Guest Blogger: Monika Kalra Varma

Honored to welcome Monika Kalra Varma (right) as IntLawGrrls' guest blogger today.
Monika is the Director of the Robert F. Kennedy Center for Human Rights in Washington, D.C., where she develops and oversees programming, day-to-day operations, longterm strategies. (Prior IntLawGrrls posts.)
Since joining the center in 2002, she's spearheaded innovative economic and social rights advocacy, including efforts to hold international actors accountable for extraterritorial economic rights violations. Advocacy campaigns she's led have targeted the United Nations and its member states, various branches of the U.S. government, members of the Organization of American States and other regional bodies, international financial institutions, and corporations.
Monika serves on the editorial board of Health and Human Rights: An International Journal, published by the Harvard-based François-Xavier Bagnoud Center for Health and Human Rights, and she is a steering committee member of the Lawyers Emergency Response Network for Haiti. She is also a member of the advisory board for the Global India Fund.
She speaks regularly with policymakers and members of civil society about domestic and international human rights issues, and has published commentary in, to name a few, the Boston Globe, the Guardian, the Huffington Post, and Jurist.
Today she contributes to IntLawGrrls. Monika's guest post below discusses her recent visit to Western Sahara as part of an RFK Center delegation -- a visit that produced a just-published report.
Prior to joining the RFK Center, Monika worked at The Hague. As a legal officer in the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, she was a member of the trial team which secured the ICTY's first indictment and eventual conviction of the crime of terror. Accused, and eventually convicted, was General Stanislav Galić, the Serb military commander in Sarajevo from 1992-1994.
Monika earned her B.A. degree from the University of California, San Diego, and her J.D. from the University of California, Davis, School of Law. Indeed, I'm proud to say that she is a former student of mine, and the author while a student of a pathbreaking article, "Forced Marriage: Rwanda’s Secret Revealed," 7 University of California Davis Journal of International Law & Policy 197 (2001). We're been honored to name her a featured alumna on the website of our California International Law Center at King Hall, and also to work with her on the Darfur Project (described in posts available here) undertaken jointly between CILC and the RFK Center.
A truly heartfelt welcome!

DADT no. Child brides yes. DREAM not.

The headline presents one way to read recent doings in Congress. The latest developments:

► Repeal of "don't ask don't tell," the military policy regarding gays and lesbians (prior posts available here). Having cleared the final congressional hurdle yesterday, the repeal legislation's now on the President's desk.
► House blockage Thursday of the International Protecting Girls by Preventing Child Marriage Act of 2010, which, as we posted, earlier had won unanimous approval in the Senate.
► Yesterday's failure to secure Senate as well as House passage of the DREAM Act; that is, the the path to citizenship for some young, undocumented immigrants. Full name: Development, Relief, and Education for Alien Minors Act of 2010.

Still on the Senate's docket, today and until the upper chamber adjourns: New START.

Child marriage, abroad & at home

Pending in the U.S. House of Representatives is a bill to combat child marriage around world.
The International Protecting Girls by Preventing Child Marriage Act of 2010 (S. 987) unanimously passed the Senate 11 days ago. The bill finds, inter alia:

Child marriage, also known as 'forced marriage' or 'early marriage', is a harmful traditional practice that deprives girls of their dignity and human rights.

and:

Child marriage as a traditional practice, as well as through coercion or force, is a violation of article 16 of the Universal Declaration of Human Rights, which states, 'Marriage shall be entered into only with the free and full consent of intending spouses'.

Citing the frequency with which under-18 girls (girls in particular, though elsewhere the bill mentions boys, too) marry, in countries like "Niger, Chad, Mali, Bangladesh, Guinea, the Central African Republic, Mozambique, Burkina Faso, and Nepal," the bill would:
► Authorize the U.S. President to work with "multilateral, nongovernmental, and faith-based organizations" to develop a child-marriage-prevention strategy that includes "education, health, income generation, changing social norms, human rights, and democracy building"; and
► Require that information about the nature and prevalence of child marriage be included in the annual Country Reports published by the U.S. Department of State.
No word on when such legislation might be taken up in the House.
Movement in that direction received a notable boost last week, in a Washington Post op-ed published jointly by Mary Robinson (right), formerly the President of Ireland and the U.N. High Commissioner for Human Rights, and Desmond Tutu, Archbishop Emeritus of Cape Town, South Africa, and winner of the 1984 Nobel Peace Prize. Members of The Elders group established by former the South African President and Nobel Peace Prizewinner, the 2 wrote:

As members of an independent group of leaders who were asked by Nelson Mandela to use our influence to address major causes of human suffering, we have never been involved in supporting a specific piece of legislation before, but we believe that investing in efforts to prevent child marriage is critical to global development and the achievement of the U.N. Millennium Development Goals. We applaud the Senate for passing this forward-looking legislation and urge the House of Representatives to follow suit.

Against the backdrop of these recent legislative efforts, an item discovered in the Library of Congress archives jumped out.
A captivating account of early 20th C. "women's editions" published by the mainstream U.S. press included the Louisville Courier-Journal clipping at left, entitled "Black List of States". Listed was the legal limit "at which fathers, brothers, and husbands have placed the age at which a little girl may consent to her ruin" -- that is, the age at which she could become a child bride in the United States.
In all but 3 states (Colorado, Kansas, and Wyoming), the age was under 18.
The youngest age of legal consent?
7 years, in Delaware.
The date?
1895, just 53 years before adoption of the Universal Declaration to which the pending legislation refers.

Day One in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The Review Conference of the Rome Statute of the International Criminal Court opened here yesterday. Bill Pace, Convenor of the non-governmental Coalition for an ICC, noted that the event was likely the largest gathering of international criminal law experts ever held.

Several of the speeches in the opening high-level plenary referenced how important it is that the ICC address sexual and gender-based violence.

For example, UN Secretary-General Ban Ki-moon recognized the significant contributions the ad hoc tribunals for the former Yugoslavia and for Rwanda, along with the Special Court for Sierra Leone, have made in prosecuting rape and other sexual violence crimes and he urged the ICC to deal with sexual violence crimes as a priority.

In the afternoon, the Women’s Initiatives for Gender Justice launched its newest publication, Advancing Gender Justice: A Call to Action. The Call to Action focuses, in part, on how the ICC can better achieve gender-sensitive justice. Its recommendations include:

► A serious and significant increase in state and voluntary contributions to the ICC Trust Fund for Victims, including to Trust Fund’s donor appeal for victims of sexual violence launched in 2009;

► Development by the ICC’s judges of gender-inclusive, victim-centered guidelines on reparations for victims before the Court, authorized in Article 75 of the Rome Statute;

► Stronger and more consistent jurisprudence from the ad hoc tribunals, special courts and the ICC on forced marriage, forced pregnancy, forced sterilization and sexual mutilation;

► The ICC should ensure that its mechanisms support the exercise of the right of victims to apply to the Court for formal recognition and subsequent participation in the legal proceedings; and

► When countries implement the Rome Statute into domestic law, they should do so in a manner that is fully inclusive of the gender provisions of the Rome Statute.

This Call to Action was issued following one consultation in 2008 in Kampala with 155 women’s rights and peace activists, primarily from conflict situations under investigation by the ICC, and another at the April 2010 Internattional Gender Justice Dialogue (prior IntLawGrrls posts here and here). In addition, Women's Initiatives undertook ongoing consultation with women through its extensive country-based programming. The group has a delegation in Kampala of 30 women's human rights and peace activists from three of the four ICC situation countries.

The conversation on gender issues will likely continue throughout the Review Conference, especially as a result of the Women’s Court event, which Women's Initiatives has organized for today, and of the stocktaking exercises, set for later this week, which will focus on the impact of the Rome Statute system on victims and affected communities, peace and justice, complementarity and cooperation.

Results are in, immigration is down in Europe

Eurostat, the European Statistics office, has published its 2009 report on asylum requests in Europe. The results should warm the heart of any proponent of tighter borders, managed immigration, and "local" asylum solutions (i.e., in or near the asylum seekers' home country):
► Of the total 229,500 asylum requests made in the EU, 166,900, or close to three-quarters (73%), were denied.
France, which calls itself a terre d'asile (land of asylum) as if it were synonymous with terre promise (promised land), received the most requests (47,600). But of the more than 35,000 requests it actually reviewed in 2009, it denied more than 30,000, while Germany refused 17,000 of the roughly 27,000 requests it received. Of the 27 EU member states, only Malta, Portugal and Slovakia granted more requests than they denied. Moreover, the 27% of requests that were not denied did not necessarily result in grants of asylum:
► While 12% of those seeking asylum did obtain it, 4% were given permission to stay in the EU on humanitarian grounds, and 11% were granted only subsidiary protection, which means they may be returned to their home country once it is deemed "safe."
The drawbridge to Fortress Europe (image credit) would therefore seem to be up, perhaps never to come back down.
This will have a disproportionate impact on women (see prior post):
► Subsidiary protection is replacing asylum in cases of gender-based discrimination, such as genital mutilation and forced marriage, whereas the conditions taken into account to determine a country's "safety" do not include indicators of gender-based discrimination.
More and more women and girls are therefore being given a temporary status that deprives them of the ability to easily integrate into and become fully autonomous, contributing citizens of their adoptive countries, where they live under threat of being returned to a country with outward signs of "safety" (end of armed conflict, democratic government) that may be unrelated to these women's personal safety.

Expulsion repulsion

Causing concern in France these days are cases in which the government's kicked out of the country women who've cried for help.
Among them is Najlae Lhimer (left (credit)), a 19-year-old student who resided in the north-central département of Loiret. As reported in Le Monde, she'd fled her home in Morocco in 2005 in order to escape from forced marriage -- only to end up living with a brother who "mistreated her regularly."
A few weeks ago Lhimer filed an official complaint alleging that she was the victim of domestic violence. Police responded quickly. But not as she'd hoped. Within days, she was sent back to Morocco.
Hers is not a unique case. It's reported that 4 battered women in Loiret have been threatened with expulsion or actually expelled. As a result, legislator Danielle Bousquet (below right (credit)) has urged

'a moratorium on the expulsions of foreign women who are the victims of violence.'

Protests have been ongoing, and more are planned for this weekend in the runup to International Women's Day, which as we've posted, is this Monday, March 8.

Guest Blogger: Máiréad Enright

It's IntLawGrrls' great pleasure to welcome Máiréad Enright (right) as today's guest blogger.
Máiréad is a Ph.D. Candidate in Law and the EJ Phelan Fellow in International Law, 2008-2010, at University College Cork, Ireland. She's completing a thesis on the reception of Muslim divorce law in secular legal systems. Her guest post below discusses British law and culture with respect to forced marriage and arranged transnational marriage.
Her work at Cork forms part of a 3-year thematic research project on Gender, Multiculturalism and the Law in Ireland, directed by her supervisor, Dr. Siobhán Mullally, Senior Lecturer and Co-Director Centre for Criminal Justice and Human Rights at University College Cork. Funding the project is the Irish Research Council in the Humanities and Social Sciences.
Called to the Irish Bar in 2006, Máiréad was awarded a visiting fellowship to the Feminism and Legal Theory Project at Emory Law School in Atlanta, Georgia, in Spring 2009 and a visiting fellowship to Osgoode Hall Law School, York University, Toronto, Canada, in Summer 2009, and next month will be a visitor at Queen Mary, University of London, England.
Máiréad dedicates her contribution to the Irish poet Eibhlín Dhubh Ní Chonaill, of whom she writes:

Eibhlín was born in 1743 in Derrynane, at left, in my county of Kerry, to a wealthy family with a tradition of producing women poets. She is best known as the author of the famous poem, Caoineadh Airt Ui Laoghaire, a 'keen,' or lament, for her dead husband. Eibhlín's husband Art was killed by a local magistrate who had offered to buy the Catholic noble's racehorse for an insultingly low price. When Art refused, thus flouting the Penal Laws designed to limit Catholics' civil and political rights and undermine their culture, he was murdered. He left behind his pregnant wife and two small sons. His murderers were never punished.
In choosing to commemorate Eibhlín Dhubh Ní Chonaill, I wanted to think about the many women harmed by colonisation and by the brutal law that inevitably accompanies it, and about the damaging echoes of colonisation which persist in countries, such as Ireland, that have gained their independence. In 1829, Eibhlín's nephew, the barrister Daniel O'Connell, finally secured Catholic Emancipation: for this achievement he is remembered as 'The Liberator'. O'Connell's statue, at right, is on Dublin's main street, which is named after him. There is no surviving picture of his aunt.

Today Ní Chonaill joins other transnational foremothers in IntLawGrrls' list below the "visiting from..." map at right.
Heartfelt welcome!

Law & forced & arranged marriages

(My thanks to IntLawGrrls for the opportunity to guest post on my work on forced marriage and transnational arranged marriage.)

My article called ‘Choice, Culture and the Politics of Belonging: The Emerging Law of Forced And Arranged Marriage’, recently published at 72 Modern Law Review 331 (2009), generally reflects my interest in the construction of the female citizen subject in legal discourse. (photo credit)

The majority of reported victims of forced marriage in the United Kingdom are young women of South Asian Muslim origin. Because of this fact, the forced marriage project must be read critically against the background of a wider politics of British Muslim belonging, which is linked to the counter-terrorism and social cohesion agendas. This politics operates to exclude some British Muslims from full membership in the ‘we group’ of British citizens. The ground for exclusion is that of ‘excessive’ or ‘difficult’ culture. Those British Muslim who are presented as most bound up in cultural practice, I argue, have become the British citizen’s ‘other’, and are subject to law’s discipline on that basis.

I trace the developing construction of the act of forcing another to marry as the exemplar performance of difficult culture, and as the exemplar rejection of British values – particularly the value of autonomy – in the major policy statements on forced marriage prevention.

Within the article are two points of critique:

► First, the focus on culture borne of the present need for the politics of belonging to define its other as a ‘cultural’ other leads to an effective culturisation of forced marriage. This means that much effective work has been done to tackle the considerable ‘internal cultural’ obstacles to exit from an unwanted marriage. The third-party and secondary-offender provisions of Lord Lester of Herne Hill QC's Forced Marriage (Civil Protection) Act 2007 are excellent examples. A focus on culture also, doubtless, sparked the involvement of specialist women’s organisations such as Southall Black Sisters in the drafting of the initial bill, and this is a good thing.

On the other hand, I argue that the focus on culture has been almost entirely to the exclusion of other socio-economic factors which also contribute to the difficulty of ‘exit’.

So, for instance, it is very telling that, at the same time that the Forced Marriage Act was being birthed, many specialist women’s refuges and domestic violence services – the support organisations which are invaluable to women seeking to leave a difficult family situation – were struggling to remain open for lack of adequate government funding. The focus on culture served to hide the state’s contribution to women’s oppression.

► A second point flows from the influence of the politics of belonging on the forced marriage project. We might imagine that, in this arena, the relative (particularly the father, because a deeply gendered construction of the violence of forced marriage is at play) who forces a young woman into marriage occupies the most precarious position in the schema of British Muslim citizenship. But some perhaps counter-intuitive exclusions also take place when, particularly in the new immigration legislation:

• the often vulnerable immigrating spouse in a transnational marriage is reduced to perpetrator status, by virtue of his or her ‘foreign’ culture; or
  
• the young British Muslim citizen is the subject of wide-ranging protective intervention which has the effect of disciplining those who choose ‘with’ culture and in favour of transnational arranged marriage.

Questions arise about who is ‘permitted’ to occupy the ‘victim slot’ in the forced marriage debate, and about whether the right to make certain marital choices, and to claim that right from a position of victimhood if it is denied, carry a ‘duty’ to make the ‘more British’ choice. Since the article was written, an idealised forced marriage victim has begun to emerge in media coverage of the issue. This is reflected in the newspapers’ presentation of the case of Dr. Humayra Abedin, a British National Health Service physician. Hers is one of the first of 23 successful applications so far under the new Forced Marriage (Civil Protection) Act 2007. (credit for photo of Abedin, center, with her solicitor, Anne-Marie Hutchinson, left)

What does the forced marriage project tell us about the citizenship of British Muslim women who do not sufficiently fit the model of victimhood: young, English-speaking, educated, thoroughly ‘Westernised’? Is there another subject position which they can legitimately occupy?

Vindication, but too late?

As we’ve blogged before, the Extraordinary Chambers in the Courts of Cambodia were recently seized of a disagreement between the two Co-Prosecutors over whether to forward new Introductory Submissions to the Co-Investigating Judges for judicial investigation pursuant to Internal Rule 53. (Introductory Submissions are written submissions by the prosecutor to an investigating judge requesting an investigation into crimes and proposing charges). The International Co-Prosecutor — at the time, Canadian jurist Robert Petit (left) — sought to supplement the investigation of Case 002 (which concerns the four former Khmer Rouge principals in custody) and launch two new cases (Cases 003 and 004). The Cambodian Co-Prosecutor — Chea Leang (below right) — opposed any expansion of proceedings beyond the five suspects already in custody. Petit argued in his submissions that the only requirement to open an investigation was the determination that there were reasonable grounds for believing that additional crimes within the jurisdiction of the ECCC had been committed. By contrast, Leang argued that extra-legal factors — such as the limited nature of the ECCC’s mandate, the threat of instability, and resource constraints — counseled against any expansion of charges.

Anticipating just such a disagreement between Cambodian and international personnel, the ECCC’s constitutive documents provide that disagreements of this nature are to be resolved by the Pre-Trial Chamber — a mechanism that is unique to the ECCC and strains classic separation of powers principles. In this process, the burden of persuasion rested with the National Co-Prosecutor. A decision of four of the five judges of the Pre-Trial Chamber (composed of three Cambodian and two foreign jurists) would have been necessary to block the additional investigations from going forward.

After receiving a number of written submissions from the Co-Prosecutors (who both agreed that an oral hearing was unnecessary and undesirable), the Pre-Trial Chamber (below left) issued its ruling on August 18, 2009; that ruling was released yesterday. The Chamber was unable to reach a majority, and so the International Co-Prosecutor has a mandate to seek the supplemental and new investigations.

Revealing that the dissension within the Chamber was, predictably, along nationality lines, the three Cambodian judges and the two international judges issued separate opinions. The Cambodian judges argued that the International Co-Prosecutor’s supplemental investigation was unlawful because it was conducted unilaterally without the cooperation (or knowledge) of the National Co-Prosecutor. They also reasoned that the (mostly redacted) facts on which the International Co-Prosecutor premised the proposed additional investigations were already part of the investigation of Case 002, including allegations of forced marriage. Accordingly, in their opinion, no new Introductory Submissions were warranted.

The international judges, by contrast, argued that concerns about the illegality vel non of the International Co-Prosecutor’s investigation were untimely. They also noted that new proposed Introductory Submissions were required if the Co-Investigating Judges were to consider the new facts revealed and that the new submissions were structured differently in terms of their subject matter and foci than the first submissions. The decision is not subject to appeal (Article 7(4) of the Agreement establishing the ECCC).

The vindication comes too late for Petit, who has stepped down as International Co-Prosecutor citing family reasons. The appointment of Australian William Smith (right), formerly the Deputy Co-Prosecutor, as interim Co-Prosecutor took effect this past Monday.

It remains to be seen who else will be the subject of investigation, although at the time the disagreement was revealed, Petit did state that additional suspects would not threaten the Royal Government of Cambodia. The government may feel otherwise, as it was widely believed that governmental authorities had pressured Leang to resist the expansion of any investigation.
Stay tuned...

Sierra Leone Special Court: sentences of 25, 40, and 52 years for gender-based crimes

(We welcome IntLawGrrl guest/alumna Valerie Oosterveld back for a guest post on the Special Court for Sierra Leone. Valerie, in turn, extends her thanks for the invitation to contribute to the blog.)

Today, Trial Chamber I of the Special Court for Sierra Leone imposed upon Issa Hassan Sesay, Morris Kallon and Augustine Gbao sentences of 52, 40 years, and 25 years of imprisonment, respectively, in the Revolutionary United Front case.
This sentencing followed the February 25th oral trial judgment, which convicted Sesay and Kallon of 16 of 18 counts and Gbao of 14 of 18 counts of crimes against humanity and war crimes, and the March 2nd release of the written trial judgment. My previous guest post, on the rulings of conviction, is here.
All of the accused were convicted of gender-based crimes against humanity, namely rape, sexual slavery and inhumane acts (forced marriage). They were also convicted of the war crime of outrages upon personal dignity.
The judgment – some 824 pages in total – outlines a number of brutal gender-based acts, some committed by children, such as rape and sexual mutilation, forced nudity and forced marriage. As well, the judgment recounts evidence of civilian men being forced to rape civilian women on orders of the RUF. In one case, a couple was forced to have sexual intercourse in public and in view of their 10-year-old daughter. The daughter was then forced to wash her father’s penis (paras. 1205, 1302, 1304). The judgment refers to RUF orders for men and women to be separated, so that each group could be violated in different gender-specific ways. For example, sometimes men and boys were specifically targeted to have “RUF” carved in the flesh of their backs or arms, while women and girls were targeted for forced marriage.
Here are two examples of gender-based acts recounted in the trial judgment:
► In 1998, witness TF1-195 was captured in the bush by the RUF. One ordered her to undress and he raped her as two men watched. These two then also took turns raping her. TF1-195 was forced to join a group of captured civilians. The female civilians were divided into two groups: young girls (believed to be virgins) and older women (this group included TF1-195). The older women were told to undress and were raped, and TF1-195 also had a stick inserted into her vagina. As a result of this mistreatment, she has suffered five years of physical pain (paras. 1180-1181, 1185).
► Also in 1998, witness TF1-016 and her 11-year-old daughter were captured by RUF rebels and assigned as “wives”. TF1-061 was assigned to Kotor, for whom she had to perform domestic chores: cooking, washing clothes, cleaning house and pounding rice. Kotor also forced her to have sex with him on a daily basis. Kotor held her captive for one year and three months (paras. 1209, 1211-1213).
The judgment analyzes the crimes against humanity of rape, sexual slavery and other inhumane acts (forced marriage) and the war crime of outrages upon personal dignity. There is no single international approach to defining the elements of crime for rape. The RUF judgment follows both the approach set out in the International Criminal Court’s Elements of Crimes document and the approach incorporating direct reference to non-consent (along the lines of the International Criminal Tribunal for the Former Yugoslavia in Kunarac et al.), while also stressing the coercive circumstances prevailing in cases involving armed conflict (paras. 143-151).
The Trial Chamber referred to the importance of specifically naming sexual slavery as a prohibited act, in order to

draw attention to serious crimes that have been historically overlooked and to recognize the particular nature of sexual violence that has been used, often with impunity, as a tactic of war to humiliate, dominate and instill fear in victims, their families and communities during an armed conflict (para. 156).

The Trial Chamber’s elements of crimes focus on the exercise of powers attaching to the right of ownership and emphasize that “the lack of consent of the victim to the enslavement or to the sexual acts is not an element to be proved by the Prosecution” (paras. 158-163).
With respect to forced marriage, the Chamber found that the choice of the term “wife” by the RUF was deliberate and strategic, “with the aim of enslaving and psychologically manipulating the women and with the purpose of treating them like possessions” (para. 1466). In Koidu and Wendedu, for example, the Trial Chamber identified a consistent pattern of conduct: women were “married” against their will, forced to engage in sexual intercourse and perform domestic chores, and were unable to leave their “husbands” for fear of violent retribution (para. 1293). The Trial Chamber defined the actus reus of forced marriage as the imposition of a forced conjugal association, and indicated that this association carries with it lasting social stigma which hampers the recovery and reintegration into society of those made into “wives”. This suffering is in addition to the physical injuries suffered by these “wives” through rape (paras. 1295-1296).
For its analysis of the war crime of outrages upon personal dignity, the Trial Chamber took a similar approach to the International Criminal Court’s Elements of Crimes document and the ICTY's Kunarac et al. judgments (paras. 175-177).
The accused argued that the RUF indictment was fatally flawed in certain ways. For example, following the approach in the Prosecutor v. Brima, Kamara and Kanu (Armed Forces Revolutionary Council or AFRC) trial judgment, Kallon argued that the charge of “sexual slavery and any other form of sexual violence” (Count 7) violated the rule against multiplicity, duplicity or vagueness (para. 456). The Trial Chamber agreed, but followed the remedy prescribed in the AFRC Appeals Judgment, which was to strike out the charge of “any other form of sexual violence” and proceed to consider only the charge of sexual slavery (para. 458). Kallon also argued that evidence of “any other form of sexual violence” should not be able to be considered under Count 9, the war crime of outrages upon personal dignity. The Trial Chamber opined that conduct which constitutes “any other form of sexual violence” could still be considered as the basis for charges of “outrages upon personal dignity” (para. 469).
Sesay argued that the crime of forced marriage had been defectively pleaded because the Prosecutor had initially characterized forced marriage as a sexual crime and later characterized it as a crime not predominantly sexual in nature (para. 466). The Trial Chamber noted that, while the prosecution may have caused some confusion by its initial characterization of forced marriage as a sexual crime, the material facts underlying the offence were sufficiently pleaded (para. 467).
In sum, the trial judgment captures the wide-ranging nature of gender-based violence committed by the RUF during the Sierra Leonean conflict. It is the first judgment of an international or internationalized criminal tribunal to convict individuals for the crime against humanity of forced marriage (under the category of inhumane acts). The International Criminal Court’s Lubanga case has heard quite a bit of testimony to date relating to forced marriage. While, in that case, the evidence of forced marriage is being put forward by the Prosecutor to support charges related to the recruitment and use of child soldiers, the RUF trial judgment, coupled with the Special Court’s earlier appeals judgment in the AFRC case, can provide a helpful contextual approach in which to evaluate those charges. The RUF judgment should also be helpful to the analysis of forced marriage under Cambodia’s Khmer Rouge, about which IntLawGrrl Jaya Ramji-Nogales has blogged here.

End violence against women now

Today is International Women's Day. To mark it, U.N. Secretary-General Ban Ki-moon has called for an end to violence against women. Calling it an "abomination." Ban (right; photo credit) said:

The consequences of violence go beyond the visible and immediate. . . .The impact on women and girls, their families, their communities and their societies in terms of shattered lives and livelihoods is beyond calculation. . . .Violence against women cannot be tolerated, in any form, in any context, in any circumstance, by any political leader or by any government.

An encouraging report in this regard from Afghanistan notes that progress is being made in that country, where the centuries-old tradition of forced marriages means that girls and women seeking to escape abusive marriages risk being thrown in jail for being on the street alone or being returned to her husband. Though advocates say that women are still commonly victims of beatings, torture and trafficking, the 2001 overthrow of the Taliban has led to women's rights entering the vocabulary as the new Afghanistan Constitution and Ministry of Women's Affairs have, along with women's advocates, helped to promote greater equality for women. And since the first women's shelter opened in 2003, at least some of the girls and women like one named Mariam, forced to marry a 41-year-old man when she was 11 and beaten for not conceiving a child, have a safe place to go.

Guest Blogger: Valerie Oosterveld

It is IntLawGrrls' great pleasure to welcome Valerie Oosterveld (pictured right) as a guest blogger. Valerie is Assistant Professor and Director of the International Law Internship Program at the Faculty of Law of the University of Western Ontario, where she teaches International Criminal Law, International Human Rights Law and Public International Law. Valerie received her LLB from the University of Toronto and her LLM and SJD from Columbia Law School.

Valerie's expertise in international criminal law stems from her participation as a member of the Canadian delegation to the International Criminal Court negotiations and its Assembly of States Parties. She also served in the Legal Affairs Bureau of Canada’s Department of Foreign Affairs and International Trade, where she provided legal advice on international criminal accountability for genocide, crimes against humanity and war crimes, especially with respect to the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the Sierra Leone Special Court, and other transitional justice mechanisms such as truth and reconciliation commissions. Valerie has published extensively on gender issues in international criminal law, including two articles this year, one in Human Rights Review on gender-based violence before the Special Court for Sierra Leone and one in the Canadian Yearbook of International Law on the Special Court for Sierra Leone and forced marriage, the topic of her guest blog today (related to my blog last week on the Extraordinary Chambers in the Courts of Cambodia and forced marriage).

Heartfelt welcome!

Expanding Dialogue at the ECCC

The media is abuzz this week with news of the start of the trial of former Khmer Rouge leader Duch, which is the first trial to be held by the Extraordinary Chambers in the Courts of Cambodia. This is a momentous occasion, to be sure, and one to be celebrated as an opportunity for accountability and furtherance of the rule of law in Cambodia. Amidst the excitement, however, a smaller piece of news caught my eye: the Civil Parties' request that the Co-Prosecutors undertake further preliminary investigations into Duch's role in mandating forced marriages under the Khmer Rouge regime. (I received an electronic copy of the filing, but it's not yet been posted on the ECCC's website.) This seems to me potentially a great leap forward in expanding the dialogue about the shape of accountability in internationalized criminal courts in at least two directions.

First, the obvious -- the involvement of the Civil Parties in shaping the Co-Prosecutors' investigation, should it come to pass, would be an exciting turn of events. Rather than maintaining the Office of the Co-Prosecutors as the sole locus for selecting the direction of investigations, the voices of victims may actually have a role in determining the charges brought against defendants accused of mass atrocities. While a cynic might argue that it's the voices of the victims' lawyers, not the victims themselves, that are being heard, this potential inclusion of bottom-up input into the Khmer Rouge trials seems a step in the right direction.

Second, the transnational -- the Civil Parties grounded their request in a recent decision by the Appeals Chamber of the Special Court of Sierra Leone holding for the first time that forced marriage is a crime against humanity. While this precedent is obviously not binding on the ECCC, the Civil Parties' efforts to transport this new norm into the court's jurisprudence is an exciting horizontal development for internationalized criminal courts. As more courts accept new constructions of the definition of international crimes such as crimes against humanity from their peers, these new definitions will become an uncontroversial part of international criminal jurisprudence and even customary international law.

Third, the local -- the Civil Parties' submission is careful to distinguish between traditional Cambodian arranged marriages and forced marriage. Whatever one's view of arranged marriage, sensitivity to cultures that have traditionally embraced such unions seems appropriate, and may not have been present if the request for further investigations had been framed by individuals with less exposure to Cambodian society.

It is particularly striking to note that the vertical and horizontal expansion of dialogue in the ECCC could result in the cementing of a crime that's particularly gender-related. Though in Cambodia an estimated 400,000 men and women were victims of forced marriage, in most other instances (Sierra Leone, Rwanda, etc.), this is a crime perpetrated only against women. Adding it to the Co-Prosecutor's investigation would be a vital step in addressing the severe trauma inflicted by forced marriage and its resultant sexual crimes. Adding women's voices, and other voices that have too often been excluded, to international criminal prosecutions may just move the jurisprudence, from the bottom up, in a truly international direction.

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.