GENDER VIOLENCE OR VIOLENCE AGAINST WOMEN? THE TREATMENT OF FORCED MARRIAGE IN THE SPECIAL COURT FOR SIERRA LEONE Forced Marriage in Sierra Leone RACHEL SLATER* The article considers the case for viewing forced marriage, a prevalent form of violence suffered by women during the Sierra Leone conflict, as a gender crime. The article begins with a brief examination of the Special Court for Sierra Leone trials, commonly known as the Armed Forces Revolutionary Council Trial, the Armed Forces Revolutionary Council Appeal, the Revolutionary United Front Trial and the Charles Taylor Trial. Part IV then puts forward a conceptualisation of forced marriage as a gender crime and not purely violence suffered by women. It is argued that in order to fully reflect the nature of the harm suffered, the gender element of the violence must be foregrounded. This argument rejects calls for forced marriage to be viewed as enslavement or sexual slavery and emphasises the specific harm stemming from the label ‘wife’ as demonstrative of the force of socially assigned gender roles; these roles are integral to the crime rather than just forming the broader social context. This suggests that forced marriage as a gender crime should be seen as a stand-alone crime separate from other instances of forced marriage. In Part V and Part VI, it will be argued that the categorisation of forced marriage as a gender crime is a vital step towards the recognition of this type of gender violence as being within the scope of international law. Specifically, this article considers the characterisation of forced marriage under international criminal law in light of its interest to international refugee law, where similar violence might be raised as ‘persecution’ under the definition in art 1A(2) of the Convention relating to the Status of Refugees. CONTENTS I  Introduction .............................................................................................................. 2  II  The Context .............................................................................................................. 5  III  The Characterisation of Forced Marriage before the SCSL ...................................... 6  A  AFRC Trial ................................................................................................... 6  B  AFRC Appeal ............................................................................................... 8  C  RUF Trial ..................................................................................................... 9  D  Charles Taylor Trial ................................................................................... 10  IV  Forced Marriage as a Gender Crime ....................................................................... 11  V  Gender Violence ..................................................................................................... 17  VI  Interaction between International Criminal Law and International Refugee Law .. 28  A  Kunarac and Gender-Neutral Crimes ......................................................... 29  VII  Conclusion .............................................................................................................. 40  * BA (Hons), MA, GDL, Doctoral Candidate (University of Birmingham); Doctoral Affiliate of the Refugee Law Initiative (Human Rights Consortium, University of London). I would like to thank my supervisor, Dr Martin Borowski, for his assistance with all of my work. I am grateful to Professor Rob Cryer and the anonymous reviewers for comments on earlier drafts and to Dr Alex Standen along with the other organisers and participants of the ‘Roles: Interdisciplinary Gender and Sexuality Colloquium’, Birmingham University, Birmingham, 11 May 2012 (at which this paper was first presented). Thanks are also due to Tara Windsor and Leila Mukhida for many helpful discussions on the topic and for their ongoing support. Finally, I would like to thank my family for their constant support. This article, as with everything I do, is dedicated to them and to JML. 1 2 Melbourne Journal of International Law [Vol 13 I INTRODUCTION The trials, judgments and appeals heard before the Special Court for Sierra Leone (‘SCSL’) have attracted much interest on a range of issues — some supportive and some critical.1 The court was criticised for failing to address so-called ‘lower level’ violence but a limited mandate and restricted resources meant indictments were brought against only 13 senior members of the rebel forces and the former Liberian President, Charles Taylor.2 Concerns were also raised as to the pleadings of these crimes as joint criminal liability cases.3 However, amongst the most hotly debated issues was how to charge the endemic violence against women during the conflict partially because this was the first time such charges had attracted serious international judicial interest.4 Although the SCSL prosecutions of forced marriage had set a precedent in many ways, there remains considerable lack of clarity in defining and recognising forced marriage.5 This article considers the case for viewing forced marriage — a widespread form of violence against women during the conflict — as a gender crime. It suggests that it is not only accurate to label forced marriage in the context of Sierra Leone as a gender crime but it is also imperative to do so in order to confirm the status of gender violence in other related areas of international law. There is by no means universal agreement amongst those seeking greater action on gender violence and violence against women as to the utility of international law. However, the recognition of rape and sexual slavery as international crimes and the corresponding acknowledgment of rape as persecution under refugee law might be said to demonstrate that international law is capable of being a site for meaningful engagement in addressing violence against women.6 Yet, as will be explored below, despite all the progress made in recognising violence against women as within the scope of international criminal law,7 the place of gender violence remains arguably ambivalent, with much work to be done to establish gender violence as being appropriate for international legal concern. The prosecutions of forced marriage before the SCSL offered an arguably missed opportunity to clarify a key emerging area of international law concerning crimes influenced to a significant degree by the gender of the victim. 1 See, eg, Cecily Rose, ‘Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-Based Crimes’ (2009) 7 Journal of International Criminal Justice 353; Micaela Frulli, ‘Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a “New” Crime against Humanity’ (2008) 6 Journal of International Criminal Justice 1033. 2 Rose, above n 1, 355–7. 3 See, eg, ibid. 4 Ibid 367. 5 Ibid. 6 See, eg, Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) annex (‘Statute of the Special Court for Sierra Leone’) art 2(g) (‘SCSL Statute’). See also Valerie Oosterveld, ‘Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime against Humanity of Gender-Based Persecution’ (2006) 17 Duke Journal of Comparative & International Law 49. 7 Doris Buss, ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’ (2011) 11 International Criminal Law Review 409, 409. 2012] Forced Marriage in Sierra Leone 3 This article will demonstrate that forced marriage in Sierra Leone represents one such crime, with gender roles and inequalities forming an integral part of the crime. As such, this is part of the so-called ‘feminist project’ in international law, where international law is used to name and address the most serious manifestations of gender constructs and male dominance.8 Buss identifies four main aims of postwar feminist engagement with international criminal law: (i) to gain recognition of the ‘gendered and sexualised forms of harm experienced by women’ during armed conflicts; (ii) to establish links ‘between gendered and sexualised harm and the definitions of crimes under international law’; (iii) to situate wartime rape within the broader context of ‘peacetime’ inequality and violence against women which, Buss argues, shapes and makes possible much of the conflict violence against women; and (iv) to ensure that rape is a visible gendered crime.9 The first aim might be said to have been at least partially achieved by the charge of rape as a crime against humanity and as a form of genocide at the tribunals set up to address violence in Rwanda and the former Yugoslavia.10 Progress continues to be made with ongoing prosecutions, such as those before the International Criminal Court (‘ICC’) concerning Kenya.11 The second aim, discussed further below, remains controversial amongst feminists with some suggesting that gender harms ought not to be equated with other international wrongs but need to be established in their own right as violations of international 8 Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613, 615. 9 Buss, ‘Performing Legal Order’, above n 7, 412–13. This is not to say that the other aims have been entirely achieved. Rather, as the focus of this article is not on international criminal law per se but on the broader implications of characterisations of conduct as criminal under international law, the latter two aims are of particular note here. 10 SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Criminal Tribunal for Rwanda’) art 3(g) (‘ICTR Statute’); Prosecutor v Akayesu (Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) [417], [461], [507]–[508], [692], [696] (‘Akayesu Trial’); Alexandra A Miller, ‘From the International Criminal Tribunal for Rwanda to the International Criminal Court: Expanding the Definition of Genocide to Include Rape’ (2003) 108 Penn State Law Review 349, 363–6; SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc S/RES/1877 (7 July 2009) art 5(g) (‘ICTY Statute’). 11 See, eg, Prosecutor v Muthaura (Decision on the Prosecutor’s Application for Summonses to Appear) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09-02/11, 8 March 2011). Muthaura, Kenyatta and Ali faced five counts of crimes against humanity for violence, including widespread reports of rape, that occurred during January 2008 in the Republic of Kenya’s central rift region: at [13]. Similar proceedings are ongoing against those thought to be responsible for violence in the Democratic Republic of Congo: Prosecutor v Mbarushimana (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/10, 28 September 2010). For a comprehensive overview of recent international criminal prosecutions connected with gender violence, see generally Valerie Oosterveld, ‘Atrocity Crimes Litigation Year-In-Review (2010): A Gender Perspective’ (2011) 9 Northwestern University Journal of International Human Rights 325. 4 Melbourne Journal of International Law [Vol 13 law.12 This will ensure that women are not seen as inevitable victims of gender violence while still ensuring that gender violence is identified and addressed. This article takes up the latter two aims with regard to forced marriage and seeks to contribute to a growing body of scholarship addressing the judicial treatment of forced marriage by the SCSL, focusing in particular on the implications for international refugee law. Recent cases ‘point to a continuing theme within international criminal law: while there is ever increasing awareness and knowledge of the role of gender in the commission of atrocities, there are also lingering misconceptions’.13 There is, then, still much work to be done in clarifying the position of gender violence in international law. This article will address the issue of how to conceptualise forced marriage as a gender crime. Part III will examine briefly Prosecutor v Brima (‘AFRC Trial’),14 Prosecutor v Sesay (‘RUF Trial’),15 Brima v Prosecutor (‘AFRC Appeal’)16 and the recent judgment against Charles Taylor in Prosecutor v Taylor (‘Charles Taylor Trial’),17 where the issue of forced marriage was raised and considered by the SCSL. Part IV will then put forward a conceptualisation of forced marriage as a gender crime. In Part V, It will be argued that the gender dimension of forced marriage is integral to the characterisation of the crime. This argument rejects calls for forced marriage to be viewed as enslavement or sexual slavery and seeks to emphasise the specific harm stemming from the label ‘wife’, as demonstrative of the force of socially assigned roles and power inequalities between the genders. In Part VI, it will be argued that an additional benefit of categorising forced marriage as a gender crime is the applicability of this approach to other areas of international law, specifically international refugee law, where similar violence might be raised as ‘persecution’ under the definition in art 1A(2) of the Convention relating to the Status of Refugees (‘Refugee Convention’).18 12 See, eg, Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights’ (1990) 12 Human Rights Quarterly 486; Hilary Charlesworth, ‘Human Rights as Men’s Rights’ in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives (Routledge, 1995) 103, 110–11. Chinkin argues that feminist progress in engaging international law has so far only achieved an ‘“add women and stir” approach that does not demand any radical rethinking of programmes or gender-awareness’: Christine Chinkin, ‘Feminist Interventions into International Law’ (1997) 19 Adelaide Law Review 13, 18. The concern is that human rights and international crimes are defined by men and, as Charlesworth argues, ‘defined by the criterion of what men fear will happen to them’: Hilary Charlesworth, ‘Women and International Law’ (1994) 9 Australian Feminist Studies 115, 112. 13 Oosterveld, ‘Atrocity Crimes Litigation’, above n 11, 328. 14 (Judgment) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) (‘AFRC Trial’). 15 (Judgment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) (‘RUF Trial’). 16 (Judgment) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) (‘AFRC Appeal’) 17 (Judgment) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-03-01-T, 18 May 2012) (‘Charles Taylor Trial’). 18 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’). 2012] Forced Marriage in Sierra Leone 5 II THE CONTEXT In 1991, war broke out in Sierra Leone when a rebel group, the Revolutionary United Front (‘RUF’), entered the country from Liberia.19 The war went on with increasing brutality until peace was finally declared in January 2002.20 The estimated death toll reached 70 000 and no area of the country was left untouched but the fighting and brutality was especially heavy in rural regions concentrated around the diamond mining areas in the east.21 During this civil war, forced marriage was rife, to the extent that the ‘concept of women being “taken as wives” was well-known and understood’.22 Women and girls captured or abducted during the conflict could be chosen as ‘wives’ by male combatants — most markedly by those commanding or fighting for the RUF and the Armed Forced Revolutionary Council (‘AFRC’).23 In what were known as ‘bush marriages’, although rarely formalised, women were considered to be ‘wives’ of the combatant who had ‘chosen’ them and could then be forced to do as their ‘husbands’ wished.24 ‘Bush wives’ were forced to cook and clean for male combatants and were subjected to frequent sexual violence, rape and forced pregnancies.25 Girl soldiers were also required to take on domestic and sexual tasks alongside their role as combatants and were subject to brutality by male soldiers throughout the conflict.26 The widespread experience of forced marriages and violence against women was not unique to Sierra Leone.27 The Statute of the Special Court for Sierra Leone (‘SCSL Statute’) gave prosecutors unprecedented capacity to tackle violence against women as it not only covered rape, as the Statute of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY Statute’) and the Statute of International Criminal Tribunal for Rwanda (‘ICTR Statute’) had 19 RUF Trial (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) [12]. 20 Ibid [44]. 21 Ibid [45]–[46]. See also Mary Kaldor and James Vincent, ‘Case Study: Sierra Leone — Evaluation of UNDP Assistance to Conflict-Affected Countries’ (Report, United Nations Development Programme, 2006) 4. 22 RUF Trial (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) [1295]. 23 Rose, above n 1, 367. 24 Karine Bélair, ‘Unearthing the Customary Law Foundations of “Forced Marriages” during Sierra Leone’s Civil War: The Possible Impact of International Criminal Law on Customary Marriage and Women’s Rights in Post-Conflict Sierra Leone’ (2006) 15 Columbia Journal of Gender and Law 551, 552. 25 Ibid 554–6. 26 Female soldiers did, however, also take part in the fighting, making the victim/perpetrator line blurred in a way often unacknowledged: Chris Coulter, Bush Wives and Girl Soldiers: Women’s Lives through War and Peace in Sierra Leone (Cornell University Press, 2009) 126. This article focuses only on the experiences of ‘bush wives’ and women forced into marriage with rebel soldiers as addressed by the Special Court of Sierra Leone (‘SCSL’). This article acknowledges that viewing these women solely as victims might be seen as creating a problematic dichotomy between male perpetrators and female victims as well, as it arguably denies the agency women did show during the conflict. However, further exploration of these issues is beyond the scope of this article. 27 Forced marriage reportedly arose from conflicts across Africa, specifically in Rwanda, Mozambique and Uganda: Bridgette A Toy-Cronin, ‘What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime against Humanity’ (2010) 19 Columbia Journal of Gender and Law 539, 557–61. 6 Melbourne Journal of International Law [Vol 13 done,28 but also sexual slavery, enforced prostitution, forced pregnancy and ‘any other form of sexual violence’.29 This allowed for a greater range of options in charging the defendants for the violence suffered by women during the conflict. The charges of rape and sexual violence had clear precedent to follow created by the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) in the much discussed case of Prosecutor v Kunarac (‘Kunarac’).30 However, the use of the term ‘wife’ for captured women and the domestic nature of the arrangement, in many cases, added new elements to the character of violence against women during the conflict in Sierra Leone not seen during the Yugoslavian conflict or addressed by previous international criminal tribunals. On this issue, precedent was far from clear. Indeed, there was little consensus on the correct label and, therefore, the charges for the crimes.31 III THE CHARACTERISATION OF FORCED MARRIAGE BEFORE THE SCSL The following section will briefly outline the AFRC Trial, the RUF Trial, the Charles Taylor Trial and the AFRC Appeal concerning the characterisation of forced marriage. A AFRC Trial In the first set of indictments heard by the court in the AFRC Trial, the focus was on the issues of forced marriage, sexual slavery and sexual violence. Forced marriage was not listed as a separate prohibited act under the SCSL Statute. The long-term, multifaceted nature of the abuse — including physical, mental and sexual violence as well as general repression and control — meant that these forced marriages do not fit easily within the paradigm built by the International Criminal Tribunal for Rwanda (‘ICTR’) and the ICTY for addressing violence against women. The paradigms created by the ICTR and the ICTY focused predominantly on short-term sexual violence.32 The combination of sexual and non-sexual, violent and nonviolent derogations inherent in forced marriage 28 ICTY Statute art 5(g); ICTR Statute art 3(g). 29 SCSL Statute art 2(g) specifically includes ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence’ as crimes against humanity and art 3(e) lists ‘[o]utrages upon personal dignity’, including rape, as war crimes. 30 (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001) (‘Kunarac’). 31 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [701]–[707]. For the differing opinions on the labelling of forced marriage, see at [14]–[15], [46]–[71] (Judge Doherty); [1]–[7], [16]–[18] (Judge Sebutinde). 32 Although Kunarac contained instances of longer-term abuse, this was not considered as forced marriage; the label ‘wife’ being used neither formally or informally. The International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) had prosecuted Bosnian Serb military leaders and some individual soldiers for repeated rape and detention of Muslim women and men in Kunarac but this was not labelled sexual slavery; instead it was characterised as enslavement under art 5(c) of the ICTY Statute: Kunarac (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001) [515]–[543]. For detailed discussion, see Patricia Sellers ‘Wartime Female Slavery: Enslavement?’ (2011) 44 Cornell International Law Journal 115, 125–7. See, eg, Prosecutor v Katanga (Decision on the Confirmation of Charge) (International Criminal Court, Pre-Trial Chamber I, ICC-01/ 04-01/07-716-Conf, 26 September 2008) for the use of the category ‘any other inhumane act’. See also M Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press, 2011) 410. 2012] Forced Marriage in Sierra Leone 7 presented a challenge to the SCSL prosecutors and judges in conceptualising ‘bush marriages’ and other instances of forced marriage during the conflict.33 The prosecutors began by deciding to charge the conduct as a crime against humanity under the category of ‘any other inhumane act’, which had previously been used by the SCSL and other courts as a veritable ‘catch-all’ including conduct as varied as public marching of women and forced disappearances. As forced marriage was not an already recognised international crime, in order to bring it within the category of crimes against humanity the SCSL prosecutors had to demonstrate that forced marriage constituted ‘other inhumane acts’ by fulfilling the criteria of the SCSL Statute.34 This required prosecutors to demonstrate four elements: (i) great suffering inflicted by means of the inhumane act; (ii) similarities in character to other crimes against humanity; (iii) a nexus between the enumerated act and broader widespread and systematic violence; and (iv) the need to create a new, distinct category of crime. Forced marriages during the conflict uncontroversially established elements one to three both conceptually and evidentially — great suffering had been inflicted on women chosen as ‘wives’ and the constitutive parts of forced marriage were already recognised as crimes under customary international law.35 In addition, the sexual violence and slavery elements had been prosecuted as crimes against humanity in the ICTY and ICTR.36 The legal foundations for forced marriage of this type as a crime against humanity are thus irrefutable.37 However, the fourth element required something beyond this conceptualisation of forced marriage as a crime against humanity; the SCSL prosecutors had to demonstrate to the court that, as a practical matter, forced marriage contained something distinct in order to justify a new category of crime.38 The Trial Chamber judges felt that the prosecutors had failed to prove this, concluding 33 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [701]–[707]. For the differing opinions on the labelling of forced marriage, see at [14]–[15], [46]–[71] (Judge Doherty); [1]–[7], [16]–[18] (Judge Sebutinde). 34 SCSL Statute art 2(i). 35 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [224]–[239]. 36 Kunarac (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23/T and IT-96-23/1-T, 22 February 2001) [4]–[11]; Akayesu Trial (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) [270]. 37 In addition, forced marriage prosecution also cannot be said to violate the principle of nullum crimen sine lege or of retroactivity as the constitutive parts were clearly criminal and unequivocally a part of international law and individual criminal responsibility since the case law of the ICTY and the International Criminal Tribunal for Rwanda (‘ICTR’). Thus, the perpetrator cannot escape prosecution on the basis that the act(s) was/were not recognised as a crime at the time it was committed: see, eg, Kunarac (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96- 23/1-T, 22 February 2001) [436]–[592]; Akayesu Trial (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) [638]–[744]. 38 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [703]; Prosecutor v Brima (Decision on Prosecution Request for Leave to Amend the Indictment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-16-PT, 6 May 2004) [16]. 8 Melbourne Journal of International Law [Vol 13 instead that the treatment being characterised as forced marriage was subsumed in the crime of sexual slavery: Forced [m]arriage is in fact what we would like to classify, as a ‘kindred offence’ to those that exist in the consolidated indictment [ie rape, sexual slavery and other forms of sexual violence] in the view of the commonality of the ingredients needed to prove offences of this nature.39 Sexual slavery, in turn, was brought under the category ‘outrage upon personal dignity’.40 This placed forced marriage firmly in the category of ‘sexual crime’. The prosecutors and judges in the Trial Chamber did little more than nod towards the non-sexual elements of the prohibited conduct; instead, ‘a strong focus on the sexual aspect’ was maintained.41 Indeed, the majority concluded that the charge of forced marriage was ‘completely subsumed’ by the crime against humanity of sexual slavery.42 No further explanation for this conclusion was given. At first glance, there is considerable overlap between the crimes of sexual slavery and forced marriage. The two central elements of the crime of sexual slavery are: (i) the exercise of powers associated with a right to ownership of another person, involving a deprivation of liberty; and (ii) causing the person to engage in one or more acts of a sexual nature.43 The crime of forced marriage undoubtedly features these elements but it is by no means only limited to them, which was entirely overlooked by the Trial Chamber. The judgment of the Trial Chamber has attracted much criticism particularly in the AFRC Appeal, which held that forced marriage was a distinct crime.44 B AFRC Appeal The Appeals Chamber criticised the majority opinion for conflating sexual slavery and forced marriage and emphasised the non-sexual aspects of forced marriage, such as forced domestic labour and forced migration.45 The Appeals 39 Prosecutor v Brima (Decision on Prosecution Request for Leave to Amend the Indictment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-16-PT, 6 May 2004) [52]. 40 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [718]–[722]. The charges were initially brought under art 2 of the SCSL Statute, rather than art 3 (relating to ‘outrages against personal dignity’). The pleadings, therefore, initially equated forced marriage with sexual slavery but evidence was not heard on this as the sexual slavery charges were found to have been defectively pleaded and the charges were then heard under art 3. 41 Valerie Oosterveld, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’ (2011) 44 Cornell University Law Journal 49, 51. 42 AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007) [713]. 43 See generally Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25 Michigan Journal of International Law 605. 44 AFRC Appeal (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) [195]. 45 Ibid [190]. 2012] Forced Marriage in Sierra Leone 9 Chamber, picking up on the arguments made by Doherty J in her dissenting judgment, concluded that ‘no tribunal could reasonably have found that forced marriage was subsumed in the crime against humanity of sexual slavery’.46 The Appeals Chamber concluded that forced marriage was an inhumane act as it caused severe suffering and injury and that the label of ‘inhumane act’ adequately reflected the nature of the crime.47 Although the Appeals Chamber declined to enter fresh convictions on this count,48 the judgment contained some interesting observations on the nature of forced marriage and arguably adopted a gendered approach that would be of benefit to international law in general.49 In particular, the Appeals Chamber focused on the harm stemming from the label ‘wife’ and that stemming from the forced conjugal duties associated with forced marriage that separated this prohibited conduct from sexual slavery.50 The Appeals Chamber approach seemed to draw on the prosecutorial argument in the Trial Chamber that the word ‘wife’ signifies a ‘rebel’s control over a woman’.51 The use of the term ‘wife’ suggests ‘control over a woman’ because even in peacetime Sierra Leone, ‘wives’ are considered to be in a subordinate position.52 Whilst the AFRC Trial and the AFRC Appeal provide descriptions of conduct amounting to forced marriage in the context of the conflict in Sierra Leone, they provide little general guidance or principles that could clearly be applied in other contexts. C RUF Trial The RUF Trial saw indictments entered for a range of crimes against women. The defendants were charged variously with rape as a crime against humanity, sexual slavery as a crime against humanity, the crime against humanity of other inhumane acts — specifically forced marriage — and outrages against personal dignity as a violation of Common Article 3 of the Geneva Conventions.53 From the outset, then, forced marriage was raised under the heading of ‘other inhumane acts’ and the court focused on whether the elements of forced marriage could be said to fulfil the definition of an inhumane act. It did not, therefore, consider the definition of forced marriage per se. Charges of rape and sexual slavery were brought separately, with the actus reus of slavery defined as: 46 Ibid [195]. 47 Ibid [197]–[203]. 48 Ibid [202]. 49 Ibid [190]–[195]. 50 Ibid [190]–[193]. 51 Ibid [192]–[195]. 52 For the notion that ‘a married woman belongs to the husband’ even outside of the conflict, see Coulter, above n 26, 80 (emphasis in original). 53 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (collectively, ‘Geneva Conventions’). 10 Melbourne Journal of International Law [Vol 13 (i) that the accused exercised any or all of the powers of ownership over the person or persons; and (ii) that the enslavement involved sexual acts.54 Although sexual slavery was tried as a separate crime, the Trial Chamber did note that forced marriages involved instances that would have fallen within the scope of sexual slavery.55 They concluded that forced marriage involved ‘similar deprivation of liberty’ to those physically confined and also included specific acts such as forced drug taking in order to exercise control, which could be seen as a form of enslavement.56 The Trial Chamber also linked forced marriage and sexual slavery with the separate charges of committing acts of terrorism brought against the defendants.57 Although the RUF Trial might be said to repeat some of the misapprehensions of the AFRC Trial in charging forced marriage as a form of enslavement, it also contained some recognition of the distinctions between the two types of conduct, even if these were not sufficient in the eyes of the court to warrant a separate charge.58 In particular, the Trial Chamber recognised that the distinction between forced marriage and these other related crimes was the use of the term ‘wife’ and the exclusive relationship this term conveyed.59 D Charles Taylor Trial Finally, the trial of former President Taylor also contained charges relating to violence against women during the conflict.60 The Trial Chamber found that rape of women and girls during the conflict had been widespread and that it was also perpetrated by Liberian forces.61 Further, the prosecution succeeded in proving that the RUF, the AFRC and Liberian fighters committed widespread acts of sexual slavery against civilian women and girls.62 Taylor was found to be criminally responsible under art 6(1) of the SCSL Statute for aiding and abetting such conduct.63 Although Taylor was not charged with forced marriage specifically, the issue of how to categorise forced marriage was raised once again in the judgment of the Trial Chamber.64 The Trial Chamber found that forced marriage ‘constitutes 54 RUF Trial (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) [159]. These criteria stemmed from Kunarac (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001) [543] discussed below. 55 RUF Trial (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) [1464]. 56 Ibid [158]. 57 Ibid [1352]. 58 See generally ibid. See also AFRC Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T, 20 June 2007). 59 RUF Trial (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) [1466]. 60 Charles Taylor Trial (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-03-01-T, 18 May 2012) [124]. 61 Ibid [12]: see Count 4 of the charges brought. 62 Ibid: see Count 5 of the charges brought. 63 Ibid [149]. 64 Ibid [422]–[430]. See also Prosecutor v Taylor (Prosecution Opening Statement) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-2003-01-T, 4 June 2007) 304, where the Prosecutor stated: