ICTY and the Murad Code: International Experience in Working with Victims of Sexual Violence in Wartime. Joint column by Anna Adamska-Gallant and Olha Sribniak for LB.ua

20.06.2023 |

Sexual violence is a terrible and destructive weapon. It is deliberately used in military conflicts to assert power. Like other war crimes, according to international humanitarian law, it has no statute of limitations.

Why does the aggressor use sexual violence during the conflict? In order to intimidate the population, create an atmosphere of fear and helplessness, demoralize the opponent, demonstrate their dominance over individuals and entire communities.

As a result, in addition to trauma and disfigurement, it has long-term psychological, emotional, and social consequences for victims and witnesses, and all those around them.

The Ukrainian justice system is learning to work with this special category of crimes right amidst the war. Since the beginning of the full-scale invasion, 175 sexual violence crimes committed by the invaders have already been recorded. However, one can be sure that the real number of such crimes is much higher. Many victims do not disclose information about what happened to them due to fear, stigma, feeling of guilt, unwillingness to trust law enforcement bodies, and recall all the details.

Therefore, everyone who is involved in such cases – investigators, prosecutors, judges, lawyers, representatives of civil society – shall be trained to treat ethically victims and witnesses.

Fair verdicts in conflict-related sexual violence (CRSV) cases are very important not only to the victims and our society, but also to the international community. After all, bringing criminals to personal criminal responsibility is necessary to prevent such crimes in the future, to ensure compensation and justice for the victims.

Ukraine should, on the one hand, make maximum use of international best practices in this area and, on the other hand, develop them.

The International Tribunal for the former Yugoslavia and the International Tribunal for Rwanda were once the first courts to convict rape as a war crime and a crime against humanity. At the time, it marked a milestone in the development of international humanitarian law.

Ukraine should raise this bar, as it suffers from military aggression, which is often called the most thoroughly documented conflict in human history. It is very important to demonstrate the inevitability and severity of punishment for the use of sexual violence as a weapon.

What are the challenges?

Victims are reluctant to contact law enforcement agencies. They feel depressed; are afraid of a negative impact on their families, stigmatization in the family or community. The victims are often not sufficiently familiar with the stages of investigation and support measures that are available; they do not trust the justice system. At the same time, it is quite difficult to collect evidence properly. After all, access to crime scenes may be complicated due to hostilities, or the remoteness of events.

At the same time, the national legislation is lacking special mechanisms for the protection and support of CRSV victims and witnesses. The Law “On Ensuring the Safety of Persons Participating in Criminal Proceedings” is currently in force. However, it covers mostly protection of witnesses from assault outside the courtroom and does not provide for measures which are important for CRSV cases. They help to avoid the disclosure a victim’s or witness’s identity. These are, for example, closed court sessions or interviewing a witness using technical means while he/she stays in different premises etc.

Another unsolved problem is the need to interview a witness several times during the pre-trial and trial stages. At the same time, each detailed reproduction of events brings about the risk of repeated trauma and may worsen his/her mental state. Therefore, it is advisable to allow using the transcripts of testimony in court if there are reasonable grounds for doing so. In addition, it is important to empower vulnerable witnesses through letting them be accompanied by a proxy of their choice.

In this context, it is very helpful that the Office of the Prosecutor General has approved the Strategy for ensuring a victim- and witness-oriented approach in CRSV cases. It should help develop a system of decisions aimed at supporting and protecting victims in this category of cases at the pre-trial stage.

Considering the scale of the challenges, the initiative of individual institutions working with CRSV victims and witnesses is very much appreciated. For example, some Ukrainian courts have been developing support services for vulnerable court users, building on the experience of other countries. Such services provide comprehensive support to vulnerable persons during their stay in court, including victims of sexual crimes committed in wartime.

International Criminal Tribunal for the former Yugoslavia (ICTY)

In the Yugoslav wars, sexual violence was systematic and targeted. According to UN estimates, between 20,000 and 50,000 women and girls were raped during the 1992-1995 war in Bosnia and Herzegovina. In the Kosovo war, at least 20,000 people became victims of rape and other forms of sexual violence.

The tribunal was of historical significance in prosecuting perpetrators who committed sexual violence crimes in wartime. The ICTY became the first international court to convict for rape as a form of torture, and the first tribunal in Europe to convict for rape and sexual slavery as a war crime and a crime against humanity.

The tribunal supported and protected witnesses who testified about sexual abuse, facilitating victims to provide important evidence. It helped break the culture of silence about sex crimes that led to impunity. In particular, the ICTY created a Section for Victims and Witnesses, which provided them with assistance, including psychological aid. Special rules and procedures facilitated victims of sexual violence to testify without fear for their safety, and the forms of interviewing helped reducing the risk of re-traumatization.

For example, victims and witnesses could testify using pseudonyms, with their faces hidden and their voices altered on camera or in a closed session. If necessary, a confidential and safe place for interviewing has been provided. If the person had already testified, it was possible to obtain copies of the interview protocols, instead of holding a new one. Attention was also paid to gender balance and the presence of women among prosecutors and judges.

International Protocol on the Documentation and Investigation of Sexual Violence in Conflict

The International Protocol on the Documentation and Investigation of Sexual Violence in Conflict has become an important tool for fair and effective justice for crimes related to sexual violence in wartime.

It outlines the basic principles of documenting sexual violence as one of the forms of grave violations of international humanitarian law. The document is used by lawyers, law enforcement officers, medical professionals, and non-governmental organizations when gathering evidence to investigate these heinous crimes in various countries.

The main principles of the Protocol are: do not harm; respect the autonomy of a person; obtain informed consent; and maintain confidentiality.

Its recommendations say that it is important to remember that the victim shall already be deemed as a hero based only on the fact that he/she accepted to testify (taking into account existing stereotypes, stigmatization, etc.). Therefore, one needs to allocate enough time to listen carefully to the person, and remain understanding if he/she decides not to take part in the proceedings.

When talking to a victim, it is important not to cast doubt on the veracity of the testimony, not to blame him/her for what happened, etc.

*How the Murad Code may help working with victims of sexual violence in wartime

There is another important document that would be useful to anyone who collects and uses information on sexual violence in conflict. This is the so-called Murad Code.

It was initiated by Nadia Murad, Iraqi human rights defender of Yazidi origin, who was caught in sexual slavery and tortured. After being released, Nadia Murad started fighting against military rape and human trafficking. She has also visited Ukraine recently.

The Murad Code is voluntary and contains minimum standards for the safe collection and use of information obtained from a victim. Therefore, the Code is used by human rights defenders, criminal investigators, and other professionals who collect, search or receive information about sexual violence in wartime.

At the same time, the Code is a living document that is periodically revisited and updated.

The main questions raised by the Code include:

Purpose of the interview. Before initiating a conversation with the affected person, one needs to clearly understand the purpose of the conversation, what information and in what form is really needed and how it will be used.

Benefit of collected information. Some victims are motivated by benefits for their families, communities, or groups.

Weighing benefits against risks Any potential benefit shall be carefully weighed against the existing risk, and the tools to mitigate them shall be developed.

Get prepared in the first place. It is advised to check whether one possesses necessary knowledge, competences, policies, and procedures for communicating with victims. This will help produce ethical and efficient results.

Provide flexibility for victims. Individuals affected by CRSV shall have freedom of choice in terms of who to talk to (age, gender, other affiliation, etc.).

Know the context. Those who interact with victims shall have a good understanding of the context in which the violence occurred, as well as impact on victims, their families, and communities.

Do not ask, unless necessary, about the details of sexual abuse.

Unfortunately, CRSV victims can be severely traumatized for the rest of their lives. However, restoring justice, punishing the guilty, restitution and ethical communication at all stages of justice helps to significantly alleviate traumas. For this, Ukraine must continue working at all levels – from strategic and legislative levels to grassroots initiatives on the ground, in individual courts and law enforcement institutions.

Anna Adamska-Gallant, International Key Expert, Lead of Judiciary Component, EU Project Pravo-Justice

Olha Sribniak, National Key Expert, Judiciary Component, EU Project Pravo-Justice

Text first published in “Livyi Bereh”.