Sierra Leone - Forced Marriage Appeal May Influence ICC
Appeal against forced marriage acquittals at Special Court for Sierra Leone
might have bearing on ICC prosecutions.
By Katy Glassborow in The Hague (AR No. 123, 24-July-07)
The chief
prosecutor for war crimes in Sierra Leone is preparing to appeal the acquittals
of three military leaders accused of forcing women into marriage, in a move that
he hopes could help bring convictions on similar charges at the International
Criminal Court.
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 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.