Wednesday, July 2, 2008

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.

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