Forced Marriage Redux: Three Cheers for the Special Court for Sierra Leone

We blogged earlier on the decision of the Special Court for Sierra Leone (SCSL) (below) to drop charges of forced marriage against defendants Alex Timba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu (below), all members of the Armed Forces Revolutionary Council (AFRC).

The Prosecution had charged the crimes of forced marriage as crimes against humanity under the residual clause Article 2(i) penalizing “other inhumane acts.” The definition of crimes against humanity in the SCSL Statute also contains an open-ended list of sexual crimes at Article 2(g), which includes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence.” In dismissing the forced marriage charges for redundancy, the Trial Chamber ruled that the convictions for sexual slavery encompassed all the alleged conduct of the accused. As a matter of statutory construction, the Trial Chamber determined that all acts of a sexual nature were encompassed in Article 2(g). It saw no lacuna in the law that would merit the recognition of the novel crime of “forced marriage” separate and apart from the existing crime of sexual slavery. The Trial Chamber also indicated that any such crime would not be of comparable gravity to other, enumerated crimes against humanity and so could not be charged as an “other inhumane act.” The crime of forced marriage had also been charged as the war crime of committing “outrages upon personal dignity” (as prohibited by common Article 3 of the Geneva Conventions), but the Trial Chamber determined that the facts adduced by the Prosecution did not indicate the commission of a non-sexual crime of forced marriage that did not wholly overlap with the crime of “sexual slavery.”

As we advocated here, the Chief Prosecutor, American Stephen Rapp (below right), appealed. In a landmark opinion, the Appeals Chamber, with Justice George Gelaga King (below left) presiding, reversed in February of this year. The Chamber noted that the crime of forced marriage is not exclusively, or even predominantly, sexual and as such is not encompassed in the crime of sexual slavery. Rather, it noted, forced marriage involves the imposition of the status of marriage and a conjugal association by force, or threat of force. The gravamen of the offense is the assertion of a claim of right and ownership by the “husband” over the “wife,” which involves the right to demand a whole range of “conjugal duties” (including, but not at all limited to, non-consensual sex) in exchange for support and protection.

At trial, women testified that they were often placed in extreme danger as they were forced to “care for” their putative husbands in active war zones and risked severe punishment if they did not comply with their husbands’ orders. In this way, the crime encompasses a constellation of violations, including abduction, forced labor, deprivations of liberty, corporeal punishment and assault, as well as sexual violence. Indeed, a man’s motive in taking a so-called “bush wife” clearly went beyond the desire for sex, as the statistics on rape in Sierra Leone reveal that non-consensual sex was readily available to the warring parties. (Some studies suggest that upwards of 60,000 women were made victim to sexual violence in Sierra Leone (map, right) during the war). By being forced into this union with men involved in the commission of war crimes and crimes against humanity, women experienced severe physical and mental trauma. This harm is heightened by the fact that many women have been ostracized by their communities since the end of the war for being affiliated in such an intimate way with a member of one of the warring parties.

In reversing the Trial Chamber, the Appeals Chamber largely vindicated the dissent below by Justice Theresa Doherty (below right). The Appeals Chamber declined to enter a fresh conviction. Rather, the Chamber noted the expressive function of its judgment:

The Appeals Chamber is convinced that society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population is adequately reflected by recognizing that such conduct is criminal and that it constitutes an “Other Inhumane Act” capable of incurring individual criminal responsibility in international law. (¶202).

The judgment paves the way for prosecutions for forced marriage before the International Criminal Court, which is considering crimes arising out of conflicts in Uganda and the Democratic Republic of Congo that involved the extensive practice of forced marriage. (In Northern Uganda, for example, studies suggest that one in six young girls were kidnapped by the Lord’s Resistance Army). Article 7(g) of the ICC Statute contains an expansive list of crime of sexual violence that includes

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.

Its “Other Inhumane Acts” clause at Article 7(k) is formulated as

Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

These formulations lend themselves to the same reasoning employed by the SCSL. What matters now is prosecutorial priorities. Let's hope that Luis Moreno-Ocampo (Argentina), the Chief Prosecutor of the ICC, finds inspiration in his colleagues practising before the Special Court.

Go On! "Reforming Laws on Sexual Violence"

(Go On! is an occasional item on symposia of interest.) In October 2000 the UN Security Council unanimously passed Resolution 1325 on Women, Peace and Security, however the questions surrounding sexual violence and how the law ought to respond in order to both prevent and punish sexual violence continues to be contentious in both the international and domestic legal systems.

On 27 June 2008 the Centre for Criminal Justice and Human Rights, University College Cork (Ireland) will hold a conference entitled "Reforming Laws on Sexual Violence: International Perspectives," at which international and domestic experts will consider questions and issues relating to legal responses to sexual violence. The papers presented will consider the treatment of sexual violence in ad hoc tribunals, sexual violence and peacekeeping, transitional justice and responses to sexual violence, and the reform of the Irish criminal legal system in this relation.

This one-day conference is supported by the Irish Department of Foreign Affairs and forms part of Ireland’s chair of the Human Security Network. Full conference details, including booking form, are available here. Conference speakers include:

► Judge Teresa Doherty (Special Court for Sierra Leone)
► Kelly D. Askin (Open Society Initiative, and an IntLawGrrl)
► Prof. Doris Buss, Carleton University, Canada
► Amira Khair Khair, ICC Women/Sudan
► Madeleine Rees, Head of Women’s Rights and Gender Unit, Office of the UN High Commissioner for Human Rights
► Col. Ben Klappe, Military Judge/Judge in the District Court Arnheim/Netherlands Defence Academy
► Lt. Col. Oliver Barbour, Irish Defence Forces (GBV Consortium)
► Prof. Fionnuala Ní Aoláin, University of Minnesota/Transitional Justice Institute, University of Ulster
► Prof. Penny Andrews, Valparaiso University (USA)/La Trobe University (Australia)
► Dr. Milena Pires, Timor-Leste

► James Hamilton, Director of Public Prosecutions
► Dr. Tom O’Malley BL, National University of Ireland, Galway
► Pauline Walley, Senior Counsel

Details on registration here.

Forced Marriage: The Facts Don't Fit The Crime

In a recent 631-page decision, Prosecutor v. Alex Tamba Brima et al. (Case No. SCSL-04-16-T) mentioned earlier in this blog, Trial Chamber II of the Special Court for Sierra Leone refused to recognize a discrete offense of forced marriage as either a crime against humanity or a war crime. In so doing, the Court rejected innovative arguments by prosecutors that a crime of forced marriage existed independently of related war crimes and crimes against humanity of rape, sexual slavery, imprisonment, forced labor, and enslavement.
The concept of forced marriage was not a theory originally conceived of by feminist academics or advocates; rather, it came from victims themselves. As the story goes, prosecutors interviewing victims of the brutal civil war in Sierra Leone heard innumerable stories of gang-rape and other forms of sexual violence. Other women, however, described their experience using the vocabulary of marriage. The trial testimony of witness TF1-094 is indicative. TF1-094 was about 12 when her village was raided by rebels. Her parents were killed. She survived, because one Andrew intervened to “save her.” Saving her meant first raping her and then taking her along with him to act as his “wife” (also known by the unfortunate term “bush wife”)—doing laundry and other chores and traveling with his unit as the theatre of war shifted. On cross-examination, she admitted that Andrew generally “care[d] for her.” Andrew was ultimately killed in combat. Other women stayed with their “husbands” post-conflict, often because they knew no other life and had no other life to return to. The rest of the Judgement’s Factual Findings are equally as harrowing.
Through pleading vagaries in the Brima Indictment, the “forced marriage” allegations were adjudicated as the war crime of “outrages upon personal dignity” under Article 3(e) of the Special Court Statute. Exemplifying the normative redundancy of international criminal law, the Prosecutor had also originally charged forced marriage as the residual crime against humanity of “other inhuman acts” under Article 2(i) of the Statute. The Special Court ruled, however, that that provision “must logically be restrictively interpreted as applying only to acts of a non-sexual nature amounting to an affront to human dignity” in light of the “exhaustive category of sexual crimes particularised in Article 2(g) of the Statute,” viz. rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence. At the same time, the Court dismissed charges under Article 2(g) as duplicitous, because the Prosecutor did not adhere to the rule of one count, one offense. So, Article 3(e) remained the only “hook” on which the forced marriage allegations could hang. All these machinations in the judgment were after Trial Chamber I had earlier allowed the Prosecution to amend the Indictment to add the forced marriage allegations.
In its Judgement, the Court rejected the notion of forced marriage as a separate and distinct crime. The ruling is arguably based solely on the evidence presented, as the Court determined that the Prosecutor had not established a non-sexual crime of forced marriage that did not wholly overlap with the crime of “sexual slavery” as “[n]ot one of the victims of sexual slavery gave evidence that the mere fact that a rebel had declared her to be his wife had caused her any particular trauma, whether physical or mental.” In other words, the crime of sexual slavery subsumed every case of “bush marriage” presented. The Court went farther, however, in rejecting the very concept when it ruled that even if there had been such evidence, forced marriage would not amount to a crime against humanity because it is not of similar gravity to the other acts set forth in Article 2 of the Statute. The Court left open the question of whether forced marriage could still constitute a war crime, which may not require a heightened showing of harm to all of humanity. All defendants were found guilty under Count 9 for the war crime of outrages upon personal dignity.
Justice Teresa Doherty (left, from Northern Ireland) wrote a compelling dissent. She argued that the phenomenon of forced marriage within the context of the Sierra Leone civil war was distinguishable from the crime of sexual slavery as well as other forms of arguably forced marriage, such as arranged marriages or inheritance marriages, that may implicate human rights norms but not international criminal law.
So often, women’s reality is not acknowledged until it is named. Unlike other international prosecutorial teams—who have been critiqued for failing to elicit, overlooking, ignoring, discrediting, and not pursuing women’s stories of sexual violence in their investigations and indictments—the Special Court’s Prosecutor was clearly listening to women. This Trial Chamber, however, missed an opportunity to acknowledge the lived experience of women and to harness the expressive function of the law. The charge of sexual slavery alone fails to capture the full culpability of the accused and the total experience of the victim who finds herself trapped in a life not of her choosing, saddled with an irreversible conjugal status and innumerable “conjugal duties.” The case lends further credence to the astute observation of Professor Catharine A. MacKinnon (right) that “Women are violated in ways that men are not, or rarely are.” It also provides further evidence of how powerless women may be to control their fates in times of war. One is left to hope that the Prosecution maintains its commitment to the women of Sierra Leone and appeals the Trial Chamber's ruling as a matter of law.

[Posted by IntLawGrrl Beth Van Schaack]

Special Court for Sierra Leone: 1st verdicts

The mixed national-international tribunal set up in the wake of Sierra Leone's civil war returned its 1st verdicts yesterday, finding 3 rebel leaders guilty on 11 counts of war crimes and crimes against humanity. This 1st judgment by the Special Court for Sierra Leone also constituted the 1st international convictions for conscripting child soldiers and forced marriage as crimes against humanity. (A pathbreaking work on the 2d crime is Forced Marriage: Rwanda’s Secret Revealed, 7 UC Davis Journal of International Law & Policy 197 (2001), by Monika Kalra Varma).
Reading the verdict at yesterday's session was Justice Julia Sebutinde (left) of Uganda, Presiding Judge of Trial Chamber II. The other members of the panel -- now adjudicating charges against former Liberian President Charles Taylor -- were Justices Teresa Doherty (right) of Northern Ireland and Richard Lussick of Samoa.
In the instant case, Trial Chamber II adjudged defendants Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu. Each had helped lead the Armed Forces Revolutionary Council, which, along with the Revolutionary United Front, had wreaked mayhem in the Western African country throughout much of the 1990s. The Court reports that in addition to crimes just mentioned, these 3 also were found guilty of acts of terrorism, collective punishments, murder as a crime against humanity, murder as a war crime, rape. outrages upon personal dignity, physical violence as a war crime, enslavement, and sexual slavery and other sexual violence. (The 631-page judgment's available here.)
Allowing that the judgment's "'a positive signal,'' Amnesty International urged greater accountability for the atrocities of Sierra Leone's civil war; that is, more prosecutions of persons believed responsible, as well as compensation for victims of the violence.