SCSL Symposium: The Special Court for Sierra Leone–Instigating International Criminal Law’s Consideration of Forced Marriage

[Valerie Oosterveld is a Professor at theUniversity of Western Ontario Faculty of Law (Canada) and member of the Canadian Partnership for International Justice. The author wishes to thank the Social Sciences and Humanities Research Council of Canada for its research support. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.]

The Special Court for Sierra Leone (SCSL) adopted a significant new legal approach when it investigated, prosecuted and convicted individuals for forced marriage as a gender-related violation of international criminal law. In The Legal Legacy of the Special Court for Sierra Leone, Prof. Charles Jalloh discusses how the SCSL addressed the situation of Sierra Leonean ‘bush wives’ – girls and women who were held in captivity during the civil war, “without consent or choice”, and assigned to serve, sexually and through domestic work, their soldier ‘husbands’. The SCSL’s Prosecutor investigated and prosecuted the violations committed against ‘bush wives’, categorizing them as the crime against humanity of ‘other inhumane acts’. As part of this process, the Office of the Prosecutor consulted with former ‘bush wives’, who indicated that they wanted the crime to be labelled ‘forced marriage’, as they felt that this term accurately described the harms they suffered (see here for more information about this consultation). The SCSL’s Appeals Chamber, in the Armed Forces Revolutionary Council (AFRC) case, defined forced marriage as “a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim.” This definition, and the SCSL’s subsequent analysis of – and convictions for – forced marriage in the Revolutionary United Front (RUF) case, have had a significant and lasting impact on the understanding of forced marriage under international criminal law (for international criminal law jurisprudence in this area see here and here. For more analysis of this issue see here, here, here, and here).

The SCSL’s recognition of forced marriage as a violation of international criminal law subsequently prompted two significant developments within the field. First, it led to the prosecution of forced marriage as an international crime in the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC). Second, it led to introspection within the international criminal law community, creating a deeper understanding of the harms stemming from forced marriage, and raising questions about the content of, and label for, the violation. These developments will be examined in turn.

The SCSL’s groundbreaking jurisprudence on forced marriage has been referred to and relied upon in two tribunals. The ECCC prosecuted individuals for forced marriage committed during Cambodia’s Khmer Rouge regime. Many men and women were forced by Khmer Rouge state officials to marry in mass ceremonies, without choice of spouse, and subsequently coerced to have sex and procreate. The Trial Judgment analyzed forced marriage through the category of other inhumane acts, following the example set by the SCSL. The judgment specifically quoted the definition of forced marriage set out by the SCSL’s Appeals Chamber, and ultimately concluded that: “Individuals … “consented” to marriage out of fear, including the fear or threat of being placed in danger; subjected to various accusations including opposing Angkar; sent for re-education or refashioning; being moved to another location; or killed. … the consent given was not genuine.” The accused were convicted of the forced marriage charges.

The ICC has charged two accused with forced marriage, also under the crime against humanity of other inhumane acts. In Prosecutor v. Ongwen, a former senior commander in the Lord’s Resistance Army in northern Uganda was convicted of directly committing, and being responsible for, a system of “forced exclusive conjugal partners”, under which abducted girls and women were forced to serve as ‘wives’ within his brigade in the 2002-2005 time period. In Prosecutor v. Al Hassan Ag Abdoul Aziz, the accused, the former de facto chief of the Islamic police under armed groups Al-Qaeda in the Islamic Maghreb and Ansar Dine, is charged with participating in a policy of forced marriages directed against the female inhabitants of Timbuktu, Mali, in 2012-2013. The Prosecutor argues that these forced marriages led to repeated rapes, sexual enslavement and persecution of these women and girls. The Al Hassan trial opened on 14-15 July 2020. While a trial judgment has not been issued in the Al Hassan case, the SCSL’s jurisprudence on forced marriage played a prominent role in the Ongwen trial judgment.

The SCSL’s jurisprudence has also prompted scholars to examine the phenomenon of forced marriage (see here, here, here, and here). One issue they have explored is the categorization of victims of forced marriage, since the SCSL defined victimhood largely in female terms and perpetrators as males. The focus of the SCSL was on the ‘bush wife’ phenomenon created by the RUF and AFRC rebels, in which the victims appearing before the court were girls and women and the perpetrators were identified as male fighters. As a result, the analysis by the SCSL was cast in this paradigm of female victims and male perpetrators, and many commentators have since understandably focused on this scenario, given the large numbers of female victims of forced marriage in conflicts around the world. The ECCC presented a different scenario, in which the victims were both male and female and the perpetrators were male and female officials of the Khmer Rouge (see here for a more in depth analysis on this issue at the ECCC). Subsequent research (see here and here) has indicated that victims and perpetrators of forced marriage may be both female and male. There may be boys and men forced to become ‘husbands’ who are coerced into this role through policies aimed at increasing internal compliance and allegiance to a particular fighting group. This research helps to bring further nuance to the understanding of forced marriage victimhood, given that “forced marriage as a mechanism of atrocity may assume different forms in different places”. Therefore, Denov and Drumbl urge a focus on coercion (“imposing a compelled association”) of all affected parties.

Another key issue of contention and discussion among commentators relates to the term ‘forced marriage’. The Taylor Trial Chamber, and experts such as Sellers, advocate replacing the term with a legal label that more accurately captures the harms under consideration, such as ‘conjugal slavery’ or ‘slavery’ simpliciter (see here and here). The reasons are twofold: first, in cases where there is no legal union (such as in the ‘bush wife’ context), they feel that it is a misnomer to refer to the violation as a form of marriage. They argue that the reference to ‘marriage’ in these scenarios obscures the fact that the victims are, in many circumstances, enslaved. Secondly, they express concern that the reference to ‘marriage’ may unintentionally serve to legitimate patriarchal understandings of marriage, in which women are expected to serve men. On the other hand, scholars recognize that there is an important expressive function in the term ‘forced marriage’ for some victims.

In sum, as a result of the SCSL’s analysis and subsequent consideration in other tribunals, forced marriage is comprehended as a multifaceted set of harms. At the same time, the SCSL’s introduction of forced marriage has triggered a deeper examination and questioning by international criminal law scholars and practitioners – a healthy and logical development meant to ensure that the crime is properly identified and labelled.