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]