This entry is the first in a series that will post noteworthy excerpts from the Armed Forces Revolutionary Council Appeal Judgment. Due to space and format constraints I will only post selections from the sections and will omit the references and citations. This is not done to highlight any particular passages, but to save time and present something that is digestible. What follows is from the Judgment:
Forced Marriage:
[ . . .]
The first issue for the Appeals Chamber's determination relates to the scope of "Other Inhumane Acts" under Article 2.i of the Statute. The Trial Chamber concluded that in light of the exhaustive categorisation of sexual crimes under Article 2.g, the offence of "Other Inhumane Acts" must be restrictively interpreted so as to exclude offences of a sexual nature. The Appeals Chamber considers that it is implicit in the Trial Chamber's finding that it considered forced marriage as a sexual crime.
In order to assess the correctness of the Trial Chamber's finding, regard must be given to the objective of the prohibition of "Other Inhumane Acts" in international criminal law. First introduced under Article 6.c of the Nuremberg Charter, the crime of "Other Inhumane Acts" is intended to be a residual provision so as to punish criminal acts not specifically recognised as crimes against humanity, but which, in context, are of a comparable gravity to the listed crimes against humanity. It is therefore inclusive in nature, intended to avoid unduly restricting the Statute's application to crimes against humanity. The prohibition against "Other Inhumane Acts" is now included in a large number of international legal instruments and forms part of customary international law.
The jurisprudence of the international tribunals shows that a wide range of criminal acts, including sexual crimes, have been recognised as "Other Inhumane Acts." These include forcible transfer, sexual and physical violence perpetrated upon dead human bodies, other serious physical and mental injury, forced undressing of women and marching them in public, forcing women to perform exercises naked, and forced disappearance, beatings, torture, sexual violence, humiliation, harassment, psychological abuse, and confinement in inhumane conditions. Case law at these tribunals further demonstrates that this category has been used to punish a series of violent acts that may vary depending upon the context. In effect, the determination of whether an alleged act qualifies as an "Other Inhumane Act" must be made on a case-by-case basis taking into account the nature of the alleged act or omission, the context in which it took place, the personal circumstances of the victims including age, sex, health, and the physical, mental and moral effects of the perpetrator's conduct upon the victims.
The Trial Chamber therefore erred in law by finding that "Other Inhumane Acts" under Article 2.i must be restrictively interpreted. [ . . .]
The Nature of "Forced Marriage" in the Sierra Leone Conflict and its Distinction from Sexual Slavery
The Appeals Chamber recalls the Trial Chamber's findings that the evidence adduced by the Prosecution did not establish the elements of a non-sexual offence of forced marriage independent of the crime of sexual slavery under Article 2.g of the Statute; and that the evidence is completely of the crime of sexual slavery, leaving no lacuna in the law that would necessitate a separate crime of forced marriage as an "Other Inhumane Act."
The Trial Chamber defined sexual slavery as the perpetrator's exercising any or all of the powers attaching to the right of ownership over one or more persons by imposing on them a deprivation of liberty, and causing them to engage in one or more acts of a sexual nature. In finding that the evidence of forced marriage was completely of the crime of sexual slavery, the Trial Chamber found that the relationship of the perpetrators to their "wives" was one of ownership, and that the use of the term "wife" was indicative perpetrator's intent to exercise ownership rights over the victim. Implicitly, the Trial Chamber found that evidence of forced marriage was predominantly sexual in nature.
According to the Prosecution, the element that distinguishes forced marriage from other forms of sexual crimes is a "forced conjugal association by the perpetrator over the victim. It represents forcing a person into the appearance, the veneer of a conduct (i.e. marriage), by threat, physical assault or other coercion. The Prosecution adds that while acts of forced marriage may in certain circumstances amount to sexual slavery, in practice they do not always involve the victim being subjected to non-consensual sex or even forced domestic labour. Therefore, the Prosecution contends that forced marriage is not a sexual crime.
The trial record contains ample evidence that the perpetrators of forced marriage 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." In return, the rebel "husband" was expected to provide food, clothing and protection to his "wife, "including protection from rape by other men, acts he did not perform when he used a female for sexual purposes only. As the Trial Chamber found, the relative benefits that victims of forced marriage received from the perpetrators neither signifies consent to the forced conjugal association, nor does it vitiate the criminal nature of the perpetrator's conduct given the environment of violence and coercion in which these events took place.
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.
In addition to the Trial Chamber's findings, other evidence in the trial record shows that the perpetrators intended to impose a forced conjugal association rather than exercise mere ownership over civilian women and girls. In particular, the Appeals Chamber notes the evidence and report of the Prosecution expert Mrs. Zainab Bangura which demonstrates the physical and psychological suffering to which the victims of forced marriage were subjected during the civil war in Sierra Leone. According to the Prosecution expert:
"the most devastating effect on women of the war was the phenomenon called 'bush wife', rebel wife or jungle wife. This was a phenomenon adopted by rebels whereby young girls or women were captured or abducted and forcibly taken as wives . . . The use of the term 'wife' by the perpetrator was deliberate and strategic. The word 'wife' demonstrated a rebel's control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes. . . . By calling a woman 'wife', the man or 'husband' openly staked his claim and she was not allowed to have sex with any other person. If she did, she would be deemed unfaithful and the penalty was severe beating or death
'Bush wives' were expected to carry out all the functions of a wife and more . . . [S]he was expected to show undying loyalty to her husband for his protection and reward him with 'love and affection . . .'Bush wives' were constantly sexually abused, physically battered during and after pregnancies, and psychologically terrorised by their husbands, who thereby demonstrated their control over their wives. Physically, most of these girls experienced miscarriages, and received no medical attention at the time . . . Some now experience diverse medical problems such as severe stomach pains . . . some have had their uterus removed; menstrual cycles are irregular; some were infected with sexually transmitted diseases and others tested HIV positive."
In light of all the evidence at trial, Judge Doherty, in her Partly Dissenting Opinion, expressed the view that forced marriage involves "the imposition, by threat or physical force arising from the perpetrator's words or other conduct, of a forced conjugal association by the perpetrator over the victim." She further considered that this crime satisfied the elements of "Other Inhumane Acts" because victims were subjected to mental trauma by being labelled as rebel "wives"; further they were stigmatised and found it difficult to reintegrate into their communities. According to Judge Doherty, forced marriage qualifies as an "Other Inhumane Acts" causing mental and moral suffering, which in the context of the Sierra Leone conflict, is of a comparable seriousness to the other crimes against humanity listed in the Statute.
Furthermore, the Appeals Chamber also notes that in their respective Concurring and Partly Dissenting Opinions, both Justice Sebutinde and Justice Doherty make a clear and convincing distinction between forced marriages in a war context and the peacetime practice of "arranged marriages" among certain traditional communities, noting that arranged marriages are not to be equated to or confused with forced marriage during armed conflict. Justice Sebutinde goes further to add, correctly in our view, that while traditionally arranged marriages involving minors violate certain international human rights norms such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), forced marriages which involve the abduction and detention of women and girls and their use for sexual and other purposes is clearly criminal in nature.
Based on the evidence on record, the Appeals Chamber finds that no tribunal could reasonably have found that forced marriage was subsumed in the crime against humanity of sexual slavery. While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words of conduct of the perpetrator or those associated with him, into a forced conjugal association with a another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the "husband" and "wife," which could lead to disciplinary consequences for breach of this exclusive arrangement. These distinctions imply that forced marriage is not predominantly a sexual crime. The Trial Chamber, therefore, erred in holding that the evidence of forced marriage is subsumed in the elements of sexual slavery.
In light of the distinctions between forced marriage and sexual slavery, the Appeals Chamber finds that in the context of the Sierra Leone conflict, forced marriage describes 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.
Does Forced Marriage Satisfy the Elements of "Other Inhumane Acts"?
The Prosecution submits that the crime charged under Count 8 is "Other Inhumane Acts," which forms part of customary international law, and therefore, does not violate the principle of nullum crimen sine lege. Therefore, the Prosecution submits that the only question on appeal is whether forced marriage satisfies the elements of "Other Inhumane Acts." The Prosecution argues that forced marriage amounts to an "Other Inhumane Act" and that the imposition of a forced conjugal association is as grave as the other crimes against humanity such as imprisonment, causing great suffering to its victims. In particular, the Prosecution argues that the mere fact of forcibly requiring a member of the civilian population to remain in a conjugal association with one of the participants of a widespread or systematic attack directed against the civilian population is at least, of sufficient gravity to make this conduct an "Other Inhumane Act."
The Appeals Chamber agrees with the Prosecution that the notion of "Other Inhumane Acts" contained in Article 2.i of the Statute forms part of customary international law. As noted above, it serves as a residual category designed to punish acts or omissions not specifically listed as crimes against humanity provided these acts or omissions meet the following requirements:
(i) inflict great suffering, or serious injury to body or to mental or physical health;
(ii) are sufficiently similar in gravity to the acts referred to in Article 2.a to Article 2.h of the Statute; and
(iii) the perpetrator was aware of the factual circumstances that established the character of the gravity of the act.
The acts must also satisfy the general chapeau requirements of crimes against humanity.
The Appeals Chamber finds that the evidence before the Trial Chamber established that victims of forced marriage endured physical injury being subjected to repeated acts of rape and sexual violence, forced labour, corporal punishment, and deprivation of liberty. Many were psychologically traumitised by being forced to watch the killing or mutilation of close family members, before becoming "wives" to those who committed these atrocities and from being labelled rebel "wives" which resulted in them being ostracised from their communities. In cases where they became pregnant from the forced marriage, both they and their children suffered long-term social stigmatisation.
In assessing the gravity of forced marriage in the Sierra Leone conflict, the Appeals Chamber has taken into account the nature of the perpetrators' conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age. Many of the victims of forced marriage were children themselves. Similarly, the Appeals Chamber has considered the effects of the perpetrators' conduct on the physical, moral, and psychological health of the victims. The Appeals Chamber is firmly of the view that acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence.
The Appeals Chamber is also satisfied that in each case, the perpetrators intended to force a conjugal partnership upon the victims, and were aware that their conduct would cause serious suffering or physical, mental or psychological injury to the victims. Considering the systematic and forcible abduction of the victims of forced marriage, and the prevailing environment of coercion and intimidation, the Appeals Chamber finds that the perpetrators of these acts could not have been under any illusion that their conduct was not criminal. This conclusion in fortified by the fact that the acts described as forced marriage may have involved the commission of one or more international crimes such as enslavement, imprisonment, rape, sexual slavery, abduction among others.
The Appeals Chamber has carefully given consideration to whether or not it would enter fresh convictions for "Other Inhumane Acts" (forced marriage). The Appeals Chamber is fully aware of the Prosecution's submission that entering such convictions would reflect the full culpability of the Appellant. The Appeals Chamber is also aware that the Trial Chamber relied upon the evidence led in support of sexual slavery and forced marriage to enter convictions against the Appellants for "Outrages upon Personal Dignity" under Count 9 of the Indictment. Since "Outrages upon Personal Dignity" and "Other Inhumane Acts" have materially distinct elements (in the least, the former is a war crime, and the latter a crime against humanity) there is no bar to entering cumulative convictions for both offences on the basis of the same facts. However, in this case the Appeals Chamber is inclined against such cumulative convictions. The Appeals Chamber is convinced that society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of widespread or systematic attack against the civilian population, is adequately reflected by recognising that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.
The Appeals Chamber therefore grants Ground Seven of the Prosecution's Appeal.