The potential for being stuck in a process for years

Rogers points out additionally that Bosnia and Herzegovina has so far prosecuted more cases of sexual violence than any other country in the world.

“There is a lot of experience here, but more must be done,” says Rogers in an interview for BIRN Justice Report.

Rogers, who is a member of the expert team of the Global Initiative for Preventing Sexual Violence, was in Sarajevo to promote the international Protocol on Research and Documentation of Sexual Violence in Conflicts.

How will this Protocol contribute to the punishment and prevention of sexual violence if we bear in mind that it is already defined as a criminal act in law?

The Protocol seeks to set up the standard for researching and documenting crimes of sexual violence. It includes the institutional aspect of the trauma and the ways in which investigators can deal with specific aspects of interviewing witnesses and thus protect them from re-traumatization.

The idea is to allow investigators in the event of future conflicts, to collect evidence in a timely manner and in a way in which they can be used in the courtrooms. We concluded that there were previously several problems. First, investigators did not collect the evidence in a way that they could be used in courtroom. They did not respect the procedures.

We have also seen that some investigators do not appreciate the complexity of the cases of sexual violence and do not understand how trauma is stored in the memory of the victim. Therefore, there is a re-traumatization of the victim. The idea of the Protocol is to set a standard that immediately after the conflict, or in subsequent years, evidence can be collected and stored in a way that if and when the trial starts, the evidence is available to prosecutors.

What are your conclusions when it comes to prosecuting these crimes in Bosnia and Herzegovina?

The crimes of sexual violence are among the most difficult to process for every legal system. Generally speaking, the courts have betrayed the victims of wartime sexual violence, both in terms of the number of prosecuted cases, but also in the manner in which these proceedings were conducted.

The main problem in Bosnia and Herzegovina is that these crimes were not reported. It is estimated that there were 20,000 cases of sexual violence during the war, and only 70 verdicts. In conversations with survivors, representatives of civil society and the judiciary, we concluded that the victims do not report the crimes because they are hiding such events from the family and do not want to expose them to all this after all these years that have passed. They have pressure from male members of the family to not to go out and disgrace the families.

Also, they had bad first experiences with investigators. Some are re-traumatized, or did not have confidence in the police or prosecutors regarding this type of information. We saw that they had heard that there are big delays in the proceedings. They want this to be finished and to close that chapter and not to be stuck in court or in investigation for years on end. So, this is a major problem in Bosnia and Herzegovina, the lack of confidence in the legal system. If the legal system had better relationships with survivors and victims, if it could convince them that their cases would be led seriously, quickly and efficiently, more survivors would begin to report the cases. 

Why is it difficult to work on cases of sexual violence?

The crimes of sexual violence, more than any other, affect not only the individual, but also the family and the community. It is very difficult to encourage survivors to report crimes and to tell their story. One of the problems is that these crimes are rarely reported, and the other is in a different way in which trauma is stored in the brain.

Survivors sometimes have problems to recall events in a way that is appropriate to prosecutors. Sometimes they have a selective memory. They can remember feeling, smell or colour, but they cannot remember the time, the date or flow of events. This had effects on problems in the past, because it was not understood how trauma is stored in the brain and how it can effect the questioning and the testimony of the victim.

So, the problem is the way in which trauma is stored in the brain and how effects the way of how the survivor answers questions and provides testimony in the courtroom. The combination of these psychosocial aspects has long been a particular challenge for both police officers and prosecutors.

Should the policy of punishment be changed? Would greater punishments effectively prevent such crimes?

Historically, crimes of sexual violence were not seriously prosecuted as other crimes were. A hundred years ago, these crimes were a sort of a prize for the winning side. Even in the Second World War there have been numerous crimes of sexual nature that were not processed. When we speak of the modern era, we must ensure that courts, police investigators and military commanders understand this type of crime as seriously as murders, torture or shootings.

One way to do this is to ensure that convictions for these crimes reflect the level of suffering of the victims. I think this is something that is already accepted in the international courts, where the crimes of a sexual nature are punished very rigorously. I am not sure if this is the case in Bosnia and Herzegovina, but I hope it is. If not, then the policy of punishment must be revised.

In addition to the courts, do you think that politicians and military commanders should do something special in order to prevent sexual violence in conflicts?

Absolutely. In most wars, political and military leaders are the cause of the problem. Political leaders and their military colleagues should organize the rigorous training of soldiers, to tell them that sexual violence will not be tolerated, that each individual will be investigated during the war and prosecuted after it ends. It is absolutely essential that military commanders have very strict discipline in their troops. In many countries, we see that military commanders encouraged sexual violence as a way to terrorise the enemy, and that is the opposite of what they should be doing.

What are your impressions from the training sessions you held with judges and prosecutors in Bosnia and Herzegovina?

They have been very appreciative of the extra knowledge we transferred to them about the effects of trauma on victims. Traumatized victims store memories in a completely different way. You need different tools to access those memories. It is like having two houses.

One has evidence about a crime where the victim is not traumatized and you need a way to that home, but you also have a different house, which has evidence about traumatized victims and you can reach it through a different road. In the training we tried to show judges, prosecutors and witness support officers the tools to extract the best evidence in a way which does not re-traumatize the victims.

Talking to them, they said that they wish they had this information and knowledge ten years ago, because it would have been very helpful in their investigations.

Prosecutors have seen that it is very difficult to interview victims of sexual violence, because they react in a different way to other victims. This is not easy to understand as a lawyer. You must have knowledge about psychology to supplement the knowledge and skills of lawyers. This is the basis of the training, to connect these disciplines. This is especially important in wartime sexual violence cases, because often we don’t have any additional evidence.

Because of the nature of these crimes, you often have just a victim and a perpetrator, no other evidence. Because of the nature of conflicts, you often don’t have documentary evidence, since victims do not have access to doctors during wartime, so they can’t get a medical report, sometimes it can be dangerous. The judges and prosecutors were very dedicated to the training.

How will this training continue?

We have trained a group and now they can train their colleagues. I am certain that they will implement training courses which will be of assistance to their colleagues. This type of knowledge is not something which people in the world know and Bosnia and Herzegovina doesn’t. I have been working in several countries internationally for the past 14 years and I was not trained on the effects of trauma and how to consider trauma when researching it. Even prosecutions at the international level often lack this type of knowledge.

If you go to the police in Great Britain and United States of America, they also don’t have this knowledge. Judges and prosecutors received this training; they will share these skills and this knowledge in investigating sexual violence. I think they see this and they want to promote these skills.