeting the president occupied his mind so much he was not quite paying strict attention to his surroundings—a mistake, he told us ruefully, that he would soon pay for.
Also fatefully--and foolishly--he decided that as he had a little time, he would make a slight detour to visit the graveyard where his mother is buried. This too was an error, he said. He left the graveyard feeling pensive and melancholy, and also anxious, as he had tarried too long and now had little time to get to the palace. He sped up, distracted and heedless of anything happening around him.
His route took him past the military base, which is near the graveyard at the convergence of six different roads. He was almost in front of the military base when he realized he had driven smack into a riot. “It was as if I woke up from a dream,” he said. “There were hundreds of people running either toward the base or away from it, some of them dragging bodies of the fallen. There was blood and broken glass everywhere and black smoke from burning cars, and the sounds of yelling and gunfire coming from outside the base and inside.”
He knew the protestors were anti-government and anti-Zola, and that he, as a loyal functionary of the state, was in danger from them. Terrified, Njeri tried to reverse course and turn his bike around, but when he did he was confronted by a huge mob of howling protesters coming at him (and the base) like a wave. Deciding in an instant that as a
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government official he was safer in the military base, he turned around again and went as fast as he could for the gate. He zig-zagged among protestors, cars and impromptu barricades, head down but yelling the word “Zola” over and over to communicate loyalty. He actually made it all the way to the gate, which to his surprise was wide open, and was congratulating himself on his good fortune when a government soldier spotted him and, evidently thinking he was a rebel with a bomb, shot him.
The round went into his leg and he crashed the motorbike, injuring himself further. Groggy as he was, he had the presence of mind to take the plans out of the saddlebag with the vague thought of having the soldiers deliver them. Instead, several soldiers ran out from behind cover and, seizing him, dragged him deeper into the base.
He screamed that he was a government clerk, but they hustled him into the barracks, slapping him around the head and shoulders. Once inside, they snatched the plans from him and studied them, while he pleaded in vain for medical attention. The plans worried them; they looked from them to him with grim expressions, then back again. “These are military plans,” one of them said. “The colonel must see them.” They tied Njeri to a bed in the barracks and one of them bandaged his leg—badly, he said. When he tried to tell them who he was and that the plans were for a water treatment plant, they simply told him to shut up and rather absent-mindedly punched him for emphasis.
After a few minutes, a man who seemed to be a senior officer, from his age and demeanor, came in with the soldiers who held the plans. “Now, then,” this man said, “Trying to bomb a water treatment plant, eh? Who sent you? Are you one of NXA’s hyenas, eh?” Again Njeri explained that he was a clerk, and that the president himself was waiting for him, but this seemed only to enrage the Colonel, if that’s what he was, who said such a statement was an absurd lie. “Why would the Leader talk to a twerp like you?” the colonel demanded. Then he turned to a soldier wearing stripes on his uniform. “Treatment No.3,” he snapped, and went off.
With that, said Njeri, they tortured him. But he was reluctant to describe the method or methods they used, saying only that they “degraded” him. Our attempts to coax the details from him failed. He would only say that it was a “painful episode” that “destroyed me inside.” Finally we said bluntly that we had been informed that he had been the victim of a sexual assault. Njeri grew very quiet. Then after a moment he said, “such a thing would be unbearable.” He spoke again of his betrothal to Raisha, which has been called off indefinitely “now that I am nothing.” He says he loves her and she loves him, but the conflict makes his future very uncertain. He is afraid to go back, as he has been branded a rebel and the government—his government—would have him killed.
He does not know how long he will be in the camp. He reluctantly agreed to a further interview, after many attempts on our part to elicit the facts we believe he is withholding.
“Why not?” he said. “I have no one else to talk to.”
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Humanity Now! For a Free Human Race
Field Report No. EQ003/2008
We were placed in contact with a woman named Farida Do, who, we were told, is a victim of sexual violence. We interviewed Do on 23 January 2008, at the home of a relative whose name and location we are withholding for reasons of security.
Do told us that she is a resident of Lachryma, where there was recent fighting between the government and rebel militias. She is not involved in the rebellion, she said, nor is she a strong supporter of the government. She has a small shop that sells dry goods and sundries. “I just want to be left alone to live,” she said.
On January 2, when the fighting started, she was in her shop as usual. She wanted to flee for her home, but the battle blocked any escape. She hid behind the counter of her shop when mortar rounds exploded outside, and for a while she thought she would be safe. But then a group of armed men entered the shop.
They were dressed in a motley assortment of camouflage and civilian dress, and the weapons they carried varied from AKs to hatchets. Do recognized them as members of what she called “the Wenyeji.” This is a word that means “barbarians.” It is a term used by the common people here to refer to what we believe is a government-sponsored and funded militia called the Rakibu. They are reportedly mercenaries hired by the Zola regime to conduct terror operations against the rebellious elements of the civilian population. The incident with Do is one of the rare instances where we have had any evidence of their actual existence. The Rakibu are reportedly recruited from neighbor states. Falangans we have spoken to claim to be able to tell they are foreigners by their physical appearance, by their dialects and accents, and also by their ragtag, improvised uniforms. Do told us she knew immediately that her shop had been invaded by these hirelings.
“They were Wenyeji,” she said. “Black slaves of the dictator and Kushoto. I know Wenyeji by their noses and their accents. They came into the shop very loud and bold—I think they were on hashish. Right away, they began looting. They grabbed my best cloth and all my foodstuff. I cowered behind my counter, but it was no good. They found me.
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They threw me on the floor and beat me with rifle butts. The called me a ‘rebel whore.’ They accused me of selling goods to the rebels, which wasn’t true—how do I know who is a rebel and who is not?
I tried to crawl away, but they kicked me and grabbed me. I think there were six of them. I screamed for help, but no help came. They threw me against the wall and laughed when I cried.
Then they disturbed my clothing and they had their way with me, one after the other, laughing and calling me vile names. I don’t want to talk about the details, they’re too shameful. But what they did to me shouldn’t be done to the lowest whore. They degraded me. Then they left, warning me to tell everyone I knew that this was what happened to rebels and apostates.
I came here. I don’t know if I’m safe here, but I can’t go back. I didn’t tell anyone what happened to me, until now, and I’m only telling you because my aunt thinks it might help others. It certainly doesn’t help me. Nothing ever can.”
We are quoting here from a longer interview with Do, in part because her account was halting and punctuated by long silences and spells of weeping.
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FALANGA Exercise 2 Role Player Documents
PRACTICUM
INVESTIGATION OF WAR TIME SEXUAL VIOLENCE COURSE INSTRUCTIONS FOR ASSESSORS – WITNESS INTERVIEW
This segment of the course is important because it provides the opportunity for students to demonstrate that they have understood the theory of contacting and interviewing vulnerable witnesses and victims of sexual violence and are able to actually apply that theory to an interview situation. The Witness Interview Practicum is based on Clue Documents we have given to the students. They give the student the context in which they will conduct the practical exercises.
The Clue Documents consist of news stories and other documents, including transcripts of intercepted radio broadcasts, regimental papers, posters and flyers, maps, and flags. These give the investigator discrete clues as to the details and the nature of the conflict involving the imaginary country of Falanga, with the interference of the “Frontier States” of Numerania, Eclypso and Kushoto. The events described in the Clue Documents are based on a Master Scenario that contains the full "story" of this conflict. You, the moderator, have the Master Scenario; the students do not. They have to deduce the Scenario from the clues in the Clue Documents.
Falanga and the Frontier States been given certain cultural, historical, ethnic and politico-economic features. This is done deliberately, incorporating aspects of a number of such features from diverse conflicts, in order to make the practical exercise as realistic as possible.
The assumed role of students in the practicum Students have been told the following: “You are part of an investigation team tasked (by ???) to investigate whether crimes within the jurisdiction of the Courts of Bosnia and Herzegovina were committed, for possible referral to a Prosecutor to establish a formal investigation. Using what you have learned from the Clue Documents, you will interview a witness. ”
THE INTERVIEW OF A WITNESS Students are to conduct an interview with one of four potential witnesses, Shana Okese, Miriam Damali, Erasto Sentwiki or Luku Okese1, based on information they have deduced from the Clue Documents.
The witness interview exercise affords the investigator the chance to apply the knowledge imparted in the “Witness Interview” module and the “Approaches to Witnesses and Trauma” module. The witness has knowledge of some of the events described in the Clue Documents. The students have been told to: Approach the practical exercise as they would a real investigation. Prepare in writing the areas that they intend to cover with the witness. Take hand-written notes, which could be used to draft a witness statement (Note: In this case they do not need to draft the statement. However, it is important that they have recorded the information and could prepare a draft statement, if required. Therefore, please check to see whether the students actually have the information noted.) Divide the time between the students so that each can participate fully in the interview. If they believe the topic given has been covered in sufficient detail, and still have time available, they should cover other areas that the witness may be able to provide information on.
Students have received instruction on using the PEACE model for interviews. The PEACE mnemonic represents all five phases of the investigative interview: P Planning and Preparation E Engage and Explain A Account, Clarification and Challenge C Closure and E Evaluation
1 Other witness details may be inserted here.
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Students have also been told that the witness may or may not be completely cooperative at first. The witness may also dislike the interviewer’s question or their general approach. Her/his mood and responses may change. The Student’s ability to negotiate the twists and turns of the witness's emotional responses will be assessed, along with their interaction with the interpreter.
Present for the interview will be: The witness; Two or three students (according to the student groupings – please see separate list) and The assessor
Because of the number of students, the time available for a practical interview is limited. Therefore, the students will not have time to cover all topics that this witness can provide information on.
The total time for the exercise will be 1.25 hours. One hour of this is for the interview (to be divided between 2 students who each must take a turn as the “interviewer”). The last 15 minutes will be for feedback from the assessor, witness and interpreter.
Assessment
Your role is to facilitate the session and to provide constructive feedback to the students.
Note: please ensure that the students divide the time equally (as the “interviewer”) so that each can fully participate in the exercise.
Attached are copies of the assessment checklist – please use this in assessing the performance of students and providing feedback.
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ASSESSMENT CHECKLIST – INTERNATIONAL INVESTIGATOR’S COURSE
STUDENTs: ______
ASSESSOR: ______
INTERPRETER: ______
ROLE PLAYER: ______
Points to consider in providing assessment:
1. Planning and Preparation Was the interview process planned? Did the interviewers appear well prepared for the interview? Other comments?
2. Engage and Explain How was this done?
How well was the process explained to the witness How did the investigators interact with the witness and interpreter?
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Did the investigators speak to the interpreter in the first-person?
Were any questions or concerns raised by the witness? If so, how well were these dealt with? Other comments
3. Account, Clarification and Challenge Did the interviewer/s seek an account from the witness? Did the interviewer/s ask questions to clarify the account? Did the interviewer/s challenge inconsistencies in the witness account? Was open and closed questioning used? How effective was the questioning technique in eliciting the information that the witness could potentially give? Were follow-up questions asked to explore all lines of potentially available information?
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Did the investigators ask further questions on points that were unclear or ambiguous? Was the witness dealt with showing sensitivity and respect? Any comments on body language/non-verbal communication. Other comments?
4. Closure Was the closure process adequate and informative? Was the witness invited to add anything or clarify anything stated in the interview. Did the interviewer/s explain what would happen with the results of the interview? Were adequate arrangements made for any follow up? Other comments?
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5. Evaluation The interviewers should be asked to evaluate: - The information they received - How the information will affect their investigation - Their own performance Some other issues to consider:
6. Security and protection issues Were these raised? If so, were they addressed adequately? Other comments?
7. Comment on the student’s ability to control the interview. Ability to negotiate the twists and turns of the witness's emotional responses and get the information required. Ability to connect with the witness. Ability to control the interview and move the interview along in a methodical way. Interaction with the interpreter. Other comments?
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INPUT FROM ROLE PLAYERS Please ask the role players for their comments. They have been asked to provide feedback as follows:
Role Players (extract from instructions provided to role players): At the end of the exercise, the assessor will give constructive feedback to the students on their interview. You will also be asked for your comments and this is an important part of the practicum. As the interview is being conducted, please consider: How the interviewers made you feel? If you raised any concerns with the interviewers, how were those concerns addressed and resolved? How clearly was the process explained to you? How fully was the information elicited from you? Were you asked to clarify anything that was confusing or ambiguous? What worked and what did not work? Comments on body language or non-verbal communication. Any (constructive) suggestions for improvement or factors that the interviewers should consider when conducting similar interviews in the future?
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ASSESSMENT CHECKLIST – INTERNATIONAL INVESTIGATOR’S COURSE
STUDENTs: ______
ASSESSOR: ______
INTERPRETER: ______
ROLE PLAYER: ______
Points to consider in providing assessment:
1. Planning and Preparation Was the interview process planned? Did the interviewers appear well prepared for the interview? Other comments?
2. Engage and Explain How was this done?
How well was the process explained to the witness How did the investigators interact with the witness and interpreter?
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Did the investigators speak to the interpreter in the first-person?
Were any questions or concerns raised by the witness? If so, how well were these dealt with? Other comments
3. Account, Clarification and Challenge Did the interviewer/s seek an account from the witness? Did the interviewer/s ask questions to clarify the account? Did the interviewer/s challenge inconsistencies in the witness account? Was open and closed questioning used? How effective was the questioning technique in eliciting the information that the witness could potentially give? Were follow-up questions asked to explore all lines of potentially available information?
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Did the investigators ask further questions on points that were unclear or ambiguous? Was the witness dealt with showing sensitivity and respect? Any comments on body language/non-verbal communication. Other comments?
4. Closure Was the closure process adequate and informative? Was the witness invited to add anything or clarify anything stated in the interview. Did the interviewer/s explain what would happen with the results of the interview? Were adequate arrangements made for any follow up? Other comments?
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5. Evaluation The interviewers should be asked to evaluate: - The information they received - How the information will affect their investigation - Their own performance
Some other issues to consider: 6. Security and protection issues Were these raised? If so, were they addressed adequately? Other comments?
7. Comment on the student’s ability to control the interview. Ability to negotiate the twists and turns of the witness's emotional responses and get the information required. Ability to connect with the witness. Ability to control the interview and move the interview along in a methodical way. Interaction with the interpreter. Other comments?
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Master Scenario
Part 1
Background
The sources that provide information for the background to the State of Falanga (Part 1) are drawn from “World Fact Book: Sub-Sahara and Central African States” and also from briefing documents prepared for intermediaries and Peacekeeping Forces which are committed later to the Republic of Falanga.
These sources may be considered reliable.
History, Political Structures
The Republic of Falanga (RF) is a landlocked country in the middle of Africa, roughly the size of The Netherlands. It is surrounded on all sides by hostile states: to the East, and South, Eclypso; to the West, Kushoto; and to the North, Numerania. The capital of Falanga is Gondwanaville. (See Map of Falanga).
The ethnic makeup of Falanga consists of three main tribes: the Vyumbe ['Human Beings'], the Hulka ['Human Condition'], and the majority tribe, the Kina Sisi ['People like Us'], or Kina. The principal languages are tribal dialects and French.
The principal natural resources of Falanga are: coltan (used in manufacturing computers) and gold. Recent oil exploration by Western multinationals and the Russians indicates the presence of large reserves of sweet crude in the centre of the country.
Falanga is nominally a constitutional republic, ruled by the Basic Constitution. However, in the past ten years, the country has grown notably unstable, with ethnically-based political parties forming temporary alliances to destabilize the remaining power's government, and then establishing temporary kleptocracies which collapse in their turn. These parties, with their ethnic affiliations, are: the Rally for Falanga (RF) (Kina), the Movement for a Popular Falanga (MPF) (Hulka, the smallest of the three tribes), and the Xenophobe Party (XP) (Vyumbe). At the time of the events in this scenario, the RF controls the government. The President is Jacques-Hugues Zola.
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Armed Forces and Belligerents
The tensions among the main groups has resulted in a breakdown of central authority, particularly in the Army, which over the years has lost its multi-ethnic character and is increasingly Kina in membership. In self-defense, the other two tribes have formed tribal- based militias, the Falanga Popular Liberation Army (FPLA) (Hulka) and the New Xenophobe Army (NXA) (Vyumbe).
In addition, there exists a third militia, widely suspected of being a creature of the Falangan government. It is made up exclusively of members of the Kina tribe and is well-armed and well-funded. This militia is a horse-and-technical (armed small truck) mounted infantry known as the Rakibu ['riders']. They attack mostly defenseless villages and women and children, and always Hulka or Vyumbe, driving them out and resettling Kina in their homes. The Rakibu has been accused by leading human rights groups and some governments of widespread violations of humanitarian law, including rape, murder, and pillage.
All three militias recruit child soldiers. While the three parties have made numerous complaints about serious violations of humanitarian law at each other's hands, all of which are true, the conflict does not have its roots in the ethnic tensions so carefully fostered by the former colonial power (Antartika). Rather, the fight is for control of the natural resources of the nation, and the considerable revenues that can accrue to the winner.
The “Frontier States” Issue
The various factions in Falanga are secretly sponsored by the governments of the surrounding states, the so-called "Frontier States." Eclypso sponsors the Vyumbe, and shares in some part in their ethnicity; Numerania favors the Hulka, as it believes this tribe, being least numerous, can be most easily controlled. And Kushoto overtly supports the current Falangan government, led by the Kina-dominated Rally for Falanga, but from time to time covertly supports both the enemy factions, as the Kushoto alter their tactics to advance their own interests—mostly in the Falangan oil.
All of the Frontier States want to control Falangan resources, directly if necessary, but preferably by proxy through their client militias. The Frontier States send their proxy armies weapons, equipment, medical supplies, and food stolen from relief organizations.
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Eclypso and Kushoto have established refugee camps on their territories, which are populated as carefully as possible with one ethnic group or another, and which serve as militia training camps, rest and relaxation centers, and focal points for relief supplies from the international communities. In the case of Kushoto, a secondary function of the refugee camps is to draw off and immobilize surplus Falangan population, thus denying the Falangan government a source of soldiers, and making it easier for Kushoto’s client armies to maneuver in former Falangan territory.
Outside the Frontier States are the Western governments and multinationals, all of whom have an interest in the outcome of the war, but who are themselves divided as to who the most desirable Falangan faction would be. It is likely to be the faction that rules and can deliver the raw commodities that Western interests seek.
Part 2
Present Situation
Information on the present situation derives from the media and from reports by journalists, in situ. This is particularly the case with reports for the “World Today” programme, which is syndicated worldwide (BBC, Voice of Africa and others). Journalists who are syndicated to this programme are generally considered to be reliable.
Miriam Damali is one such journalist. She is of Falangan origin but is of mixed ethnicity. She has gained her reputation especially within Falanga for her previous reports on Antartikan abuses during the Colonial period. She is a popular figure with most actors and seems to have ready access to the main groups especially at the political level.
This Master Scenario focuses on events occurring in and around the town of Lachryma , near the centre of the country. Lachryma is notable for two things: it is situated in the heart of newly discovered oil fields, and until recently, it has a history of peaceful coexistence among the three tribes who live within the township. But that has changed.
Miriam Damali has received reports from a Falangan government official, a family friend, to the effect that circumstances in Lachryma are disimproving and that tension is rising among the Hulka and Vyumbe tribes. She proceeds to Lachryma and arrives there on 3 January. The events reported on the days prior to her arrival are from her interviews of witnesses and in some cases survivors of various incidents.
On 1 January, 2008, Radio Falanga, a government-controlled station, broadcasts an attack against the Hulka and Vyumbe, accusing both tribes of treason and of dealing with the enemies of the republic—meaning the Frontier States. It calls for the “extermination" of all treacherous elements.
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On 2 January, a riot breaks out in Lachryma. Human rights observers who have been on the ground in Falanga for two years, note that the riot seems well-organized, that the rioters are mostly Kina tribespeople, and that their movements against their co-citizens seem to be directed by members of the government party, the Rally for Falanga (RF). The local party chairman, Bos Gmbimba, is seen encouraging the rioters.
The riot concentrates on Vyumbe and Hulka neighborhoods. Victims are burned out of their homes, women raped.
Miriam Damali hears reports of various incidents of violence. One such incident is where Vyumbe and Hulka women and children fleeing from Kina rioters take refuge in the Church of Josephine Bakhita. It appears that some one hundred sought sanctuary there but a clergyman, a Kina named Bishop Ignotus betrays them all. He summons the rioters to the church, and the refugees are discovered. Miriam meets one of the Vyumbe women who survived the ordeal.
The woman in question is a Vyumbe, Shana Okese, forty, mother of a teenaged son, Luku, 14. She informs Miriam that on the afternoon of 1 January, with the riot coming closer to her home, she fled with her son to the Church to seek sanctuary. There are perhaps a hundred Vyumbe and Hulka hiding in the church. The ‘Kina rioters’ separate the women from the men. Shana is herded toward the altar with the other females, while Luku and the other males are taken to the rear of the nave.
Then the women are ‘inspected’ by the rioters. Shana recognizes Bos Gmbimba as one of the inspectors. A man she does not know, but who is wearing the uniform of the Falangan Army, possibly an officer, is also present. The third ‘inspector’ is Bishop Ignotus himself.
Crying, "The Vyumbe and Hulka are slaves and vermin" the rioters separate the captured men who are above the age of forty and hack them to pieces with machetes. Shana notices that all the machetes seem very shiny and brand-new.
Shana and a few other women are separated from the rest. They are put in a truck and driven to a Falangan quarter of the town. There they are imprisoned in a house and told by Bos Gmbimba that they will be used for the ‘comfort’ of the Falangan forces and RF party faithful. When the women begin to cry, Gmbimba warns them they will be killed if they do not comply or if they try to run away. When she asks what happened to Luku, Gmbimba just laughs. Shana is ‘dishonoured’ by RF politicals, including people she knows well. Among those present are men wearing Rakibu and Falangan Army uniforms and insignia.
But the NXA and the FPLA also have units in Lachryma. After some confusion, on the evening of 2 January, they counterattack the rioters, killing many. Some Kina are captured and summarily executed, then hastily buried in mass graves. The NXA also liberate the Church of St. Josephine Bakhita. Although some of those captured by the
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rioters have been executed, others are still alive when the NXA attack the church. Bishop Ignotus evades capture and goes into hiding. Human rights observers and reporters on the scene see Luku among others taken away by NXA militiamen.
Luku has been conscripted into the Vyumbe-run New Xenophobe Army (NXA), whose commander, Commandant Ronjo, has told him that their mother has been murdered. He also tells him that he will be killed outright if he does not join the NXA. Ronjo forces him to take a drug which he says will make him fearless.
On the morning of 3 January, the Rakibu suddenly appears on the edge of Lachryma and attack the town. They concentrate their energies exclusively on NXA and FPLA militants, and Vyumbe and Hulka civilians. The Rakibu drives a mass of terrified civilians into the City Hall. There the remnants of an FPLA platoon try to defend them. In the firefight, the Rakibu deliberately torches the City Hall, incinerating those within. The few who manage to stagger out of the inferno and surrender, whether FPLA or civilian, are gunned down.
Luku joins in the counterattack against the Rakibu. In a stroke of luck, his section captures two Rakibu, an ‘adviser’ dressed in the uniform of an officer of the Falangan Army and his driver, and a fifth man dressed in a uniform the he has never seen before. This man is in fact a Kushoto colonel.
Luku along with other an NCO and other soldiers are ordered by their platoon commander, Lieutenant Sembila, to torture and mutilate the two Rakibu and the Falangan officer and his driver, one Private Erasto Sentwaki. Lt. Sembila interrogates the Rakibu and the officer but does not bother with the soldier as he, being a soldier, has no ‘command authority’. After some mysterious discussion with Commandant Ronjo, the Kushoto colonel is taken away in a jeep.
Guided and encouraged by the NCO a veteran of other conflicts, they torture and mutilate the prisoners, who give very little useful intelligence. After their prisoners lose consciousness, Ronjo orders the group to execute them, which they do by shooting them in the backs of their heads. Luku participates in this but does not execute Pte. Sentwaki who he recognizes from high school. Aided by a diversion created by Luku, Sentwaki is hidden under corpses and later makes his escape. Luku is ordered to join a burial party. They then bury the others in the park near the central square along with other executed enemy troops.
On 3 January, after heavy fighting amongst the militias, the Falangan Army arrives at Lachryma. Their officers are seen directing Rakibu operations, and slowly the tide turns against the NXA and the FPLA. The Falangan Army use mortars and light artillery to shell the Vyumbe and Hulka strongholds, including neighbourhoods not occupied by the opposing forces. The NXA and FPLA also have mortars, and they retaliate. During the shelling, mortar rounds strike an outdoor food distribution center run by the Red Cross, which is well out of the way of the main fighting. Forty civilians waiting in line are
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killed, and more wounded. The Red Cross and human rights NGOs report systematic intimidation of aid workers and human rights defenders by all parties to the conflict.
Mortar rounds also strike the house where Shana is being held. In the confusion, she escapes and joins a stream of refugees heading for the nearest camp.
In the meantime, the United Nations intervenes with a peacekeeping force that separates the combatants and demobilizes the child soldiers on all sides.
After numerous hardships, Shana arrives at a camp in Kushoto run by the UNHCR. There she is reunited with Luku, who has made his way to the camp after being released from their militia. The Kushoto colonel they encountered in Lachryma is camp commandant. He recognizes Luku and, somewhat unguardedly, accuses him of war crimes. He is interviewed by UN commission of inquiry investigators. Shana is interviewed by UNHCR and Humanity Now! a leading human rights group. Statements are taken from the family by these researchers.
The Okeses are also mentioned in press articles written about the conflict.
Erasto Sentwaki is promoted to Corporal, made a ‘Lion of the Falang’ the highest order given to a soldier. He is interviewed on radio and his exploits reported in lurid detail in the Falangan media. He omits to mention in his account the help given him by Luku. The ‘official’ version is that he disarmed one of his torturers and fought his way out from among them, killing several, and made his escape.
Bos Gmbimba and Bishop Ignotus are later found in a separate camp in Kushoto, one where Kina are sheltered. They refuse to give statements and later flee to Gondwanaville, where they are protected by Pres. Zola, who blames the whole war on "outside agitators".
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TIMELINE FOR THE EVENTS IN THE MASTER SCENARIO
Late Nov 2007 -1 to 1 Jan 2008
Increasingly inflammatory government speeches, articles, and broadcasts, culminating in a radio- broadcast call for “extermination” on 1 Jan 2008.
2 Jan 2008
1100 H —Riot
1300H 2 Jan—Shana and Luku flee to St. Josephine Bakhita Church
1500H 2 Jan Shana and other women driven to Kina quarter and put into a brothel.
1600H 2 Jan Shana dishonoured.
1800H—Counterattack by NXA and FPLA. Luku taken away by NXA.
3 Jan 2008.
0700H—Rakibu attack Lachryma.
0900H—Rakibu drive citizens into City Hall
1200H—Luku, now in NXA, joins counterattack against Rakibu.
1400H—Luku tortures and executes prisoners, except Erasto.
1600H—Falangan Army arrives at Lachryma.
1700H—Shana’s brothel is hit by mortar fire and she escapes.
6 Jan 2008
Shana arrives at UNHCR camp in Kushoto and is eventually reunited with a demobilized Luku.
4 June 2008
UN peacekeepers arrive. Fighting ceases.
INVESTIGATION OF WAR TIME SEXUAL VIOLENCE COURSE INSTRUCTIONS FOR INTERPRETERS
A copy of all documents relating to the Master Scenario has been provided to the role players, so that they can learn the scenario and make the exercise as realistic as possible. The role players have also been provided with further information on “What Shana, Miriam, Luku and Erasto knows”. Although you do not need to learn the scenario, attached is a copy of the Master Scenario overview, so that you have an understanding of the interview that is to be conducted.
Your role is to interpret for the interview, so that a formal witness statement can be taken from the witness. This is a learning exercise and the aim is to make it as realistic as possible. It should test the interviewing skills of the students but not make it unrealistically difficult for them to get the information.
In the room will be: Two or three students (who will swap roles as interviewer half way through) The witness (role player) An interpreter (you) An assessor At the end of the exercise, the assessor will give constructive feedback to the students on their interview. The witness will be asked for their comments at the end of the interview. It would also be good if you could also give your comments on the interview. As the interview is being conducted, please consider: Did you receive sufficient instruction from the investigators prior to the interview? How the interviewers conducted the interview generally. Did the interviewer demonstrate an awareness of cultural considerations? How clearly were the questions asked? Were there attempts to clarify anything that was confusing or ambiguous? What worked and what did not work?
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Any questions/phrases that were difficult to interpret? Comments on body language or non-verbal communication. Any (constructive) suggestions for improvement or factors that the interviewers should consider when conducting similar interviews in the future?
2
INVESTIGATION OF WAR TIME SEXUAL VIOLENCE COURSE INSTRUCTIONS FOR ROLE PLAYERS
The Scenario is attached. Please start to familiarise yourself with the scenario and we will discuss the practicum in more detail, closer to the day.
This segment of the course is very important because it provides the opportunity for students to demonstrate that they have understood the theoretical aspects of the training they are undergoing – particularly with regard to “witness interviews” and are able to actually apply that theory to an interview situation.
Details and documents attached are as follows: The Master Scenario. **NOTE – please do not show this to students Copies of the relevant symbols, flags etc., relating to the Master Scenario Timeline for events in the Master Scenario “What Shana, Miriam, Luku and Erasto knows” – setting out the information that the witness can provide to the investigators – if asked. Your role is to know the information and to provide that information in answer to questions. Do not volunteer information if you are not asked, but don’t make it unnecessarily hard for the interviewers either. This is a learning exercise and the aim is to make it as realistic as possible. It should test the interviewing skills of the students but not make it unrealistically difficult for them to get the information.
In the room will be: Two or three students (who will swap roles as interviewer half way through) The witness (you) An assessor
At the end of the exercise, the assessor will give constructive feedback to the students on their interview. You will also be asked for your comments and this is an important part of the practicum. As the interview is being conducted, please consider: How the interviewers made you feel?
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If you raised any concerns with the interviewers, how were those concerns addressed and resolved? How clearly was the process explained to you? How fully was the information elicited from you? Were you asked to clarify anything that was confusing or ambiguous? What worked and what did not work? Comments on body language or non-verbal communication. Any (constructive) suggestions for improvement or factors that the interviewers should consider when conducting similar interviews in the future?
2
WHAT MIRIAM DAMALI KNOWS!
Miriam Damali is a journalist for the Interglobal News Service and also the Lachryma Argus-Gossip. She has been a journalist all her adult life, and has covered wars and conflicts in Zix, Dystopia, Falanga, Westland, Sudan and Equalya, among other places.
Miriam has a wide and deep knowledge of the history of the conflict in Falanga. She knows the militias, the political parties, the interest of the states surrounding Falanga, and all the personalities associated with the war. She has knowledge that would assist in proving the existence of an armed conflict and the involvement of the frontier states. She is aware that the conflict is being carried out by organized forces, with command structures and clear lines of responsibility.
In addition to the information contained in CD 6 and also CD 6A there is some further information that she does not volunteer. She is well known to both factions. Prior to the conflict, she regularly dined with President Zola. She has not met him recently as he has gone into hiding.
She also knows the leader of the FPLA well and gets a great thrill out of his company. From time to time he takes her out on operations with his rebels and gives her scoops about upcoming attacks. There are even rumours that there is a much closer relationship – something which she may or may not admit to, depending on how the interview flows.
She did not object too strenuously to being taken away – she had heard rumours that FPLAs militia were involved in rapes and thought this would be a way of getting to the bottom of that story. She always believed that her close relationship with their leader would protect her. She did not expect events to unfold the way they did and is now furious with FPLA.
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What Shana Okese Knows
Shana Okese is the name of the witness/victim in the new Master Scenario being used for this course. Depending on the nature of the conflict, Shana may have knowledge of one or more of the following crimes. This is a brief précis of what Shana Okese knows. 1. Shana knows her little town of Lachryma quite well. She was born and raised there. Although there had not been a lot of violence in the years preceding the current troubles, both her parents were killed in prior episodes of inter-ethnic strife. 2. She therefore also knows many of the leading personalities in Lachryma. Notably, she knows Bos Gmbimba, the local party leader for the Rally for Falanga, currently the government party, and Bishop Ignotus of St. Josephine Bakhita Church, where Shana and her daughter Miriam take refuge against the rampaging Kina Sisi. You will note that she particularly remembered Bsihop Ignotus’ flashing gold and ruby cross. As this object is later discovered at a mass grave site, this is significant. 3. She does not know the Falangan cavalry officer who is present in the church, but when asked she can describe his uniform and shoulder patch (this is the inverted red triangle with the gold sun and two white lightning bolts; it has the same colors as the Falangan flag. See Falangan Army shoulder patch illustration). 4. Shana knows vaguely about the various militias running around. She may not remember the names of the militias, but she knows that each party/tribe has its own. She is quite clear what the Rakibu are, and that they are sponsored by the government, as this is “common knowledge.” She may not know specific Rakibu or Falangan Army members. Similarly, she can recognize that a given individual is in some sort of army, but she would have to be pressed to describe uniforms or shoulder patches to differentiate one unit or army from another. Once asked, she is able to do this, please note. She can also describe her attackers. One of them is Bos Gmbimba himself. Another is Toussaint Magrat, the local butcher and an RF activist. But, as with Sheela Karanova, Shana should be quite reticent about revealing details of the assaults on her. 5. She does not know who owns the house to which she was taken, but she can describe its general location (Avenue of Independence, Palm district, a Kina neighborhood) and appearance. She does not know Florence’s and Francoise’s last names. 6. She does not know if the explosions that destroyed the house in which she was held were artillery, mortar or IEDs 7. She does not have direct knowledge of the beginning of the riots, but she has heard about these events from survivors.
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8. She does have direct knowledge of the shelling of the food distribution center in the square, but she does not know who is responsible. 9. She also witnessed the events at City Hall, and she knows that surrendering combatants and civilians alike were shot down as they escaped the flaming building. She also heard cries of “Kill them all! Death to the vermin!” from the Rakibu and Falangan assailants. 10. She heard the broadcast on Radio Falanga, reproduced in Clue Document No. 4. 11. Luku has told her that the camp commandant at the DP camp is the Kushotan colonel they captured. Because there are people nearby (like this colonel) who she assumes are her enemies, she is particularly reluctant to give details like names, unless she feels that she is safe in doing so. 12. She has no direct knowledge of the events experienced by Luku, after she is taken from St. Josephine Bakhita’s. But she does know about them, because Luku told her. 13. Please note that there are discrepancies between Shana’s and Luku’s statements. For example, Luku’s statement is inconsistent with Shana’s as to the chronology of the women being separated from the men at the church and the massacre at the church. He also thinks Bishop Ignotus (who he calls “the priest”) leaves before both the separation of the Vyumbe and the killing in the church—which isn’t true. These inconsistencies are deliberate and should be preserved. Whatever Shana thinks happened, she adheres to her story, even if told that it does not jibe with her son’s recollection. 14. Shana does not understand the geopolitics of the situation, but she knows there’s oil near Lachryma. 15. She says in her statement that “they” told her to go to a camp in Kushoto, but she does not explain to whom she is referring. “They” are the Falangan Army troops who are outside Lachryma, and who have left a corridor for Vyumbe to escape the town. The Falangan Army is directing all Vyumbe refugees to Kushoto, although Shana does not know the extent of this apparent policy. 16. At the City Hall Shana sees Falangan officers directing the Rakibu, but the investigator will have to press her for details such as “colors,” that is, the badge the Falangan regulars wear. 17. Shana knows that the square is surrounded by buildings, and as far as she could tell before she fled, none of the buildings were hit by shells. (This suggests the use of mortars rather than artillery, and implies possible intent on the part of whoever is doing the shelling.) 18. Shana knows that when she arrived in the square and queued up for food, the Rakibu were at the distribution center harassing the aid workers and the people in the queue. But the Rakibu withdrew just before the shelling started. 19. As Shana, you may or may not wish to withhold the fact that you have “rented” yourself out for sex in the camp to make more money. You may also lie outright about it. As with all the
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interviews and points of information, you (as consummate actors) are free to play it as you see fit.
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THE FOLLOWING INFORMATION IS FOR THE USE OF REVIEWERS / EVALUATORS ONLY
Depending on the nature of the conflict, the witness may have knowledge of one or more of the following crimes:
In legal terms, Shana knows about these legal issues:
1. Rape. The elements of this crime, as codified by the ICC, are: War crime of rape Elements 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
NB: Another crime of which Shana appears to be the victim is: War crime of enforced prostitution Elements 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
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2. Shana is also a witness to the crime of genocide. The elements of this crime as codified by the ICC, are: Genocide Genocide by killing Elements 1. The perpetrator killed one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Genocide by causing serious bodily or mental harm Elements 1. The perpetrator caused serious bodily or mental harm to one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
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What Luku Knows
Luku Okese is a witness in the Master Scenario used teach during the course. Depending on the nature of the conflict, Luku may have knowledge of one or more of the following crimes. The following is a précis of who he is and what he knows.
Luku is the 14-year-old son of Shana Okese, herself a witness/victim of the Falangan conflict. At the beginning of the orchestrated rioting that opens a wider armed conflict, he and his mother flee to St. Josephine Bakhita Church, where Luku witnesses crimes against civilians, and from which his mother is abducted.
After being rescued by members of the Vymbue tribe-based militia, Luku is press-ganged into becoming a child soldier. He takes part in the counter-attack of the Rakibu laying siege to the Lachryma City Hall, where he witnesses the crime of “giving no quarter” when the Rakibu shoot combatants and civilians who are hors de combat.
Luku himself also commits the crime of torture in beating and otherwise mistreating captured prisoners, including his schoolmate Erasto Sentwaki, and helps to summarily execute most of them, thereby also committing the crime of killing persons hors de combat.
In legal terms, and for the purposes of the Practicum, the question is whether Luku is a witness to the crime of giving no quarter. He also has been told by Erasto that the Falangan Army were under orders to kill all enemies regardless of whether they were hors de combat.
THE FOLLOWING INFORMATION IS FOR THE USE OF REVIEWERS / EVALUATORS ONLY Depending on the nature of the conflict, the witness may have knowledge of one or more of the following crimes: War crime of killing or wounding a person hors de combat Elements 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
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War crime of denying quarter Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. War crime of torture Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. War crime of attacking civilians Elements 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civillians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civillians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
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What Erasto Sentwaki Knows
Depending on the nature of the conflict, Erasto may have knowledge of one or more of the following crimes:
Erasto Sentwaki is the private, ( now Corporal and awarded the “Order of the Lion of Falang”) who was assigned to act as driver for Falangan Army Captain Ouida, and who with Ouida is captured by Luku Okese and his NXA comrades at the scene of the Lachryma City Hall. Erasto is beaten and tells Luku and the NXA that the Falangan regulars were ordered to “eliminate” all the enemy, regardless of status. As his superior officer Captain Ouida was directing both him and the Rakibu militia assaulting the City Hall.
Erasto is a victim of torture. But he is also a witness to killing persons hors de combat, and to the crime of denying quarter.
THE FOLLOWING INFORMATION IS FOR THE USE OF REVIEWERS / EVALUATORS ONLY Depending on the nature of the conflict, the witness may have knowledge of one or more of the following crimes:
War crime of killing or wounding a person hors de combat
Elements 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
War crime of denying quarter
Elements 1. The perpetrator declared or ordered that there shall be no survivors.
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2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
War crime of torture
Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
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What Tamasha Lagat Knows
Tamasha Lagat is an eighteen-year-old student at the President Zola Academy for Young Women in Lachryma. On August 18 she was in her classroom when soldiers of the Falangan government burst into the room and shot the lecturer. Tamasha attempted to flee with two other girls, but the soldiers stopped them and threw them into the back of an armored personnel carrier. They drove to a temporary command post (CP), where she and the other girls were raped. They were saved when the FPLA attacked the CP and the paras deployed to fight them.
1. She knows the soldiers were government troops, as she has seen government troops before, and her father served in the Army. She recognized the camouflage pattern of their uniforms.
2. She knows they were probably members of the Comando Regiment, from their red berets.
3. She knows they were led by an officer carrying a pistol with a rank badge on his shoulders, but she doesn’t know what rank he was. This officer shot Mme. Chebet, the teacher.
4. She thinks the vehicle into which she and the others were thrown was a “tank,” but in fact it is an armored personnel carrier. Tamasha’s knowledge of military matters is somewhat scattershot, despite her self-confidence and her father’s service as regimental cook.
5. She knows that the man who raped her first, the ‘big bearded man” had frequented her father’s electronics shop and that her father knows who he is. She has also seen the officer there on occasion. She did not tell Humanity Now! this fact as she is afraid that they will contact her father and that will somehow make it easier for him to come back
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and kill her. For all her bravado, the episode with her father frightened her very much, and she is planning to flee her parents’ home as soon as she can.
6. She has a red beret which she recovered from the courtyard of the CP, providing suggestive physical evidence that the commando regiment was indeed responsible for the assault. She also has an AK that she took from the scene.
7. She knows that both Ula and Jamila, her co-victims are in a UN refugee camp in Kushoto, with their families.
8. She knows that Mugo Kiprop, the leader of the rebel unit that intervened is still in Lachryma and can be found, when not fighting the government, at the Café Most smoking a shisha and drinking coffee.
9. Her animus against the government and the “dictator” is the direct result of the incident. Before that, she had no interest in politics whatsoever.
10. She is motivated entirely by a desire for revenge.
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What Abel Njeri Knows
Abel Njeri is a former Falangan government clerk, aged 22, who was raped by Falangan government troops, who wounded and then arrested him when he fled the riot in front of the military headquarters in Lachryma, the capital.
1. He knows the troops who raped him were government troops, both from their uniforms and the fact that the assault took place in the barracks, following an apparent order to do so by a colonel.
2. He knows that the soldier who initiated the assault was a sergeant. The Humanity Now! Report mentions only a soldier with stripes on his sleeve, but does not say how many stripes there were. There were three, as Njeri knows, indicating that the soldier was a sergeant.
3. He knows he was anally raped by multiple soldiers, both with their own bodies and with rifle barrels, though he withheld that information from Humanity Now! out of an overpowering sense of shame. He was also beaten by the soldiers, who then left him handcuffed to the bunk for about two hours.
4. He knows the senior officer who ordered “Treatment No.3” was a colonel, from the crossed swords and star on his epaulets. (Officers sometimes liaised with the Ministry on defense sites and bases.) The officer was wearing a peaked cap with a bright green band around it. This means he was an intelligence officer, but Njeri does not know that.
5. He knows he was released by the colonel some hours later, after the colonel, belatedly worried about the position he might be in, telephoned the Ministry to confirm his story. The colonel spoke to the Minister of Works himself. The plans for the treatment plant were delivered to the Palace by the colonel personally. The same sergeant who raped him drove Njerii back to his office, an event witnessed by co-workers.
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6. He knows he received medical attention immediately after the incident from an army doctor he thinks was a captain, and the next day from Dr. Rayan, a general practitioner frequented by government employees, who confirmed and treated the damage caused by the rapes and beating.
7. He is afraid that people will think he is a homosexual. He also has mixed feelings about testifying against the regime, as he does not blame President Zola for what happened. 8. He has not told his wife, Raisha, that he was sexually assaulted.
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What Farida Do Knows
Farida Do keeps a small shop in the town of Lachryma, scene of much of the fighting between the Falangan government forces and rebels led by Mugo Kiprop. On 2 January, while in her shop, she was sexually assaulted and raped by men carrying weapons and dressed in a combination of camouflage and civilian garb.
1. She thinks the men were “Wenyeji” a word that means “barbarians” with overtones of “terrorists.” Most people know this group as the Rakibu. These are allegedly mercenaries hired by the Falangan president Jacques Zola to fight the rebels. Do believes the men were Wenyeji by virtue of their clothing and the fact that they carried weapons. She did not mention the distinctive Rakibu emblem they wear on their clothing. She knows that the weapons themselves were somewhat eclectic and improvised, ranging from AKs to hatchets. She knows that at least some of the six men were foreigners, as two were black Africans and others had Kushotan appearance (in her view) and accents.
2. She knows the men looted the shop.
3. She knows the men accused her of being a rebel or rebel sympathizer, suggesting that there was a political component to the assault.
4. She knows they told her to tell her friends what happened, suggesting that spreading terror was one motive in the assault.
5. She knows they called her “vile names”, but did not tell Humanity Now! (who did not ask her) that one of the names was “Zola’s sex toy,” emphasizing the political motive behind the attack.
6. She knows (but again, was not asked) that the man doing most of the talking and threatening was a tall man with an eyepatch who was addressed as “Nahodha” (“captain”) by the others and who had a Kushoto accent.
7. She actually has pro-rebel sympathies (her brother is a member of the NXA) and in fact has supplied them with some goods.
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Interview Guide Interview & the “W” questions 2. ENGAGE AND EXPLAIN • What happened? a. Establish rapport • When? b. Explain interview procedures • Where? c. Explain the ground rules • Why? 3. ACCOUNT CLARIFICATION • by Whom? plus How? Non-evasive - cooperative - Evasive or non-cooperative - Free recall interview Conversation Management Interview Tools a. Free recall version a. Free recall version Questions b. Identify, expand, probe and b. Identify, expand, probe and • Open summarise interviewee topics summarise interviewee topics • Closed c. Identify, expand, probe and c. Identify, expand, probe and • Clarification summarise important summarise important topics interviewer topics • Challenge d. Look for held back information or discrepancies in account PEACE e. Use probing W questions f. Summarise and link topics P - Planning and preparation g. Challenge any inconsistencies E - Engage and explain A - Account clarification and challenge C - Closure 4. CLOSURE E - Evaluation a. Summarise information b. Interviewee opportunity to add or clarify information 1. PLANNING AND PREPARATION c. Explain what happens next a. Interview objectives d. Determine future contact arrangements b. Important topics c. Interviewee profile 5. EVALUATION d. Interview structure a. Information you obtained e. Contingencies for the interviewee reaction b. Further investigation avenues f. Practical arrangements c. Your performance ©Hibis Consulting Pty Limited Exercise 3 Approaches to Witnesses
APPROACHS TO WITNESSES EXERCISE.
• Each of the articles you have been handed bring to light instances of egregious SV crimes that have in the most part gone un-investigated or even un-acknowledged. Suppose that you were tasked to investigate the scenario you have been handed and based on that investigation, build a case for prosecution of: • Direct perpetrators • Indirect perpetrators • Perpetrators under a theory of superior responsibility
• You will be divided into two and three person teams. Each team will be asked to give a brief overview of the scenario to the wider group and then give their recommendations as to how to proceed with an investigation.
APPROACHS TO WITNESSES EXERCISE – SpeciFic QUestions
• How do you think you would go about approaching the individual or individuals mentioned in the article to get their story. • How would you deal with: • the cultural issues outlined, • witness security, • questions of confidentiality. • What support mechanisms do you think would be required? • Would it be necessary to approach the individual at all? • Is there some other way you could achieve your objective? • What other factors do you think you would have to consider? Sexually mauled by mob: young reporter tells of ordeal in Tahrir Square June 28, 2012 - 3:32PM
Terrified in Tahrir Square ... Natasha Smith thought she was going to die.
"Maybe this is how I go, how I die. I've had a good life."
That is what British journalist Natasha Smith thought to herself as a mob of men sexually assaulted her near Tahrir Square in Cairo.
Smith, who is an associate editor in the Middle East for the Fair Observer, wrote about the men who surrounded her with "bared teeth and raging eyes" on a blog, which has been shared around the world.
Egyptians celebrate the victory of Mohammed Morsi in the presidential elections in Tahrir Square on Saturday.
She described walking with two male friends this week when a crowd turned and, in an instant, men began dragging her away.
"Men began to rip off my clothes. I was stripped naked. "Their insatiable appetite to hurt me heightened. These men, hundreds of them, had turned from humans to animals. "Hundreds of men pulled my limbs apart and threw me around."
Smith described crying out for help as other men took her to a tent and tried to protect her by forming a human shield. As the crowd continued to surge, Smith said women came to help her and covered her naked body.
She was given a burqa and and men's clothes to use as a disguise and held hands with a stranger, who protected her by pretending to be her husband and helped her escape.
"I was terrified but I could see it was the only way out, and had to decide to trust him, "He pulled me through the crowds out of the back of the tent”. He told me: “Don't cry. Do not cry. Look normal'. "I was barefoot, dodging broken glass and debris, trawling through mud and dirt. "My inner reserves of strength kicked in, and I stopped crying and just thought 'keep calm and carry on." Smith has since left Cairo, but vowed to return and finish a documentary in the "wonderful country and city that I love".
She also urged others doing similar work around the world to take care. "Don't let bad experiences ruin your life and determine your future.
"One of the worst things two nights ago was that I had never felt so powerless. "I had no control and I was violated. But now I can take control and rebuild my confidence, and learn from my experience.
"Nothing, and nobody, will hold me back. When I'm ready, I'll finish this. The show must go on." Warlord's men commit rape in revenge against Taliban Boston Globe, Feb 24, 2002 By David Filipov, Globe Staff http://www.rawa.org/rape2.htm
BALKH, Afghanistan - In a country where women have long lived in the shadows, rape is an especially potent political weapon. To this, the women of northern Afghanistan can attest - at least those who dare speak publicly.
The ouster of the Taliban by the US-backed Northern Alliance did not stop the use of rape as a way to demoralize and dominate. But what has changed since the fall is the identity of the victims, now mostly Pashtun families and displaced people living in camps, the losers following the defeat of the Pashtun-dominated Taliban.
The crime is perpetrated, say victims and aid workers, by the men who answer to warlord Abdul Rashid Dostum, a Northern Alliance commander whose 3,000-man army, Junbish-e-Millie, now rules much of the country's north.
Most women are too afraid and ashamed to talk about being raped. But, Nazu, a Pashtun mother of 10, was willing to describe what happened to her, and to her girls. It was, she said, a little over a month ago. She had put her children to bed when five heavily armed Junbish soldiers burst into their modest compound in Balkh, 12 miles west of Mazar-e-Sharif.
Over the next eight hours, she said, one soldier held her crippled husband, Jamaludin, at gunpoint as the others took her three oldest girls into the room and raped them repeatedly - first Fatima, 14, then Bibi Aisha, 12, and then Bibi Amena, 10. Then they came for Nazu.
''The soldier pointed a gun at me. He told me I was a Pashtun,'' Nazu, 40, said as she and her daughters crouched against the dusty wall of their home, faces partially hidden behind scarves, their eyes lowered.
''I was afraid. I could not resist. I am a woman, and they had guns. I could not stop them.''
Pashtun leaders and foreign aid workers say the assault on Nazu and her daughters is only one example in a horrifying trend. Pashtuns, an ethnic group that made up the bulk of the Taliban, say Junbish soldiers have committed rape as part of their reprisals against the people they blame for the regime's oppressive rule.
The trouble is that foreign aid agencies depend on the local commanders - Dostum, ethnic Hazara leader Mohammad Mohaqiq, and ethnic Tajik leader Ustad Atta Mohammad - to do their jobs. Borders, roads, warehouses, even the buildings foreign organizations rent, are all under the control of the warlords.
Dostum's security officers routinely harass anyone who appears to be asking too many of the wrong questions. ''Junbish commanders protect their soldiers from us,'' he said.
Threatened and ashamed, victims remain silent
Nazu was also afraid to speak out, and for good reason. The day after the soldiers assaulted her and her daughters, the soldiers came back and told the terror-stricken family that if they repeated this story to anyone, they would die.
''If Junbish soldiers commit a crime, the Junbish is very strong,'' Nubi said as tears welled in his eyes. ''The police cannot do anything. These people are afraid. They think that the Junbish will kill them.''
Jamaludin said he was too ashamed to take his wife and children to the hospital after the assault. ''We aren't feeling very well,'' said Nazu as she nursed her infant girl. ''It is shameful for us to explain.'' The Dark Side of the Popular Uprisings in the Middle East - Sexual violence as a political tool during the Arab Spring - Elizabeth Marcus December 2011
While women have played a vital role in all Middle East countries undergoing political transformations, women’s role in Libya, Egypt, and Yemen has been exceptionally prominent. Yemen is unique largely because the internationally perceived leader of this revolution, Nobel laureate Tawakkul Karman, is a woman. The systematic use of sexual violence by both the state and non-state actors to quell opposition in Egypt and Libya makes these countries distinctive as well.
Women in Libya and Egypt have faced brutal and consistent abuse that sets these cases apart from other regional countries undergoing political change such as Tunisia, Syria, and Bahrain. As a result, Libya, Egypt, and Yemen provide a window into the complicated and challenging circumstances facing women as they seek to participate in the wave of political change currently sweeping the region.
Egypt
On March 9, 2011, just under a month after President Hosni Mubarak’s ouster, protesters returned to Tahrir Square to express frustration with the slow pace of reforms. The Egyptian military broke up the demonstration and arrested demonstrators, including at least 18 women. These women were beaten, charged with prostitution, and forced to submit to ‘‘virginity checks.’’ When confronted, a senior general stated, ‘‘The girls who were detained were not like your daughter or mine. … these were girls who had camped out in tents with male protesters in Tahrir Square.’’ In a patriarchal religious society in which female sexuality is heavily policed, accusations of promiscuity serve to damage the reputations of female protesters.
Sexual violence against female protesters by Egyptian security services reflects a prevailing attitude among judges and police that rape is not a matter of public justice, despite reforms intended to prevent rapists from escaping punishment. Public places where rape victims look for legal remedy, such as courts and police stations, are ‘‘no place for respectable women.’’ By casting protesting women as ‘‘not like your daughter or mine’’ and subjecting them to sexual violence, Egyptian authorities delegitimize these women’s political voices in a social context that does not consider women attempting to access the public-justice system to be ‘‘respectable.’’
The Dark Side of the Popular Uprisings in the Middle East - Sexual violence as a political tool during the Arab Spring - Elizabeth Marcus December 2011
While women have played a vital role in all Middle East countries undergoing political transformations, women’s role in Libya, Egypt, and Yemen has been exceptionally prominent. Yemen is unique largely because the internationally perceived leader of this revolution, Nobel laureate Tawakkul Karman, is a woman. The systematic use of sexual violence by both the state and non-state actors to quell opposition in Egypt and Libya makes these countries distinctive as well.
Women in Libya and Egypt have faced brutal and consistent abuse that sets these cases apart from other regional countries undergoing political change such as Tunisia, Syria, and Bahrain. As a result, Libya, Egypt, and Yemen provide a window into the complicated and challenging circumstances facing women as they seek to participate in the wave of political change currently sweeping the region.
Libya
Rape was used excessively during Moammar Qaddafi’s attempt to remain in power in Libya. The case of Iman Al-Obeidi------a woman who burst into a Tripoli hotel filled with foreign journalists who then told the world she was raped by government authorities------brought the Qaddafi regime’s use of rape as a tool of political repression into the international spotlight.
Throughout Qaddafi’s fight to remain in power, his regime ordered soldiers to go into villages and rape the female adults and children, some as young as 8 years old, in front of family members. Condoms and Viagra were found in pockets of dead Qaddafi soldiers. Children described being forced to watch as their fathers were murdered and their mothers raped. Benghazi journalists reported seeing the ground littered with Viagra after troops had been through. In one case mothers claimed a group of girls were kidnapped, held hostage for four days, and raped, all under government order.
Besides the elements of shame, ostracism, and physical injury, survivors of sexual assault are often burdened with a dependent child as a result of the rape. According to Libyan law, abortion is illegal under the penal code; getting an abortion makes one liable to imprisonment. As a concession to rape victims, if it is determined that the reason behind the act was to preserve the family ‘‘honour,’’ the penalty is halved. If a woman performs her own abortion, the punishment is imprisonment for at least six months. This leaves the woman with virtually no choice but to birth and raise the child. Rhetoric related to women and sexual violence always comes back to ideas of honour, which is held in the highest regard within Islamic societies. Raping a woman strips the woman, her family, and her community of ‘‘honour.’’ Qaddafi understood this dynamic and used it as a tool to prevent women from organizing opposition to their regimes. Bangladesh rape victims say war crimes overlooked
Bijoyta Das 16 September 2011
The Bangladeshi war of independence left thousands of women scarred with memories of gang rapes and violence at the hands of the opposition. Today as the nation celebrates 40 years of independence, these unacknowledged ‘Birangonas’ or brave women await justice as war criminals walk with impunity.
Dhaka: A dust-caked plaque says: 'Laily Begum is a Birangona' - a brave woman, heroine of a national tragedy. A local youth group had presented it to 56-year-old Laily a few years ago. According to Saleha Begum, who has been a victim of rape, very few women are willing to come forward with their stories, fearing mockery and rejection. It is all she has been given in the way of recompense for what she suffered four decades ago and now it hangs loosely, and alone, from a wall in her living room. "I cringe when I hear that word. It means a dishonoured or violated woman," she says, her deep voice taking on an angry edge.
The title Birangona is used to honour the 200,000 women who were raped by the Pakistani Army during the 1971 Bangladesh war of secession. But the name is also synonymous with rape, abortion, suicides and war babies.
There is a festive mood in Bangladesh because of yearlong celebrations marking 40 years of independence, but survivors of the mass rapes of 1971 say a small plaque is not enough when war criminals remain unpunished.
Mass abuse
During the nine months of the war, thousands of women were gang raped and dumped into mass graves, their breasts chopped off. Those abandoned by their families slipped into India. Some killed their babies; others killed themselves.
"After we lost everything, our reputation, children, husband, home, we did not want them to get away with it"
Perpetrators were mainly of two types - members of the Urdu-speaking Bihari community and some Bangladeshi - both supported by the Pakistani Army. They formed armed militia and committed atrocities on pro-liberation forces, according to government investigations and the research of civil society groups.
Those who survived, like Laily Begum and her sister Saleha, live in shame because their rapes left them tainted in the eyes of society and family members have treated their ordeals as taboo topics. Laily was 16 and pregnant when the Khans - as the Pakistani Army was called - kidnapped her. She miscarried and her husband was killed in the war. After months of gang rape, the Himayat Bahini, a freedom fighters group, rescued her. "After we lost everything, our reputation, children, husband, home, we did not want them to get away with it," she says, sitting in her apartment in Dhaka, which she shares with her daughter.
She stayed in the camps of the pro-liberation forces, where she learnt passionate war songs, frenzied chants and how to shoot guns. "There was hatred in our hearts, we were determined to kill the Khans and save the country," she recalls.
War crimes overlooked
But, according to Laily, their contribution remains unacknowledged. "Nobody remembers us. Where is our name in history? Which list? Nobody wants to thank us. Instead we got humiliation, insults, hatred and ostracism," she adds, her face tight, tears trembling in her large brown eyes.
There was no healing or government effort to rehabilitate the rape victims. Laily Begum remarried with much difficulty as many suitors asked for hefty dowries. She and her family were subjected to public humiliation.
A compounding problem is the lack of forensic evidence after such a long time lapse to prove rape charges
Justice long overdue
Saleha Begum says very few women are willing to come forward with their stories, fearing mockery and rejection. "Anyway what is the point of telling? The government did nothing for our rehabilitation or compensation. There is too much pain in my heart. What is the value of my life?" she asks.
Saleha lives with her family in a two-room house in Dhaka, which she shares with 10 people, including paying guests. "Bangladesh became a free nation and I a fallen woman," she says, her face gaunt. Then she breaks into a doleful smile, showing black-strained teeth from years of chewing dried areca nuts wrapped in betel leaves with a dash of lime.
"I lied to my husband that I was a war widow, otherwise no one would marry me" Saleha Begum Stories From Women Democratic Republic of Congo
Honorata's Story
Honorata Kizende’s past is marked by incredible hardship, horrific violence, social isolation, and near death destruction. And yet, it is also an account of survival, strength, and testimony to human strength.
Honorata had been a sex slave and kept in captivity by armed militias in eastern Congo for almost a year. She was repeatedly gang-raped in public. After she escaped, the stigma of rape made her family reject her. Alone and destitute she found refuge in a friend’s house and was raped again when armed men looted the property. This time her daughter had to watch.
Today Honorata Kizende runs a small tie-die business with a group of women who pooled their resources. And she has decided to break the silence. Honorata is advocating for an end to sexual violence and calls on members of her community to restore the rights of women who have gone through rape and stigmatization.
It was in 2002 that the world turned up-side down and Honorata lost the signs of a "true and nice life" that she and her husband had built. She was captured and tortured by the armed militias. She was gang raped, sexually abused, forced to endure unimaginable humilities. Honorata's days blended into one another until the moment another marauding band stormed the camp. In the confusion, she escaped.
With nowhere to go, no food, nothing but the torn cloth she wore, Honorata walked. And walked. And walked. Through the blistering heat and through rain storms, she walked over 150 miles to Bukavu, a village that had become a haven for people fleeing the war. There she found her five children who had survived by the kindness of strangers. Reunited, she began to rebuild their life.
But just as she tried, the war came to her doorstep again. And, again she was raped, beaten and sexually abused. Families that had helped her feared she was cursed. She was left, again, crushed but determined to recover and rebuild.
Lucienne's Story
Lucienne M’Maroyi is a 24-year-old woman who has been separated from her husband since she was raped. She is in the Bwirhonzi group of Walungu, the mother of three daughters, the third of whom resulted from her rapes as a sex slave. She named her baby Luck because the people with whom she was taken in the bush were killed, but she was lucky not to have been killed along with them.
“My husband was on a trip to Bukavu when some Interahamwe broke into the house where I was staying with my sister-in-law at around 9 pm. It was in December 2006. They came with flashlights. I had my baby in my arms. They pulled it away from me and threw it aside. I was alone in the house. They left the kids behind, and they stayed with a neighbor. It was a blessing that they did not rape my daughters—they were so young and small, it would have been the worst tragedy for me. They pulled me and tied my arms behind my back with a rope together with my sister-in-law. They dragged us out and brought us to the home of another family where they collected other people. They also took my brother with us. Soon there were five of us. On the way they shot one elderly woman because she could not walk fast enough.
”When we got to the bush, they pulled me down to rape me in front of my brother. They gave him the flashlight to hold. As he hid his face in shame, they struck him with a gun and pulled him away to kill him.
“When they were about to kill me, one of them said I resembled his sister and that I would become his wife instead. They killed another woman. We were beaten many times. As we were swollen because of the walk and having been beaten, one of the men warmed water and gave it to us so we could massage ourselves. They sent a woman to us with food. Fortunately, to my surprise, it was my sister whom we mourned and thought had died. She had been taken at the time they killed my father. She told me she was ill and that nobody would allow her to get treatment. She was also pregnant.
“My sister-in-law was killed during a dispute between two men who wanted to have her as a wife. They decided to solve the problem by killing her.
“Another woman was impregnated. She tried to abort the baby, but she bled too much and died due to lack of access to medical treatment. I remained alone with my sister. I was also pregnant with this baby, Luck, whom I delivered in October 2007. I spent three months and a half with these people as a sex slave.
“I escaped when my elder sister was in labor and was being sent to the maternity clinic. They asked me to take her there, but took my clothes off so that I would not run away. I wore only pants. On the way, we met a government soldier whose wife gave me clothes to put on. They also made porridge for us. Unfortunately my sister died during her delivery. I kept the baby until its father came and took it to Bukavu.
“When my husband heard I was back, he said he would not remain with the Interahamwe’s wife. He stopped me from coming to his farms. I had to live at my father’s old friend’s place, where I sleep with my children on the floor in their sitting room.
“ Survivors of war rapes in Guatemala: 'We have no voice'
More than 100,000 women were raped in the 36-year Guatemalan civil war. Despite violent retributions, they are now breaking their silence
"When the soldiers found me they grabbed me, took me to the river, and raped me. " Teresa Sic recalls. "On the same day, they raped other women in the village. They burned everything. They tied me up, but I freed myself aided by my five-year-old daughter. I went to seek help. I was hungry and afraid, but nobody would take us in."
Horrific as it sounds, the 58-year-old's story is not a one-off. Between 1960 and 1996 more than 100,000 women were victims of mass rape in the Guatemalan civil war, between CIA- backed rightwing generals and leftwing insurgents, that evetually left 200,000 dead. After General Jose Efraín Ríos Montt grabbed power in a 1982 coup, it reached fresh peaks of brutality.
Many victims, such as Sic, were indigenous Mayans, who were caught in the crossfire, accused of collaborating with the guerrillas or targeted simply because their ethnic group became seen as the enemy. More than a decade ago Spain's national high court, which has a long history of taking on international human rights cases – including pursuing Augusto Pinochet and jailing Argentine military officers involved in death squads – began investigating claims of genocide. Yet Guatemala not only refuses to try or extradite Ríos Montt, despite an international arrest warrant issued in Madrid, but he is now a congressman.
As for the rapes, the state refuses to acknowledge them – leaving the attackers to walk freely through the streets and live in the same villages as their victims. "We want the state to acknowledge the truth. We have no voice, and officially the rapes during the conflict never happened," says Feliciana Macario, one of a group of women who have worked for 20 years to bring the rapes into the public arena. Patricia Yoj, a native Mayan lawyer, says that "even the representative of the National Indemnity Programme that was established to make reparations to victims of the conflict has said that he doesn't believe in the rapes".
But many of the women have refused to be silenced – giving evidence to the genocide trial in 2008, and now, for the first time, their voices will be heard; Spain's national court has agreed to investigate the mass rapes and gender violence as part of the generals' alleged strategy to wipe out a large part of the Mayan population. The investigating magistrate Santiago Pedraz said on Wednesday the rapes appeared to be part of a campaign of terror designed to destroy Mayan society – with soldiers instructed to carry them out.
Campaigning lawyer Almudena Bernabeu, of the US-based Center of Justice and Accountability, says rape, mutilation, sexual slavery and the killing of foetuses were all part of a plan to eliminate the Mayan people. "Gender violence has been used as a weapon to eliminate ethnic groups, and that's genocide," she says. The army and the members of the paramilitary "civil self-defence patrols" tortured the women they didn't kill in order to stigmatise them. Teresa tells how days after she was raped, she was forcibly taken to a military barracks, raped for 15 days by countless soldiers and given bulls' blood and raw meat to eat. "To eliminate all the Mayans is a very difficult task, but if you destroy the women you make sure that the population is reduced and eventually disappears – it's one of the cruellest ways of getting rid of an entire people," says Paloma Soria, a lawyer working for the Women's Link Worldwide NGO, which is backing Bernabeu.
Many of the women also endured being abandoned by their husbands as a result of the rapes. One of them was Maria Castro, now 59, who was with her two children – one just a baby when she was horrifically assaulted. "The soldiers ambushed me. My little girl was with me. She was very frightened and she cried, but the soldier threw me to the ground. I remember there were three of them who raped me, but I don't know how many more because I lost consciousness. When I came to, I saw them pick up their guns and leave hurriedly for some other place. My daughter helped me by carrying her little brother, but she was still crying. She saw everything." When Maria made it home and told her husband, he rejected her, saying that if she had come back alive, it was because she had let the soldiers rape her.
Others have faced horrific retributions from their attackers for their willingness to give evidence. "They point their fingers at us, they insult us, and some of the men who raped us now laugh at us," one victim says. Castro breaks down as she tells how her son was murdered after she travelled to Spain to give evidence.
María Toj, 70, another victim, says the violence hasn't stopped, but she is still determined to speak out. "They tortured me and my son. They burned everything, leaving me with nothing but my dead husband and my pain. I hope our efforts will stop this from ever happening again."
Jacinta Guarcas, 65, lost seven of her eight children in the conflict, when they were forcibly displaced. One was killed by soldiers and the rest starved when they were forced to flee into the mountains after their crops were burnt: "First I buried my one-year-old son since I didn't have enough milk for him because we had nothing to eat."
The effect of the impunity for the rapes and killings can be seen in the deep scars on Guatemalan society. In 2010 alone, 685 women were killed. So far this year there have been 120 cases of rapes, torture and even dismemberment. "This trial will help open a debate about feminicide, because the lack of justice actually contributes to increasing gender violence," says Bernabeu. Only about 1% of these cases go to trial in Guatemala. "There are times when foreign or international courts are the only recourse for victims, since they can get no justice in their own country," she says. "Honor" Murders – Why the Perps Get off Easy by Yotam Feldner Middle East Quarterly December 2000, pp. 41-50
On May 31, 1994, Kifaya Husayn, a 16-year-old Jordanian girl, was lashed to a chair by her 32-year-old brother. He gave her a drink of water and told her to recite an Islamic prayer. Then he slashed her throat. Immediately afterward, he ran out into the street, waving the bloody knife and crying, 'I have killed my sister to cleanse my honour.' Kifaya's crime? She was raped by another brother, a 21-year-old man. Her judge and jury? Her own uncles, who convinced her eldest brother that Kifaya was too much of a disgrace to the family honour to be allowed to live." The murderer was sentenced to fifteen years, but the sentence was subsequently reduced to seven and a half years, an extremely severe penalty by Jordanian standards.
Today, honour killings are prevalent mostly among Muslim populations. This article analyses the social, legal, and religious circumstances of honour-killings in one Muslim state— Jordan—where, according to official Jordanian reports, honour crimes lead to the death of 20–25 women yearly. (The real number is probably much higher, with murders hidden as suicide or accidents; a 1998 State Department report estimates the annual number at about 100.)3 Jordan is of particular interest because of a campaign launched in the summer of 1999 to abolish the reduced penalties for honour crimes, which encountered fierce opposition by conservative forces in the Jordanian parliament. This debate made explicit arguments which are normally kept quiet and has implications for Muslims everywhere, including in the West. The article also includes examples from Egyptian and Palestinian societies.
Two Types of Honor
Understanding the nature of these crimes requires a short review of the notion of honour in traditional Arab society, where a distinction is made between two kinds of honour: sharaf and 'ird.4 Sharaf relates to the honour of a social unit, such as the Arab tribe or family, as well as individuals, and it can fluctuate up or down. A failure by an individual to follow what is defined as adequate moral conduct weakens the social status of the family or tribal unit. On the other hand, the family's sharaf may be increased by model behaviour such as hospitality, generosity, courage in battle, etc. In sum, sharaf translates roughly as the Western concept of "dignity."
In contrast, 'ird relates only to the honour of women and its value can only decrease. It translates roughly as the Western concept of "chastity" or "purity." And as with chastity or purity, exemplary moral behaviour cannot increase a woman's 'ird but misconduct reduces it. In addition, 'ird trumps sharaf: the honour of the Arab family or tribe, the respect accorded it, can be gravely damaged when one of its women's chastity is violated or when her reputation is tainted. Consequently, a violation of a woman's honour requires severe action, as Tarrad Fayiz, a Jordanian tribal leader, explains: "A woman is like an olive tree. When its branch catches woodworm, it has to be chopped off so that society stays clean and pure." Jean Paul was at university in Congo, studying electronic engineering, when his father, a wealthy businessman was accused by the army of aiding the enemy and shot dead. Jean Paul fled in January 2009, only to be abducted by rebels. Along with six other men and six women he was marched to a forest in the Virunga National Park. Later that day, the rebels and their prisoners met up with their cohorts who were camped out in the woods. Small camp fires could be seen here and there between the shadowy ranks of trees. While the women were sent off to prepare food and coffee, 12 armed fighters surrounded the men. From his place on the ground, Jean Paul looked up to see the commander leaning over them.
In his 50s, he was bald, fat and in military uniform. He wore a red bandana around his neck and had strings of leaves tied around his elbows. "You are all spies," the commander said. "I will show you how we punish spies." He pointed to Jean Paul. "Remove your clothes and take a position like a Muslim man." Jean Paul thought he was joking. He shook his head and said: "I cannot do these things." The commander called a rebel over. Jean Paul could see that he was only about nine years old. He was told, "Beat this man and remove this clothes." The boy attacked him with his gun butt. Eventually, Jean Paul begged: "Okay, okay. I will take off my clothes." Once naked, two rebels held him in a kneeling position with his head pushed towards the earth.
At this point, Jean Paul breaks off. The shaking in his lip more pronounced than ever, he lowers his head a little further and says: "I am sorry for the things I am going to say now." The commander put his left hand on the back of his skull and used his right to beat him on the backside "like a horse". Singing a witch doctor song, and with everybody watching, the commander then began. The moment he started, Jean Paul vomited.
Eleven rebels waited in a queue and raped Jean Paul in turn. When he was too exhausted to hold himself up, the next attacker would wrap his arm under Jean Paul's hips and lift him by the stomach. He bled freely: "Many, many, many bleeding," he says, "I could feel it like water." Each of the male prisoners was raped 11 times that night and every night that followed.
On the ninth day, they were looking for firewood when Jean Paul spotted a huge tree with roots that formed a small grotto of shadows. Seizing his moment, he crawled in and watched, trembling, as eth rebel guards searched for him. After five hours of watching their feet as they hunted for him, he listened as they came up with a plan: they would let off a round of gunfire and tell the commander that Jean Paul had been killed. Eventually he emerged, weak from his ordeal and his diet of only two bananas per day during his captivity. Dressed only in his underpants, he crawled through the undergrowth "slowly, slowly, slowly, slowly, like a snake" back into town.
Today, despite his hospital treatment, Jean Paul still bleeds when he walks. Like many victims, the wounds are such that he's supposed to restrict his diet to soft foods such as bananas, which are expensive, and Jean Paul can only afford maize and millet. His brother keeps asking what's wrong with him. "I don't want to tell him," says Jean Paul. "I fear he will say: 'Now, my brother is not a man.'" It is for this reason that both perpetrator and victim enter a conspiracy of silence and why male survivors often find, once their story is discovered, that they lose the support and comfort of those around them. In the patriarchal societies found in many developing countries, gender roles are strictly defined.
"In Africa no man is allowed to be vulnerable," says RLP's gender officer Salome Atim. "You have to be masculine, strong. You should never break down or cry. A man must be a leader and provide for the whole family. When he fails to reach that set standard, society perceives that there is something wrong." Often, she says, wives who discover their husbands have been raped decide to leave them. "They ask me: 'So now how am I going to live with him? As what? Is this still a husband? Is it a wife?' They ask, 'If he can be raped, who is protecting me?' There's one family I have been working closely with in which the husband has been raped twice. When his wife discovered this, she went home, packed her belongings, picked up their child and left. Of course that brought down this man's heart."
From Will Storr Sunday July e17 2011 Th Observer http://www.guardian.co.uk/society/2011/jul/17/the‐rape‐of‐men
RAPES SHAKE MENNONITE COMMUNITY IN BOLIVIA
By Lorena Arroyo
MANITOBA, Bolivia – This Mennonite settlement in eastern Bolivia will not return to the way it was until the tragedy that shook the community is erased from the memory of its residents: over the past two years at least 100 women and girls have been raped by some of their neighbours.
The tranquillity and mutual confidence that characterize the Mennonites was transformed into fear and confusion a week ago when suspicions were confirmed regarding massive sexual violations in the community of about 2,000.
Manitoba is located about 152 kilometres (94 miles) northeast of the city of Santa Cruz.
On June 24, seven men were arrested on charges they drugged and raped at least 100 women and girls. Another Mennonite was arrested and accused of complicity in the deeds by providing sleeping pills to the other accused men which they used to knock out their victims, as well as Viagra and drugs employed by livestock breeders to boost animals’ sex drive.
Recently, many girls were waking up in the morning naked and noticing other strange things, but they did not dare tell their parents, while some women attributed the events to “an act of the devil,” and so two years passed without anyone denouncing the rapes.
“It’s a very distressing act that shames much of the community,” Efe was told by Peter Kenelsen, who demanded justice and is hoping for “the support of the government” in punishing the men responsible for committing the rapes of his family members.
“There is fear and people are strengthening the security in their houses,” said Johan Klassen, another neighbour who admitted that the alleged rapists also entered his house.
“They didn’t respect the ministers – the community’s religious leaders. They also raped their daughters,” said Johan Boldt, while pointing out the cracks in the windows of his house made by the alleged rapists when they broke in to try and sexually attack his wife and their two daughters, ages 13 and 15.
The accused “did not respect anyone,” said the prosecutor charged with the case, Freddy Perez, in remarks to Efe, adding that there are cases in which the arrested men raped their own sisters, a retarded person, many girls and teenagers and even elderly women.
Margaretta, 16, who underwent a forensic medical exam along with her 14-year-old sister, said that on one occasion she heard strange noises in her room when her parents were at a wake in another town and noticed a man under her bed who then ran away.
The girl firmly told of the incident in the Low German dialect that is the only language spoken by the majority of the women in Manitoba, without knowing if she had been raped, since she still does not have the results of the medical tests.
For many of the rape victims, it will be an indelible stain on their lives because the Mennonites must be virgins when they marry and, as they say in the community, the young men will not want to marry anyone who was raped.
Jose Antonio Ramos, the psychologist who is attending to the young women and girls, said that in addition to the moral damage they suffered by being sexually attacked, the girls will suffer due to the “connotations that the event has for the religion and the conservative customs of the community.”
Klassen, who runs a small business in Manitoba, on Monday offered to let his house be used for the medical exams and the psychological analyses that will determine how many women and girls were raped.
Starting early in the morning, carriages pulled by horses and full of women and girls started arriving at his house to undergo the medical tests wearing their traditional long flowered dresses, their straw hats and with their handkerchiefs, white for the single ones and black for those who are married.
Initially, it was preliminarily established that there are about 100 victims, but “there could be many more, up to 300” said a source in the prosecutor’s office, which is extending its investigation to the other nearby Mennonite communities of California, El Cerro and Milan, where there is a total population of about 4,000.
In fact, in the Mennonite settlement of Riva Palacios, 45 kilometres (28 miles) south of Santa Cruz, another man was arrested and accused of raping 24 women using the same technique employed in Manitoba, and prosecutors believe that the crimes are connected. EFE http://www.laht.com/article.asp?ArticleId=338381&CategoryId=14919 Gang-raped Nepali nun likely to be reinstated
Global outrage moves nunnery to revoke claims that rape victim lost her religion Jason Overdorf July 22, 2011 05:09
A 21-year-old Nepali nun whom Buddhist authorities earlier said was unfit to remain a nun after she was gang raped, is now likely to be reinstated, thanks to worldwide outrage, the Times of India reported.
The Nepal Buddhist Federation distanced itself from a statement signed by over a dozen organisations, including one of its own officials: that had said the attack on the woman had made her lose her "sheel," or faith, and invalidated her vows as a nun. It said the official's stand that the nun had become a "flawed vessel" was his personal view and not the official stand of the federation, according to TOI.
The young woman is now recovering in a hospital in Kathmandu.
The nun had left the nunnery about a year ago, reportedly to study in India, her father told the paper. When he spoke with the nunnery authorities after the attack, they were unsupportive, he said. It is not known whether the victim will choose to return to the nunnery or indeed stay on in Nepal at all, TOI said.
According to the paper, Kathmandu doctors initially refused to admit the victim, and on Thursday Nepal's official media, ignoring the norm that a rape victim should not be named, identified her by name in a report. According to her family members, that will make it even more difficult for her to go back to her village, due to the social stigma associated with rape.
Matthew Frazer, an American Buddhist and the founder of a foundation that works on behalf of Buddhists targeted for violence or abuse, has begun campaigning against the censure through Facebook and other social networking sites, the paper said.
"There is a great deal of shock and disbelief at the very idea of such an action by both Buddhists and non-Buddhists in the United States and abroad," TOI quotes Frazer as writing. "Our goal is to block the expulsion of the nun from her nunnery in Pharping (and the Buddhist Order in general). Such an action reflects badly not only on Nepal, but on Buddhists in general to the rest of the world... If such an action is taken, it will set a very perilous precedent that can be used to take similar actions against future victims." http://www.globalpost.com/dispatches/globalpost‐blogs/bric‐yard/gang‐raped‐nepali‐nun‐likely‐be‐ reinstated Justice still eludes Nepal's civil war rape victims
By Sudeshna Sarkar | IANS India Private Limited – Sat, Oct 1, 2011
Kathmandu, Oct 1 (IANS) Five years after a decade of violent Maoist insurgency ended with the former guerrillas now heading the transitional government, hundreds of silent victims who suffered rape and torture at the hands of both the state army and the insurgents are yet to get justice.
Rape still remains a dirty word in Nepal's traditional feudal society where the victim suffers stigma and rejection, causing hundreds of women to remain silent about their suffering. During the 'People's War', the then Royal Nepal Army (RNA) and other security forces were given wide powers to arrest people arbitrarily and torture them in illegal detention, rape being one of the instruments of torture.
Now even as the first victim has come forward to break the silence and seek justice, police are refusing to register her complaint, a leading human rights organisation said.
Seven years ago, Sushila Karki (the name has been changed to protect the survivor's identity) was running a roadside tea stall in Dailekh in the remote midwest when she was arrested by the RNA on the suspicion that her husband was a Maoist. She was accused of helping the guerrillas and withholding information from the authorities about her husband's whereabouts.
According to Advocacy Forum Nepal, a leading human rights organisation in Nepal that has been fighting cases for victims of torture and extrajudicial killings, both by the RNA and the Maoists, Karki says she was raped by four RNA officials. They included the deputy chief of the Bhawani Dal unit that was posted in Dailekh, Jibesh Thapa.
As a result of the savage attack, she had to have her uterus surgically removed and since then has been mentally unbalanced, Advocacy Forum said.
On Friday, with the support of the rights group, Karki finally went to the police in Dailekh to lodge a complaint against Thapa and three other RNA officials, accusing them of gang rape and torture.
However, Advocacy Forum Nepal said police had refused to register the complaint, using as excuse a legal lacuna that has come under the censure of the Supreme Court.
Nepal's traditional laws, which go against rape victims, laid down that a complaint had to be filed within 35 days of the attack or else it would become inadmissible.
Rights activists and lawyers had been challenging the provision, pointing out that the time limit obstructed victims from getting justice, especially in remote areas where legal redress was not easily available.
Five years ago, taking cognizance of the protests, Nepal's apex court said that the time limit went against international conventions and directed Nepal's parliament to rectify the lapse. Advocacy Forum says since the court directive has paved the way for rape victims to come forward with complaints later than the earlier 35 days' time limit, police are obliged to register her complaint and act on it.
However, it is doubtful that Karki would see her rapists being brought to justice.
Security forces tend to stick together to protect perpetrators from within their ranks. There has been a stunning case of policemen raping a woman colleague inside a police station.
The army especially, despite its pledge after the abolition of monarchy that it would follow the orders of the government, refuses to obey the law where war crimes are concerned. Dozens of officials charged with appalling atrocities like mass murders have not been handed over to police.
(Sudeshna Sarkar can be contacted at [email protected]) http://in.news.yahoo.com/justice‐still‐eludes‐nepals‐civil‐war‐rape‐victims‐103520640.html ROHINGAS IN BURMA.
The military’s use of rape to control both eastern and western Burma has been documented for at least fifty years. Despite the longevity of this brutal practice, talk about rape has never been acceptable. Such discussion among Burma’s ethnic women is considered taboo and is usually conducted in hushed tones and with lowered heads. For women to acknowledge that they have been raped is to declare openly that they are “unclean,” and to face possible discrimination at the hands of their family and community members who hold them responsible. For men to acknowledge it is to admit they have been unable to protect their wives, mothers and daughters. For communities to discuss it is to confront the pain, shame, and impotence of people under siege by their own country’s army.
In Shan State, it has been reported that: Following the lack of positive identification, in one case the headman who had made the complaint was beaten unconscious and detained until the family of the rape victim paid 2,000 kyat for his release. In two other cases, the victim herself was imprisoned and up to 20,000 kyat had to be paid for her release. In another case the headman and his deputy were imprisoned until 5,500 kyat could be paid for their release. In three other cases, the complainants were not imprisoned but had to pay fines of up to 30,000 kyat for defaming the military. Female headed‐households are particularly vulnerable to sexual abuses, including rape. Women and teenage girls are also at risk when left alone at home while their husbands forcibly work as sentries or are absent. National Security patrols routinely enter homes at night searching for unlawfully married couples or unregistered guests. Girls have also been raped while collecting firewood.
Amongst the refugees interviewed in Bangladesh, one woman recounted how she was raped during sentry duty. The woman reported that her husband had fled the country and that National Security started to harass her soon after. She indicated that two years after her husband left the country National Security told her she would have to now fulfil her husband’s security duties. She worked as a sentry eight times. The second time, she was taken to do forced labour in the evening while she was doing household work and cooking food for her young child. National Security came to the house and kicked the front door, and she had to go to the National Security shed with her young child immediately and without food. During her duty she fell asleep and was woken up by a member of National Security. He told her ‘your husband is not here, I will stay with you. I want to live with you.’ She tried to call out for help but there was no one around. The National Security member raped her in front of her young child. The refugee concluded her testimony by saying: ‘We feel peace here [in Bangladesh]. There is no food and some problems, but there is no rape, we have peace.’
Crimes against Humanity in Western Burma: The Situation of the Rohingyas – Report of the Irish Centre for Human Rights. 2010 South Africa's lesbians fear 'corrective rape' By Pumza Fihlani BBC News, Cape Town
Noxolo Nkosana says she was attacked because she is lesbian. Lesbian South Africans are living in fear as rape and murder become a daily threat in the townships they call home. Noxolo Nkosana, 23, is the latest victim of a series of violent attacks against lesbians. She was stabbed a stone's throw from her home in Crossroads township, Cape Town, as she returned from work one evening with her girlfriend. The two men - one of whom lives in her community - started yelling insults.
"They were walking behind us. They just started swearing at me screaming: 'Hey you lesbian, you tomboy, we'll show you,'" Ms Nkosana tells the BBC. Before she knew it a sharp knife had entered her back - two fast jabs, then she was on the ground. Half conscious, she felt the knife sink into her skin twice more. "I was sure that they were going to kill me," she says.
Dying in silence.
Many lesbians have died in such attacks - 31 in the last 10 years, it is reported.
“It is a warped sense of entitlement and a need to protect their manhood”
Lesego Tlhwale Behind the Mask
In April, Noxolo Nogwaza was raped by eight men and murdered in KwaThema township near Johannesburg. The 24-year-old's face and head were disfigured by stoning, and she was stabbed several times with broken glass.
The attack on her is thought to have begun as a case of what is known as "corrective rape", in which men rape lesbians in what they see as an attempt to "correct" their sexual orientation. The practice appears to be on the increase in South Africa. More than 10 lesbians per week are raped or gang-raped in Cape Town alone, according to Luleki Sizwe, a charity which helps women who have been raped in the Western Cape. Many of the cases are not reported because the victims are afraid that the police will laugh at them, or that their attackers will come after them, says Ndumie Funda, founder of Luleki Sizwe.
“When someone is a lesbian, it's like saying to us men that we are not good enough”
Thulani Bhengu, "Many of them just suffer in silence," she says. "The cases people read about in the media are not even the tip of the iceberg. Lesbians are under attack in South Africa's townships every day."
Reports of police ridiculing rape victims abound in the gay community. "Some policemen in the township mock you saying: 'How can you be raped by a man if you are not attracted to them?' They ask you to explain how the rape felt. It is humiliating," says Thando Sibiya, a lesbian from Soweto. She says she knows two people who reported rapes but then dropped their cases because of their treatment by the police.
'Un-African' Some trace the root of the problem to pockets of traditional African society that have not accepted homosexuality - especially among women. "African societies are still very patriarchal. Women are taught that they should marry men, anything outside of that is viewed as wrong," says Lesego Tlhwale from African gay rights group Behind the Mask.
"It is seen as un-African for two women to marry. Some men are threatened by this and then want to 'fix' it," she adds.
The Eudy Simelane case
The practice of "corrective rape" made world headlines in 2008 when Eudy Simelane, a former South African international women's footballer was gang-raped, beaten and stabbed 25 times in the face, chest and legs in KwaThema township. One of four alleged attackers pleaded guilty to rape and murder and was sentenced to 32 years in jail. Another pleaded not guilty, but was convicted and given a life sentence. Two others were acquitted.
She notes that the women who have been killed in South Africa so far have been described as "butch lesbians" - a slang term used to describe lesbians with a masculine or manly appearance.
"They are threatened by these kinds of lesbians in particular. They say they are stealing their girlfriends. It is a warped sense of entitlement and a need to protect their manhood."
South Africa is the only African country to have legalised homosexual marriage, and one of only 10 in the world. The constitution specifically forbids discrimination on the grounds of sexual orientation.
But on the ground, prejudice remains common. On the streets of Johannesburg, it is easy to find men who support the idea of "corrective rape"."When someone is a lesbian, it's like saying to us men that we are not good enough," Thulani Bhengu, 35, tells the BBC.
Very few cases of rape against lesbians have ever resulted in convictions.
No-one knows how many of the more than 50,000 cases of rape reported in South Africa each year are committed against gay women, because the victim's sexual orientation is not recorded. http://www.bbc.co.uk/news/world-africa-13908662 THE RAPE OF MEN
Sexual violence is one of the most horrific weapons of war, an instrument of terror used against women. Yet huge numbers of men are also victims. In this harrowing report, Will Storr travels to Uganda to meet traumatised survivors, and reveals how male rape is endemic in many of the world's conflicts
Will Storr Sunday July 17 2011 The Observer
http://www.guardian.co.uk/society/2011/jul/17/the‐rape‐of‐men
Of all the secrets of war, there is one that is so well kept that it exists mostly as a rumour. It is usually denied by the perpetrator and his victim. Governments, aid agencies and human rights defenders at the UN barely acknowledge its possibility. Yet every now and then someone gathers the courage to tell of it. This is just what happened on an ordinary afternoon in the office of a kind and careful counsellor in Kampala, Uganda. For four years Eunice Owiny had been employed by Makerere University's Refugee Law Project (RLP) to help displaced people from all over Africa work through their traumas. This particular case, though, was a puzzle. A female client was having marital difficulties. "My husband can't have sex," she complained. "He feels very bad about this. I'm sure there's something he's keeping from me."
Owiny invited the husband in. For a while they got nowhere. Then Owiny asked the wife to leave. The man then murmured cryptically: "It happened to me." Owiny frowned. He reached into his pocket and pulled out an old sanitary pad. "Mama Eunice," he said. "I am in pain. I have to use this."
Laying the pus‐covered pad on the desk in front of him, he gave up his secret. During his escape from the civil war in neighbouring Congo, he had been separated from his wife and taken by rebels. His captors raped him, three times a day, every day for three years. And he wasn't the only one. He watched as man after man was taken and raped. The wounds of one were so grievous that he died in the cell in front of him.
"That was hard for me to take," Owiny tells me today. "There are certain things you just don't believe can happen to a man, you get me? But I know now that sexual violence against men is a huge problem. Everybody has heard the women's stories. But nobody has heard the men's."
"In Africa no man is allowed to be vulnerable," says RLP's gender officer Salome Atim. "You have to be masculine, strong. You should never break down or cry. A man must be a leader and provide for the whole family. When he fails to reach that set standard, society perceives that there is something wrong." Often, she says, wives who discover their husbands have been raped decide to leave them. "They ask me: 'So now how am I going to live with him? As what? Is this still a husband? Is it a wife?' They ask, 'If he can be raped, who is protecting me?' There's one family I have been working closely with in which the husband has been raped twice. When his wife discovered this, she went home, packed her belongings, picked up their child and left. Of course that brought down this man's heart."
Later on I speak with Dr Angella Ntinda, who treats referrals from the RLP. She tells me: "Eight out of 10 patients from RLP will be talking about some sort of sexual abuse."
"Eight out of 10 men?" I clarify. "No. Men and women," she says.
"What about men?"
"I think all the men."
I am aghast. "All of them?" I say. "Yes," she says. "All the men."
"In a nutshell, that's exactly what happens," Dolan agrees. "Part of the activism around women's rights is: 'Let's prove that women are as good as men.' But the other side is you should look at the fact that men can be weak and vulnerable."
As I leave Uganda, there's a detail of a story that I can't forget. Before receiving help from the RLP, one man went to see his local doctor. He told him he had been raped four times, that he was injured and depressed and his wife had threatened to leave him. The doctor gave him a Panadol.