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The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to Transitional Justice?

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Abstract

Serious gender-based crimes were committed against women and girls during Sierra Leone’s decade-long armed conflict. This article examines how the Special Court for Sierra Leone has approached these crimes in its first four judgments. The June 20, 2007 trial judgment in the Armed Forces Revolutionary Council case assists international criminal law’s limited understanding of the crime against humanity of forced marriage, but also collapses evidence of that crime into the war crime of outrages upon personal dignity. The February 22, 2008 appeals judgment attempts to correct this misstep. In contrast, the August 2, 2007 trial judgment in the Civil Defence Forces case is virtually silent on crimes committed against women and girls, although the May 28, 2008 appeals judgment attempts to partially redress this silence. This article concludes that the four judgments, considered together, raise the specter that the Special Court could potentially fail to make a significant progressive contribution to gender-sensitive transitional justice.

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Notes

  1. This reflects the definition of gender-based violence adopted by the United Nations High Commissioner for Refugees in the 2008 UNHCR Handbook for the Protection of Women and Girls. Geneva, UNHCR, 383.

  2. E.g. Askin (2005); de Brouwer (2005); Gardam and Jarvis (2001).

  3. E.g. Bedont and Hall-Martinez (1999); Copelon (2000); Oosterveld (2004); and Oosterveld (2005).

  4. This paper focuses upon gender-based violence against women and girls, as opposed to men and boys, because the AFRC and CDF cases themselves concentrated upon women and girls when considering such violence. More work needs to be done to understand gender-based violence targeted at men and boys during the Sierra Leonean conflict.

  5. Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Judgment (20 June 2007) (Special Court for Sierra Leone, Trial Chamber II) [AFRC Trial Judgment].

  6. Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-A, Judgment (22 February 2008) (Special Court for Sierra Leone, Appeals Chamber) [AFRC Appeals Judgment].

  7. Prosecutor v. Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Judgment (2 August 2007) (Special Court for Sierra Leone, Trial Chamber I) [CDF Trial Judgment].

  8. Prosecutor v. Moinina Fofana and Allieu Kondewa, SCSL-04-14-A, Judgment (28 May 2008) (Special Court for Sierra Leone, Appeals Chamber) [CDF Appeals Judgment].

  9. The crime against humanity of enslavement has been prosecuted by the ICTY, which highlighted that such enslavement could occur through sexual means: Prosecutor v. Kunarac et al., IT-96-23-T & 1-T, Judgment (22 February 2001) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), paras. 883 and 886. However, the Special Court’s AFRC judgments represent the first completed prosecutions on charges of the crime against humanity of sexual slavery.

  10. Prosecutor v. Momir Nikolić, IT-02-60/1-S, Sentencing Judgment (2 December 2003) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), para. 86.

  11. On the contribution of the Special Court to truth-telling and narrative construction, see: Fritz and Smith (2001) at 423 and Smith (2004).

  12. On the issue of adding gender to the processes of transitional justice, see Bell and O’Rourke (2007) at 26–28, 33.

  13. See Franke (2006) at 820.

  14. Staggs Kelsall and Stepakoff (2007) at 358; Barnes et al. (2007) at 12.

  15. CDF Trial Judgment, supra note 7 at para. 2.

  16. AFRC Trial Judgment, supra note 5 at para. 164.

  17. Human Rights Watch (2002) at 46–48.

  18. Perriello and Wierda (2006) at 7 and 10.

  19. Letter of 12 June 2000 from President Kabbah to United Nations Secretary-General Kofi Annan.

  20. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed on 16 January 2002. The Statute of the Special Court for Sierra Leone is annexed to this Agreement.

  21. Under article 5, these crimes are from the 1926 Prevention of Cruelty to Children Act. Article 5 has criticized for including outdated domestic offences: Eaton (2004) at 912 and Nowrojee (2005) at 98.

  22. Nowrojee, supra note 21 at 99.

  23. Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-PT, Decision on Prosecution Request for Leave to Amend the Indictment (6 May 2004) (Special Court for Sierra Leone, Trial Chamber) [AFRC Indictment Amendment]; Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao, SCSL-04-15-PT, Decision on Prosecution Request for Leave to Amend the Indictment (6 May 2004) (Special Court for Sierra Leone, Trial Chamber) [RUF Indictment Amendment].

  24. AFRC Trial Judgment, supra note 5 at para. 692.

  25. See the listing of ICTY and ICTR rape prosecutions at id., footnote 1353.

  26. Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment (2 September 1998) (International Criminal Tribunal for Rwanda, Trial Chamber), para. 598.

  27. Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgment (10 December 1998) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), para. 185.

  28. Prosecutor v. Kunarac et al., supra note 9 at para. 460.

  29. de Brouwer, supra note 2 at 131–135.

  30. Id. at 123. See also Boon (2000–01); Campbell (2007); Engle (2005); Halley et al. (2006); and MacKinnon (2006).

  31. Campbell, supra note 30 at 418.

  32. AFRC Trial Judgment, supra note 5 at para. 693.

  33. Id. at para. 695.

  34. Id. at para. 694.

  35. Id.

  36. Id.

  37. The Trial Chamber had indicated earlier that it would follow Kunarac, but gave no explanation as to why: Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Decision on Defence Motions for Judgment of Acquittal Pursuant to Rule 98 (31 March 2006) (Special Court for Sierra Leone, Trial Chamber II), para. 106 [AFRC Rule 98 Decision].

  38. Supra note 9.

  39. Oosterveld (2004), supra note 3 at 626.

  40. For example, the ICC has charged Germain Katanga, Joseph Kony, Mathieu Ngudjolo, and Vincent Otti with sexual slavery.

  41. AFRC Trial Judgment, supra note 5 at para. 708.

  42. Oosterveld (2004), supra note 3 at 630–1 and 642–3.

  43. AFRC Trial Judgment, supra note 5 at para. 95. This decision is not necessarily surprising, however. In the AFRC Rule 98 Decision, supra note 37, Justice Sebutinde noted in her Separate Concurring Opinion that the charge was duplicative, but also stated at para. 9 that “the defect could be cured by an amendment pursuant to Rule 50 of the Rules that splits the offences into two separate counts.” The Prosecutor did not pursue this amendment.

  44. AFRC Trial Judgment, supra note 5 at Partially Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery and Count 8 (‘Forced Marriages’), para. 12. The majority’s decision is surprising. In the AFRC Rule 98 Decision, supra note 37, Justice Sebutinde notes in her Separate Concurring Opinion the lack of prejudice to the accused persons of splitting the charges (at para. 9).

  45. AFRC Appeals Judgment, supra note 6 at para. 110.

  46. Steains (1999) at 365; and Copelon (2000), supra note 3 at 234.

  47. AFRC Trial Judgment, supra note 5 at para. 719.

  48. Id. at para. 713.

  49. The threshold of the crimes against humanity provision in article 2 of the Statute is “a widespread or systematic attack against any civilian population”.

  50. Copelon (2000), supra note 3 at 234.

  51. But likely not domestic, since the 1999 Lomé Peace Agreement provides for a blanket domestic amnesty in Sierra Leone for crimes committed during the armed conflict.

  52. Sierra Leone Truth and Reconciliation Commission (2004) at para. 299.

  53. AFRC Trial Judgment, supra note 5 at para. 711.

  54. Id. at Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to the Judgment Pursuant to Rule 88(C), paras. 10, 12, and 14.

  55. Id. at Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’), para. 48.

  56. Id. at para. 46.

  57. Id. at para. 45.

  58. AFRC Indictment Amendment, supra note 23 at para. 52.

  59. Nowrojee, supra note 21 at 102.

  60. Id.

  61. Id. and Scharf and Mattler (2005) at 23.

  62. AFRC Trial Judgment, supra note 5 at paras. 704 and 710–712.

  63. Engle, supra note 30 at 815.

  64. Franke, supra note 13 at 822–3.

  65. See, e.g., Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Prosecutor Final Trial Brief (6 December 2006), paras. 1868–1918.

  66. AFRC Rule 98 Decision, supra note 37 at Separate Concurring Opinion of Hon. Justice Julia Sebutinde, para. 14.

  67. Sierra Leone Truth and Reconciliation Commission, supra note 52 at para. 299.

  68. AFRC Appeals Judgment, supra note 6 at para. 195.

  69. Id. at para. 196.

  70. Id. at para. 195.

  71. AFRC Trial Judgment, supra note 5 at paras. 703–4 and 711–71. The AFRC majority trial judges relied upon a CDF motion decision at note 1362: Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on Admissibility of Evidence (24 May 2005) (Special Court for Sierra Leone, Trial Chamber) [24 May 2005 CDF Majority Decision].

  72. AFRC Trial Judgment, supra note 5 at 707, in which the majority referred to this listing as “gender crimes”. It referred to the Rome Statute of the International Criminal Court as separating “gender crimes” into an isolated paragraph within its crimes against humanity listing, which is incorrect. The Rome Statute’s crimes against humanity listing separates out crimes of sexual violence into one paragraph, but this paragraph does not capture all gender-based crimes. For example, a separate paragraph prohibits acts of gender-based persecution.

  73. Id. at paras. 713–14.

  74. See, e.g., Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-A, Judgment (17 December 2004) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber), para. 117.

  75. For example, the act of rape can be considered under both the crime against humanity of rape and of torture: Prosecutor v. Kunarac et al., IT-96-23 & 1-A, Judgment (12 June 2002) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber), paras. 149–50.

  76. AFRC Appeals Judgment, supra note 6 at para. 184.

  77. Id. at para. 199.

  78. Id. at para. 202.

  79. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Prosecution Request to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (9 February 2004) (Special Court for Sierra Leone, Office of the Prosecutor).

  80. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Decision on Prosecution Request for Leave to Amend the Indictment (20 May 2004) (Special Court for Sierra Leone, Trial Chamber) at para. 10(c) [hereinafter 20 May 2004 CDF Majority Decision].

  81. Id. at para. 87.

  82. Id. at para. 84.

  83. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Dissenting Opinion of Judge Pierre Boutet on the Decision on Prosecution Request for Leave to Amend the Indictment (31 May 2004) (Special Court for Sierra Leone, Trial Chamber) at paras. 24 and 35.

  84. Id. at paras. 26–33.

  85. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (2 August 2004) (Special Court for Sierra Leone, Trial Chamber) at paras. 4 and 6.

  86. Id. at para. 8.

  87. Id. at 37–8.

  88. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Dissenting Opinion of Judge Pierre Boutet on Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (5 August 2004) (Special Court for Sierra Leone, Trial Chamber) at paras. 17, 18, 20, and 25.

  89. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal (17 January 2005) (Special Court for Sierra Leone, Trial Chamber) at para. 44.

  90. CDF Appeals Judgment, supra note 8 at para. 425. The SCSL is to close in 2010. Remission for retrial would have cost implications and would likely run past the planned closure.

  91. Id. at para. 427.

  92. Id. at para. 426.

  93. Id. at Partially Dissenting Opinion of Honourable Justice Renate Winter, para. 73.

  94. Id. at para. 74.

  95. Id. at paras. 82–86.

  96. Id. at para. 67.

  97. Id. at para. 71. The appropriate remedy was to request the Trial Chamber’s leave to appeal the May 20, 2004 decision, which is exactly what the Prosecutor did.

  98. 24 May 2005 CDF Majority Decision, supra note 71 at para. 3. On November 2, 2004, the Prosecutor attempted to elicit evidence of the abduction and forced marriage of more than nine women, arguing that such evidence supported existing counts of physical violence and mental suffering, collective punishments and terrorizing the civilian population. The Trial Chamber judges indicated that they would exclude such evidence, should it be introduced. The Prosecutor did not then attempt to introduce this evidence: Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (2 November 2004) (Special Court for Sierra Leone, Trial Chamber), 47–55.

  99. 24 May 2005 CDF Majority Decision, supra note 71 at para. 3.

  100. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Decision on the Urgent Prosecution Motion Filed on the 15th of February 2005 for a Ruling on the Admissibility of Evidence (23 May 2005) (Special Court for Sierra Leone, Trial Chamber).

  101. 24 May 2005 CDF Majority Decision, supra note 71. In the CDF Appeals Judgment, supra note 8 at para. 423, the Appeals Chamber notes that the written decision was actually issued on 22 June 2005.

  102. For example, Justice Boutet explained that the Trial Chamber normally undertakes a two-step process, allowing in evidence if it is relevant and determining the probative value of the evidence at a later stage: Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (1 June 2005) (Special Court for Sierra Leone, Trial Chamber), 3 [1 June 2005 Transcript].

  103. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (11 March 2005) (Special Court for Sierra Leone, Trial Chamber), 5–14.

  104. 1 June 2005 Transcript, supra note 102 at 1–3.

  105. Kendall (2005) at 4.

  106. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (2 June 2005) (Special Court for Sierra Leone, Trial Chamber), 31–48.

  107. Kendall, supra note 105 at 5.

  108. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (3 June 2005) (Special Court for Sierra Leone, Trial Chamber), 16–19.

  109. Kendall, supra note 105 at 5.

  110. 24 May 2005 CDF Majority Decision, supra note 71 at para. 16.

  111. Id. at para. 19.

  112. Id. at Separate Concurring Opinion of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, at para. 27.

  113. 24 May 2005 CDF Majority Decision, supra note 71 at para. 19.

  114. Supra note 71.

  115. 24 May 2005 CDF Majority Decision, supra note 71 at Separate Concurring Opinion of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, at para. 78(vi).

  116. Staggs Kelsall and Stepakoff, supra note 14 at 370.

  117. While there are scattered mentions of sexual violence against men (paras. 496 and 520), the sexual mutilation and murder of two women (423), threatened rape (653), and the targeting of pregnant women and their fetuses (533, 561, and 565), there are far more silences in the CDF Trial Judgment, supra note 7.

  118. CDF Appeals Judgment, supra note 8 at para. 441.

  119. Id. at para. 443.

  120. Id. at para. 446.

  121. Id. at para. 450.

  122. Id. at para. 451.

  123. Staggs Kelsall and Stepakoff, supra note 14 at 373.

  124. Id. at 373–4.

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Acknowledgments

The author wishes to thank Joseph Cescon for his research assistance, and Doris Buss and Sara Seck for their comments and suggestions. Any errors, however, are the author’s own.

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    Valerie Oosterveld

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Oosterveld, V. The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to Transitional Justice?. Hum Rights Rev 10, 73–98 (2009). https://doi.org/10.1007/s12142-008-0098-7

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