Earlier last month it was announced that the Croatia Parliamentis about to enact a law giving compensation to victims of rape during the 1991-1995 war. The new law which is passed with 86 votes in favor and three abstentionsentitles the victims to a one-time compensation of some $14,000, as well as to a monthly allowance, health care, counseling and legal aid.
At the same time, in the neighboring Serbia leading local NGOs just introduced a comprehensive model law on the Rights of Civilian Victims.
The basis for recognition and advancements of victims’ rights is a landmark ICTY case from 2001 against Kunarac, and consequently Kovac and Vukovic in which for the first time in our history sexualenslavement and rape are qualified as war crimes and crimes against humanity. Peggy Kuo who today works as General Counsel at New York City Office of Administrative Trials and Hearings was one of theprosecutors in the Kunarac case and we spoke with her in New York.
New Magazine: Before going to the Hague, did you know anything about countries of former Yugoslavia?
Peggy Kuo: The first time I heard of Yugoslavia was in 1977. In my eighth grade Social Studies class, we studied multi-ethnic societies. Yugoslavia, along with South Africa and Lebanon, was held up as an example of how people from different backgrounds could live together in harmony. We learned that of all the communist countries in Europe, Yugoslavia had the greatest economic potential. Later, when war broke out, I remembered the hopefulness from that class, and it made me sad.
NM: You graduated from both Harvard Law School and Yale. Do you feel that the university course work sufficiently prepared you for the ICTY? How come that you decided to join the Tribunal at the first place?
PK: Those schools gave me an amazing education. I took classes in history, literature, anthropology, art, psychology – things that helped me understand people. I learned a lot about European history, including about World War II and the Nuremberg trials.
When it came to learning about the laws I would come to apply at ICTY, there was nothing. Today, law students can study international criminal law and learn about the cases at ICTY, ICTR, and ICC. Back then, we didn't have any of that. When I got to The Hague, I had to draw on my background in American criminal law, which I had experienced as a prosecutor, and the legal concepts I learned in other classes, such as property law. One of the most useful things I learned in law school was to think not only of what the law is now, but also of what the law can be. Thinking creatively and optimistically helped me when I got to ICTY.
NM: One of the main critics of the ICTY was that it was based on common law system, whereas accused and their lawyers were accustom to civil law system. Was this your impression as well?
PK: Unfortunately, yes. The common law system sees trials as a fight between two sides, and the judges are referees. In the civil law system, the judge is the fact-finder, asks questions, and directs the proceedings; the lawyers are only there to help. It's not easy to work in a system that is different from the one you are familiar with. At ICTY, we had the benefit of working with colleagues from different systems all over the world. Lawyers for the accused often did not have that advantage. There were times during the Foca trial, when the defense lawyers did not understand that they, not the prosecution, had the obligation to present all the evidence that was favorable to their case. They also did not have experience cross-examining a witness to prove their points. At times, we on the prosecution team felt like we had to help them understand the procedures so we could all be on the same playing field. Later on, many more lawyers with experience in common law joined defense teams, and tribunal procedures also changed to become more like civil law.
NM: How did you prepare for the trail? Also, do you think that the punishments were just given the fact that two of three convicted men are already out of the jail?
PK: The Foca case was only made possible through the hard work of investigators, the cooperation of NGOs and governments, and the bravery of the witnesses. The decision was made early to focus on the incidents of sexual assaults for which we had the best evidence, although we could have charged many more counts. In the end, sixteen victims came to The Hague to testify against the accused and tell the world what really happened. They knew that the truth mattered. In addition to what happened to them personally, they lost family members and saw others suffer. To this day, many of them still do not know what happened to their fathers, brothers, children. They, along with many other witnesses, are some of the bravest and strongest people I have met.
No punishment can undo the harm that was done in Foca. From an international law perspective, the judgment was a victory. But from a human perspective, the punishment was not enough. I think in most domestic criminal systems, the defendants would have gotten life in prison for what they did. But the ICTY judges were trying to calibrate the sentences to show the relative importance they placed on certain acts. At that time, Milosevic, Karadzic, and Mladic were still not in custody. I believe the judges were waiting for these "big fish" to impose the greatest sentence if they were found guilty of genocide.
NM: Thanks to the Foca case enslavement and rape in warare defined as crimes against humanity. Did anything change for you after the trials, maybe in the way you perceive people? Did you learn or discover something about human nature?
PK: One very important lesson I learned from hearing the witnesses' stories is that, even during war, it's hard to generalize about people's behavior. For example, even though many of the victims were repeatedly raped by different soldiers, some of the victims told of an individual soldier who refused to rape them. That soldier said, when they were left alone in a room, "I will not touch you. Just sleep." And witnesses also told of a Serb woman who would come by the sports hall where the Muslim women and girls were being detained. She would talk to the soldiers, and when they were drunk or threatening abuse, she would invite them for coffee to calm them down. I think it is very important in bringing criminal cases to focus on the acts of individuals and not demonize an entire group of people. There are good and bad people everywhere, and individual acts of kindness can make a difference and will be remembered.
NM: About 10 years ago you left ICTY. What do you think about the Tribunal now, and about the effects it had on the Balkans?
PK: The ICTY presented an opportunity to put lofty ideals into practice. The result was both encouraging and disappointing. We didn't stop all wars. We didn't mete out perfect justice. But we did build a framework for thinking about some of the things that people do during armed conflict. The experience of the ICTY made it possible to talk about those acts as crimes, put a value judgment on them, and deal with them. Our trials helped to set the historical record straight. And if our cases stop one soldier from raping or killing civilians, or one leader from fomenting ethnic hatred, then we would have made a small contribution to peace.