Wednesday, August 8, 2012

Taylor Trial Judgment Analysis: Gender Issues

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

The Special Court for Sierra Leone has been very busy over the past few months. Our earlier posts covered the announcement of the judgment in the Charles Taylor case by Trial Chamber II on April 26, the subsequent release of the written judgment – at almost 2,500 pages – on May 18, and the sentencing of Taylor to a term of 50 years of imprisonment on May 30. He is appealing both the trial judgment and his sentence. The Prosecutor is also appealing. Taylor’s Notice of Appeal lists 45 grounds of appeal, and the Prosecutor’s Notice has listed four grounds of appeal.
In addition, on June 22, Justice Teresa Doherty convicted a former member of the Revolutionary United Front, Eric Koi Senessie, on eight out of nine counts of witness tampering. Senessie was convicted on four counts of offering a bribe to a witness, and on four counts of attempting to influence a witness, to recant testimony given in the Taylor trial. He was sentenced on July 5, receiving a two year term of imprisonment. Under the Rules of the Special Court, Senessie faced a maximum sentence of seven years of imprisonment, a fine of two million leones, or both. Senessie will serve his sentence at a detention facility on the Special Court premises in Freetown.
Over the past several weeks, many of us have been reading and analyzing the massive Taylor judgment. Today, and for the next two days, IntLawGrrls will be pointing out interesting aspects of that judgment. Today’s post focuses on how three specific gender issues were addressed in the Taylor trial judgment: first, sexual violence and the war crime of committing acts of terror; second, the introduction of the term ‘conjugal slavery’; and third, the recognition of aggravated outrages upon personal dignity.
► First, as I previously posted, the judgment contains a gender-sensitive analysis of the war crime of committing acts of terror.
Replicating the analysis found in the Revolutionary United Front (RUF) trial judgment, the Court held that sexual violence committed by the RUF, Armed Forces Revolutionary Council (AFRC) and affiliated fighting forces had the primary purpose of spreading terror, and was “deliberately aimed at destroying the traditional family nucleus, thus undermining the cultural values and relationships which held society together.” [para. 2034] It also found that sexual violence was committed in public as a deliberate tactic on the part of the perpetrators to spread terror among the civilian population, and was not merely a means of sexual gratification [para. 2036]. This war crime is not normally considered a gendered crime, but the Taylor judgment - like the RUF judgment - confirms that it can be committed through sexual means.
► Second, Trial Chamber II undertakes a very thought-provoking analysis of what had been previously termed ‘forced marriage’ as it occurred in the Sierra Leone armed conflict.

In the war, girls and women were targeted for capture or abduction, assigned to rebel commanders and soldiers, and subjected to ongoing rape and forced domestic labour such as cooking and cleaning. Their lives were characterized by physical and psychological abuse, and they were referred to as 'bush wives'. In the AFRC and RUF cases, the Prosecutor had charged the 'bush wife' phenomenon under the crime against humanity category of 'other inhumane acts'. While Charles Taylor was not charged with forced marriage as an inhumane act, the Prosecutor did introduce extensive evidence in his case of RUF, AFRC and other affiliated fighters forcibly taking ‘bush wives’, and Trial Chamber II took the opportunity to opine on the issue. The Trial Chamber began by stating that the Prosecutor erred in the AFRC and RUF cases in charging forced marriage under the category of inhumane acts [para. 424]. The Trial Chamber sees the term as a misnomer because there is no actual marriage: “The Trial Chamber does not consider the nomenclature of 'marriage' to be helpful in describing what happened to the victims of this forced conjugal association and finds it inappropriate to refer to their perpetrators as ‘husbands’” [para. 426].
In its view, the offence meant to be captured by the term ‘forced marriage’ has two main intertwined aspects: sexual slavery and forced labour in the form of domestic work [para. 424-425]. Thus, what has been referred to as ‘forced marriage’ is actually two different forms of enslavement imposed through forced conjugal association, which it refers to as ‘conjugal slavery’ [paras. 427-428]. It then analyzed the evidence under two categories: the evidence of ongoing rape and other forms of sexual violence was considered under the sexual slavery charge, and the evidence of forced domestic labour was considered under the enslavement charge. This approach is beneficial: the combination of the crimes against humanity of enslavement and sexual slavery does seem to be a better legal ‘fit’ for the acts intended to be captured by the term ‘forced marriage’. The narrower legal category of sexual slavery is not enough, as it cannot adequately capture the non-sexual aspects of being a 'bush wife'. That said, more thought needs to be given to considering whether the ‘slavery’ label has any drawbacks.
Third, the Taylor trial judgment contained a nuanced consideration of the war crime of outrages upon personal dignity. It considered that acts that would normally be recognized as outrages upon personal dignity could be aggravated by adding a public or additionally humiliating or degrading aspect to the commission of the prohibited act. Therefore, it found that acts such as sexual mutilation through insertion of objects into a victim’s vagina (like wood), forced undressing as a prelude to rape, and public humiliation combined with rape (such as rape in public, where neighbours, community members, or husbands, children or other family members are forced to watch) are forms of aggravated outrages upon personal dignity [para. 1196].
The Taylor trial judgment certainly helps to clarify and solidify international criminal law on several fronts: in its consideration of rape and sexual slavery as crimes against humanity, and in its discussion of the war crimes of outrages upon personal dignity and committing acts of terror. At the same time, it introduced key questions into the discussion of forced marriage/conjugal slavery (including 'what is the correct legal terminology?'), indicating that this issue requires future consideration and development in order to clarify the law. This IntLawGrrl certainly looks forward to delving further into these issues.

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