Heather D. Flowe, PhD
Memory evidence – the gateway to justice
For most of us, the conflicts in the former Yugoslavia and the Kosovo War have long receded into the realm of history. What were once current events are now part of law and International Relations syllabi. Yet, for many Kosovans, much is left to be resolved.
To begin with, over 1,000 people remain unaccounted for. Finding and identifying their bodies is the domain of forensic archaeologists. This work, in concert with satellite images that reveal changes in the landscape indicative of a mass burial, relies on the memory of those who were witnesses.
Drawing on the mass rapes and other atrocities that took place in the former Yugoslavia and the Kosovo War as an illustration, in this blog post I will explore how witness memory evidence often is the bedrock of justice—from its use in informing criminal investigations to crime prevention strategies.
This issue matters because so often we hear about how inaccurate witnesses are and how faulty witness evidence contributes to miscarriages of justice. We need to give due consideration to how often witness memory evidence is integral to achieving justice and protecting human rights.
Memory meets justice
In 2016, I visited the Institute for Forensic Medicine (IFM) in Kosovo. I was there with Lisa Smith, a colleague who was setting up training in forensic archaeology for two doctors.
They were to become the only two people in the country who could identify the missing and dead once the EULEX Kosovo European Rule of Law Mission came to its scheduled close.
We seemed to be the only ones at the facility. The long corridors and large rooms were empty and dimly lit. Our host was Esma Alicehajic, a forensic archaeologist for EULEX, whose job it was to identify and exhume mass graves.
We saw the place where the remains of over a thousand people are kept, still waiting to be identified (predominantly by DNA analysis). We learned some of these cases would never be closed because the families will not accept that their loved one have passed. We also learned that across the whole country that year, fewer than 100 rapes had been reported to the police.
On the one had, perhaps rape is underreported because the country has relatively few resources compared to countries such as the UK or the US. For example, IFM was the only place at the time,where autopsies were being performed in a country of 2 million people. On the other hand, perhaps victims are reluctant to report rape and officials are reluctant to prosecute (e.g., virginity testing is common in Kosovo).
On the wall of Esma’s office was a picture of a digger dwarfed by the barren hillside that surrounded it. Esma explained that it was the site of a recent excavation – more than twenty years after it had been used for murders and mass burials. They had zeroed in on the site because of present day eyewitness accounts identifying the location.
The process of giving testimony about these ordeals can go on for decades, without charges ever being brought or reparations paid. Kosovo, and the ongoing efforts of the IFM, is just one example of how memory and justice meet around the world.
Testimony informs what we know about war crimes, truths and reconciliations, and it provides reports of sexual violence, child abuse and intimate partner violence (IPV) within communities. In theory, testimony alone, without corroboration, is sufficient for criminal conviction. But the accuracy of memories of victims and witnesses is often scrutinised and conviction rates, without corroboration (DNA evidence etc), are low.
Memories of War Crimes
In war crime tribunals, where perpetrators are alleged to have raped victims being held captive, issues of consent still hold centre stage (e.g., the accuser led the guard/guards on). Thankfully, a trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) set a precedent that someone held in captivity cannot possibly consent to sex with their captor.
But, that such a landmark ruling was even required shows the challenges that people face when seeking justice.
Memory evidence in war crime tribunals is often challenged because the crime happened long ago and because it was traumatic. Tine and trauma are par for the course in many cases involving sexual violence the world over. In places like Kosovo, cases can take a decade or longer to proceed to trial (and most never get that far) and, of course, the perpetrators use pain, fear and intimidation to inflict suffering. Indeed, the victim’s pain and suffering is a legal requirement set out by the Rome Statute, which is usually met via victim testimony.
Time and trauma are also obstacles to meeting the reasonable doubt threshold in conflict and atrocity-related sexual violence prosecutions. While time and trauma are almost always inevitable, their presence invites the accuracy of witness and victim accounts to be called into question.
Courts everywhere struggle with the relationship between time and memory, particularly in terms of the completeness of testimony.
How should we understand the recall of essential aspects of an event when compared to peripheral aspects? When testifying about crimes that occurred more than a decade ago, should judges adapt their expectations accordingly? If we accept that trauma can impact memory accuracy, what counts as an understandable inconsistency (e.g., misremembering the exact layout of a room)?
You can see this struggle in the transcript of the ICTY trial of Dragoljub Kunarac. Kunarac, along with others, was tried for constant rape, including gang rape, enslavement, and torture (among other charges) of Muslim women and girls who were detained in degrading and inhumane conditions in Bosnia and Herzegovina over many months in 1992.
The purpose of these criminal actions was to extract information and to terrorise. The duration and repeated nature of the ordeals, the fact that there were multiple perpetrators, and the passage of time between the crimes occurring and the trial (in 2001), made it difficult for the victims to remember the exact circumstances - such as dates, times, and the sequence of events. In evaluating the credibility of the witnesses and testimony, trauma was a key issue for the Court:
“the Trial Chamber recognises the difficulties which survivors of such traumatic events have in remembering every particular detail and precise minutiae of these events and does not regard their existence as necessarily destroying the credibility of other evidence as to the essence of events themselves.”
However, these aspects of traumatic memory, noted by the court, also apply in everyday remembering. Memory is adaptive. It would make no sense to remember every moment of our lives in minute detail.
Nevertheless, in these types of cases, trauma and the passage of time typically are used discredit the accuracy of witnesses' and survivors' accounts of atrocities. The testimony is discredited if the memory is insufficiently detailed or if it appears to be inconsistent across interviews (i.e., see Frances Rock's work and research by Becky Milne and Gary Shaw on factors that lead to inconsistent statements that have nothing to do with memory).
Lyotard (1988) captured these tactics aptly in his writing about the victims of the holocaust: “[T]he perfect crime does not consist of killing the victim or the witnesses...but rather in obtaining the silence of the witnesses, the deafness of the judges, and the inconsistency (insanity) of the testimony.”
Memory and its link to other evidence
Statements and testimony in criminal investigations - memory evidence - are more than meets the eye. They are often the gateway to other evidence that enables investigators to solve crimes.
Even if we have a ‘smoking gun’; a recovered weapon, CCTV footage, DNA evidence, or a hillside with mass graves, we still rely on witness testimony to help us make sense of the evidence and to establish identity and intent. Testimony also provides leads where additional evidence, which might exonerate as well as implicate the accused, may be recovered.
As another example, crime linkage, which is the practice of linking crimes to identify serial offenders, analyses victim accounts of the perpetrator’s behaviour. Victim statements regarding the offender’s approach, how control was maintained over the victim, and how the offender left the scene are fundamental to the process of crime linkage.
Not only does memory evidence aid in the quest for justice; it also amplifies the voices and experiences of victims, dispels rape myths and stereotypes, and empowers people who have been marginalised and dehumanised.
Memory evidence, captured in the form of survey data, as a final example, builds knowledge about the nature and prevalence of sexual violence. Memory evidence is essential in designing effective crime prevention initiatives.
The truth is, if we automatically discount memory reports on the grounds there is the potential for inaccuracy, or because we know of instances where memory reports have been inaccurate, then on the same grounds we should be prepared to stop investigating and prosecuting many more crimes than we may care to admit. Improving the quality of investigations, particularly how memory evidence is gathered, is in everyone’s best interests in improving the justice system.
There have been more than 600 field operations to find people who went missing during the Kosovo War and decade-long conflicts in the former Yugoslavia. To date, two out of three missing people have been identified. The dead have been found in mass graves, as well as hidden in cemeteries. The forensic archaeology taking place in Kosovo is painstaking, akin to finding a needle in a country-size haystack. Yet, progress is being made, thanks to the hard work of forensic professionals unearthing justice, decades later.