Sierra Leone: Forced marriage appeal may influence the ICC

On June 20, the Special Court for Sierra Leone, SCSL, found Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu guilty of war crimes and crimes against humanity including murder, rape, sexual slavery and conscripting child soldiers. On July 19, Brima and Kanu were sentenced to 50 years in prison, while Kamara received 45 years.

But the trial judges said they saw no need to treat forced marriage as a crime separate to sexual slavery, and threw out the charges. Such charges had never before been tried at an international tribunal.

Chief Prosecutor Stephen Rapp will appeal this decision, which he called “formulistic”, on August 2. He told IWPR [Institute for War and Peace Reporting, ed.] that the charge of forced marriage accurately described the experience of women who were kidnapped by the Armed Forces Revolutionary Council, AFRC, a militia made up of government soldiers who joined up with the rebel Revolutionary United Front, RUF, to fight the government-backed Civil Defence Forces, CDF.

The conflict lasted 11 years and claimed tens of thousands of lives and displaced millions. Attacks were carried out against civilians to terrorise and punish those who didn't support the rebels, with physical mutilations, including the amputation of hands and feet, a common feature of the conflict. Civilians were routinely abducted, and captured women were raped and used as sex slaves or forced labourers - an experience prosecutors said comprised a distinct inhumane act of forced marriage. Rapp identified a "reluctance to convict this crime which has never been pleaded before at an international level".

Just as the charge indicates, forced marriage occurs by force and without the consent of the women concerned, their parents or the community, and Rapp had intended to prosecute it as a crime against humanity. He will appeal the judges' logic that despite evidence of sexual slavery, the indictments - which include counts of both sexual slavery and other forms of sexual violence - were overlapping.

Trial judges said the prosecutor's evidence was "completely subsumed by the crime of sexual slavery and that there is no lacuna in the law which would necessitate a separate crime of forced marriage as another inhumane act”. They said that the count of “sexual slavery and any other form of sexual violence” is "bad for duplicity", so in the interests of justice elected to consider evidence of sexual slavery under the count of “outrages upon personal dignity”.

Despite the legal loopholes and technicalities, the sad fact is that sex crimes and crimes of sexual violence are often pervasive in conflict and examples of rape and sexual slavery as a weapon of war or a tool of ethnic cleansing have a long history. Rape and sexual slavery feature in cases at the ICC, including the insurgency in Uganda, the conflict in the Darfur region of Sudan, the failed military coup in the Central African Republic and the inter-ethnic fighting in the Democratic Republic of Congo. Indeed, the founding statute of the ICC formally criminalises a whole tranche of sex crimes used as a tool in conflict, such as enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity, for the first time in international law.

Despite this leap forward in the recognition of sexual war crimes, international prosecutions of such acts have only occurred in the recent past at the UN backed International Criminal Tribunals for Rwanda and the former Yugoslavia. But Rapp says they were invariably prosecuted as rape, and argues that the experience of women in conflict is often a lot more complex. He argues that forced marriage should not be viewed unequivocally as a sex offence.

Women who were kidnapped and forced into sexual slavery for troops during the Japanese occupation of Korea in World War II are often referred to as “comfort women”, but Rapp insists that the experience of “bush wives” in Sierra Leone was unique. "They were conscripted into a marital relationship, with all that that entails, which is more than being a comfort woman or a rape victim," he told IWPR.

This is why SCSL prosecutors were so keen to prosecute this charge as an inhumane act in the first place, and will now appeal the not-guilty verdict. "We talked to women who still feel tied to their ‘husbands’, even after the conflict has ended," said Rapp.

But judges found the men guilty for sexual slavery and orchestrating forced sex on a continuing basis, as opposed to something broader encompassing ways women were made into wives, like cooking and caring for their kidnappers in a relationship akin to a forcibly-imposed civil marriage. "In the context of a widespread and systematic attack against the civilian population, voluntary consent was rendered impossible," said Rapp. However, he told IWPR that proving the ways women were abused or compelled to perform “marital” services wasn’t the focus of witness testimonies, so judges thought it possible to encompass this experience within the umbrella of sexual slavery. The chief prosecutor also argues that being conscripted into a marital relationship causes psychological damage, and that the particular ways in which the rights of women are violated goes beyond pure sexual violence. "This is why we wanted to have forced marriage recognised as a crime that took place in Sierra Leone, and we will continue to try to have this recognised beyond this appeal," said Rapp.

Judges found that the motivator in the relationships between soldiers and kidnapped women was sexual, and therefore overwhelmingly a situation of the women being exclusive sex slaves. Rapp said that if another man had taken one of these women away, it would have been seen as a violation of the “owner’s” rights. "We saw that as an aspect of forced marriage," said Rapp, "but the judges saw this as an exclusive form of sexual slavery.”

The trouble is that rape and sexual slavery are crimes clearly set out in the statutes of both the SCSL and the ICC, while forced marriage is not explicitly listed as a crime under either statute but can be charged as an inhumane act. International law relating to war crimes provides that if other acts occur in connection to a widespread and systematic attack against civilians, which constitute a crime against humanity and are of equal gravity to other offences under the statute, they can be charged.

"I think the judges left it open that if you have proof of criminal activity that goes beyond sexual slavery that fits within the context of other obligations that arise out of marriage, there could still be a conviction on that count," said Rapp. He is hopeful that a successful appeal would make it possible for forced marriage to be prosecuted in other conflicts where the crime occurs. Sexual slavery and other forms of sexual violence are crimes under the ICC's statute, so Rapp says the prosecution and appeal at the AFRC will guide investigators and prosecutors at the ICC in how to pursue these charges.

The AFRC trial could set a precedent enabling war crimes tribunals to deal with other horrendous acts which cannot specifically be foreseen in the chaos of conflict, but of equal gravity to crimes already listed under other inhumane acts. If SCSL judges hold that on appeal, the crime of forced marriage can be prosecuted, Rapp feels this may have a bearing on the ICC. "We have seen that the tribunals do not slavishly follow each other, but find each others decisions highly persuasive," said Rapp.

By: Katy Glassborow (IWPR)

24 July 2007