Thursday, October 09, 2008

Forced Marriage is a Crime Against Humanity

We have just read the appeal judgment of the Appeals Chamber of the Special Court for Sierra Leone in a case entitled Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu

For international family lawyers the judgment is significant in that the court ruled that forced marriage constitutes a crime against humanity.

The case arose out of a coup d’etat in Sierra Leone in 1994, spearheaded by the three defendants who were the leaders of the “Armed Forces Revolutionary Council,” which led to horrific atrocities.

The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

The Court’s Trial Chamber had convicted the defendants of crimes against humanity, war crimes, and other serious violations of international humanitarian law, but had dismissed charges arising out of evidence of mass forced marriages. The reason for the dismissal was that the Prosecutor had not demonstrated that forced marriage was a non-sexual crime, and was different from the crime of sexual slavery.

On appeal, the Appeals Chamber focused on other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands". The court ruled that:

“The trial record contains ample evidence that the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage.” … The Trial Chamber findings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks. A “wife” was exclusive to a rebel “husband,” and any transgression of this exclusivity such as unfaithfulness, was severely punished. A “wife” who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.”

The Appeals Chamber determined that forced marriage is a crime against humanity under the Nuremberg Charter, which lists several specific crimes against humanity and then, in Article 6(c), includes "Other inhumane acts" as a residual provision intended to punish acts that are comparable in nature.

The Chamber defined “forced marriage” as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”

It concluded that “society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and 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.”