The challenges of testifying
“ It is very difficult for me to say what I had lived through … although I have to say it now, I find it very hard. I can't forget, ever forget what happened to me or my child, for as long as I live, but it's painful for me to speak about it…”
“ For many of the victims who came to testify about rape and sexual violence, the experience was daunting - leading to their reliving of the events and causing much distress. ”
Witness 51 testified with her identity protected in the Kunarac et al. case about the suffering she and her daughter endured while they were sexually enslaved in Foča. Her story was one of more than 60 victims of sexual violence who came to testify in the Tribunal’s courtrooms.
For many of the victims who came to testify about rape and sexual violence, the experience was daunting - leading to their reliving of the events and causing much distress. Still, one after another, victims chose to face their rapists and speak out in court.
”If something had happened to any person, the kind of thing that happened to me, everyone would want to say the truth and to say exactly what happened, the way it was,” Witness 51 explained at the trial of Kunarac et al..
Testimonies of victims are essential for the prosecution of crimes of sexual violence as forensic evidence will often have disappeared by the time of trial. Unless such evidence was recorded immediately following the crime, and such records made available to the courts, witness testimony is crucial for the facts about what happened to be established.
Victims of sexual violence face various social, psychological and sometimes even physical impediments to coming forward and testifying. Some of the potential witnesses feel that their security may be jeopardised should they come to testify. In addition, identifying oneself as a victim of sexual violence may lead to stigmatisation within one’s society, making return to normal life even more difficult.
“ Nobody wanted to hear my story because they knew (…). My first husband did not want to hear me tell what had happened to me, because he knew… ”
Many witnesses, victims of sexual violence, who testified at the Tribunal were granted certain protective measures and their identity was withheld from the public. But the small communities they come from are often aware of the ordeal they survived during the war even before their testimony. The burden of overcoming the social stigma is still theirs to carry, before and after the trial. Through their testimonies, these witnesses have contributed to breaking the silence that often surrounds these crimes.
During the Kunarac et al. trial, Witness 48 explained: “Nobody wanted to hear my story because they knew. They knew what had happened. They knew what was going on. My first husband did not want to hear me tell what had happened to me, because he knew from day one what had happened to me as soon as the Serbian army had took us off…”
Testifying about agonising events puts the witness under stress and can cause retraumatisation as it requires the victim to remember the event, to talk about it in front of strangers and, in a sense, live through it again. This can trigger diverse emotional and physical symptoms.. Witnesses have often reported the return of the fear they felt at the time of the crime, the feeling of loss of control over their lives, as well as physical reactions such as pain, before their testimonies. The Victims and Witnesses Section (VWS) plays an important role in assisting victims to overcome these reactions and to empower them to regain control in a foreign environment.
“ The VWS has developed a groundbreaking model in the international legal environment for the provision of 24/7 practical and psycho-social support to witnesses before, during and after their testimony. ”
For Witness Support Officer Helena Vranov-Schoorl, “The VWS has developed a groundbreaking model in the international legal environment for the provision of 24/7 practical and psycho-social support to witnesses before, during and after their testimony”.
The experience of the VWS shows that the majority of victims overcome their initial fear and eventually testify. After years of trying to come to terms with what they lived through, they can even come face to face with the very persons who sexually assaulted them. Even though the Rules of Procedure and Evidence provide for possibility that witnesses give their testimony from adjacent room via video-link, the vast majority of witnesses opted to face their tormenters and identified them as those who committed the crime. But, the trauma of being in the courtroom under such circumstances is not so easily subdued.
“I think that I'm once again at a point where I find it difficult to explain. I think that I have decided to try and leave many of those things behind me somewhere, although within me, I still have and there will always be traces of everything that happened to me. I think that for the whole of my life, all my life I will have thoughts of that and feel the pain that I felt then and still feel. That will never go away.”(Witness 087, Kunarac et al)
Despite the trauma, and despite all the factors contributing to their unease, witness after witness chose to relate their stories in court. For some, the urge to tell what happened was strong enough to motivate them both during and after the war, through the difficult process of having to live with the psychological and physical consequences of the torture they were exposed to.
Witness 087 from the Kunarac et al. case stated “I simply cannot think about these things because I was exposed to so much torture. But I'm proud to be here. Let the world know what they did.”
“ For some, I’ve had letters, even from their medical practitioners saying it was a ‘groundbreaking moment in their life’ and that their psychological and physical health has improved with their testimony. ”
All witnesses are under oath for the duration of their testimony and may not have contact with either the Prosecution or the defence. The only contact during the pause or between two days of testifying is with the VWS staff. These contacts are essential to help the witness cope with the fear and emotions s/he feels during the testimony. One of the ways to accomplish this is to attempt to bring the witness back to present, to normalise the situation, in other words, to interrupt the cycle of memories that could trigger a secondary trauma.
After the testimony many witnesses feel an incredible sense of relief. As Wendy Lobwein, former Witness Support Officer explained, “They have done what they really believed they couldn’t do. And what we’ve been able to learn as we follow them up is that some keep that feeling of strength. For some, I’ve had letters, even from their medical practitioners saying it was a ‘groundbreaking moment in their life’ and that their psychological and physical health has improved with their testimony.”
Unfortunately, the testimony fails to provide relief for some of the victims. While the Tribunal has no means to provide continuous post-testimony support to all the witnesses, its VWS section has created a network of healthcare and welfare professionals in the countries of the former Yugoslavia who are able to do just that. In addition, the VWS has engaged in the capacity building of and transfer of knowledge to its counterparts in the region in a drive to empower the local judiciaries to provide a witness-friendly environment in the courtroom, which is particularly important for victims of sexual violence.