Forced Relationships: Prosecutorial Discretion as a Pathway to Survivor-Centric Justice

[Andrea Raab is a graduate of the University of Oxford and has worked at Women’s Initiatives for Gender Justice as well as the UN International Residual Mechanism for Criminal Tribunals. Siobhan Hobbs is the Legal and Programme Director at Women’s Initiatives for Gender Justice.]

The opening of the Al Hassan case before the ICC earlier this year has the potential to re-ignite the debate surrounding the appropriate legal characterisation of forced relationships. Discourse has thus far centred on whether forced relationships are best qualified as sexual slavery, forced marriage as an other inhumane act, enslavement, or whether the Rome Statute ought to be amended to include a distinct crime of forced marriage. Yet, what has not been sufficiently explored in these discussions is the utility of, and tools available for, instilling survivors’ perspectives into this legal categorisation of forced relationships. 

The qualification of forced relationships as slavery or, somewhat problematically, forced marriage may have profound impacts on survivors, especially if the superimposed crime label does not match the survivors’ own perceptions, which may lead survivors to consider that justice was not rendered and that they cannot identify with the judgment. This, in turn, may obstruct their healing and recovery from the wide array of physical, mental, and emotional harms and consequences flowing from conflict-related forced relationships. These impacts may increase over time and be most severe for survivors when trying to reintegrate or return to a normal life in society. The situation of Ugandan survivors epitomises this: considered as having “liaised with the enemy” as a result of the domestic nature of the tasks the survivors were required to perform, the exclusivity of the forced relationship with the perpetrator, as well as the perpetrators’ perception of the women as “wives” (see eg Ongwen CoC Decision, para 111), some survivors and their children from the forced relationship have been ostracised and stigmatised by their communities. As such, some survivors have been left to recover and provide for children born during the forced relationship on their own, and are often considered ineligible for marriage or face divorce from their pre-conflict marriage. The categorisation and realities of forced relationships further have profound impacts on the lives of the children from forced relationships: In Uganda, they cannot be registered due to lack documentation of the “father”, which exacerbates inaccessibility and ineligibility to services and rights such as higher education and land rights. These direct and indirect impacts on children can lead to transgenerational harm and aggravated inequality. In situations like these, conflict-related forced relationships thus perpetuate structural gender inequalities, compounding patriarchal societal norms and a conservative construction of a woman’s roles in society and the home.

By contrast, and based on a perception of victimisation by sexual slavery, Baba Sheik, the senior religious leader of the Yazidis, has welcomed survivors back into the community with honour. This embrace seems to be propelled by ISIS’s characterisation and treatment of the captured Yazidi women and girls as slaves and chattel, including the repeated selling of female captives among the group’s fighters. Moreover, the assaults on women and girls are seen by the Yazidis as acts of violence against the group in furtherance of a strategy of genocide, rather than against females as individuals alone. As Nadia Murad indicates, many survivors struggle to reconcile their experiences with the tenets of the Yazidi religion, which prohibits intercourse before marriage, and prescribes that Yazidis may only enter into relationships with other Yazidis. As a result, the categorisation of the forced relationships as slavery, and the connotations of involuntariness and coercion attaching to the notion of slavery, may also play an important role in individual and the community’s recovery processes, and deviating from it may prove detrimental.

Beyond the impacts on the survivors themselves, deviating from the survivors’ views may also negatively affect reconciliation efforts, as it may leave survivors and their communities to consider that these harms remained insufficiently addressed, potentially inhibiting peace processes and/ or preventing full participation in peace processes leading to festering frictions between groups. Moreover, bypassing survivors and administering justice removed from the survivor’s realities may finally also jeopardise the Court’s own legitimacy in leaving its wider audience to ask who justice is administered for, and whether the Court renders justice in a manner contributing to reconciliation.

International jurisprudence, recent and dated alike, affords the flexibility necessary to transpose and incorporate survivors’ perceptions into the legal characterisation of forced relationships, holding that forced relationships may come within the ambit of both the crimes of slavery and other inhumane acts, depending on the circumstances.

With the notable absence of prosecutions before the ICTR despite reports of forced relationships during the Rwandan genocide, the SCSL became the first international criminal tribunal to consider forced relationships. The Trial Chamber in Brima et al. by majority held that forced relationships fell within the scope of the crime of sexual slavery, reasoning, inter alia, that “[…] the use of the term “wife” by the perpetrator in reference to the victim is indicative of the intent of the perpetrator to exercise ownership over the victim, and not an intent to assume a marital or quasi-marital status with the victim in the sense of establishing mutual obligations inherent in a husband wife relationship” (para 711). The Appeals Chamber overturned the Trial Judgment in this respect, holding forced relationships in Sierra Leone came within the ambit of the crime of other inhumane acts, as victims were forced into a conjugal association not of a predominantly sexual nature (paras 187-196). The Appeals Chamber did not, however, exclude that in different circumstances, forced relationships may give rise to sexual slavery.

The ICC has adopted this flexible approach: In Katanga and Ngudjolo, the Pre-Trial Chamber held that “sexual slavery also encompasses situations where women and girls are forced into ‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors” (para 431). The Pre-Trial Chamber in Ongwen considered that forced marriage may per se come within the ambit of the crime of “other inhumane acts”, and is hence distinct from sexual slavery (paras 91-95). The Judges did not, however, exclude that forced marriage may also give rise to sexual slavery, depending on the circumstances. Rather, the Pre-Trial Chamber found that forced relationships in Uganda gave rise to both crimes (see paras 116-119).

Recent atrocities in Mali bring the issue of forced marriages again before ICC. In Timbuktu, as the town was under the control of two fundamentalist Islamic groups, Ansar Dine and Al Qaeda in the Islamic Maghreb, between January 2012 and April 2013, women and girls were subjected to a veritable policy of forced relationships, referred to as “marriages” by the groups. UN reports on the situation in Mali at the time were replete with cruel details of forced relationships, describing how women and girls were “often ‘married’ to several rebels in camps, where they are gang-raped every night and then abandoned after a swift divorce.” In the arrest warrant for Al Hassan issued in March 2018, a Pre-Trial Chamber considered that forced relationships in this context gave rise to both forced marriage as “other inhumane act” and sexual slavery (para 9).

Going forward, this flexibility ought to be built on and utilised to factor survivors’ perspectives into the legal characterisation of forced relationships. The assessment of the circumstances giving rise to either the crime of other inhumane acts or sexual slavery has thus far been characterised by a perpetrator-centric approach. In Brima et al., the Trial Chamber analysed the use of the term “forced wife” by the perpetrator, without expressly considering the survivors’ stance. In establishing the elements of the crime of other inhumane acts, the Appeals Chamber noted that being labelled a “forced wife” by perpetrators subjected survivors to mental trauma (para 193), but did not contemplate any long-term consequences of their judicial determination to the same effect. Along similar lines, the ICC found the “imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s ‘wife’” determinative (Ongwen CoC para 93), rather than the survivors’ perceptions. That, as outlined above, survivors’ perceptions often appear to be informed by the perpetrators’ views does not render circumventing survivors’ agency defensible: not only may their perceptions, and the underlying reasoning change over time, but it is arguably unprincipled to disregard survivors’ views on that basis.

As judges are generally bound by the confines of the indictment, the Prosecution is ascribed a key role in engendering a survivor-centric approach to justice, and instilling survivors’ perceptions into the legal process—and prosecutorial discretion provides it with the necessary tools to do so. In the first place, the Prosecution should adduce evidence for and initially charge all relevant crimes. While we have seen this multiple charging both in Ongwen and thus far in Al Hassan, it is paramount that the Prosecution go even further and allow its prosecutorial strategy to be guided by survivors’ perceptions and agency during the trial: it ought to accommodate survivors’ perspectives as necessary by dropping charges not, or no longer, reflecting their perceptions.

As cumulative charging has been practiced before and endorsed by other international tribunals (see the seminal Celebici judgment, para 400), such approach does not place any additional burden on the defence. It rather paves the way to administering survivor-centric justice, responsive to the realities facing survivors, and cognisant of the broader impacts and effects of international criminal justice.