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Sex and International Tribunals: The Erasure of Gender from the War Narrative

The following is an excerpt from the above-titled book by Cheseche Salome Mibenge, who visited the Washington College of Law on November 11th at an event co-sponsored by the War Crimes Research Office, The American Red Cross and The Women in International Law Interest Group of the American Society of International Law. Ms. Mibenge shared reflections on the process of writing this book as well as insights from her research into how international tribunals approach issues of gender and personal narratives of her visits to and work with victims of rape and sexual violence. A webcast of the event is available here.

All Women Are Slaves
Insiders and Outsiders to Gender and Violence

In February 2007, I conducted an interview with Lars Sven, a development worker in Sierra Leone. In the course of the interview, he explained that he was not at all surprised by the cruelty women and girls suffered in war because Sierra Leonean women were no more than slaves in peacetime too. According to Lars, “It’s the same in war and peace; these little girls are sold into marriage by their parents; they are slaves in marriage. They are no more than slaves to their husbands.” In January 2009, I shared Lars’s observation with Papa, a Sierra Leonean colleague in the United States. Papa responded that actually he was not at all surprised by Lars’s comments because “that’s what white people think about us [Africans].” I countered: “I don’t know if that’s fair. This man has lived and worked in Sierra Leone for many years. His wife is Sierra Leonean. He loves the country.” Papa replied, “Those are the worst kind. They tell lies about our culture and tradition, and we applaud them. He doesn’t know a thing about Sierra Leone or Sierra Leonean women or the way we marry. And neither does his wife.”

My conversation with Lars and Papa’s reaction to it support my argument in the previous chapter against a totalizing narrative that rhetorically enslaves all Sierra Leonean women. However, in this chapter, my focus is on locality and the contest it can raise at the individual and institutional level. Those who possess or claim to possess insider status often compete over whose knowledge of the local is legitimate. These claims and assumptions are difficult to sustain when one’s identity is part insider, part outsider. Indeed, one’s identity is rarely monochromatic. Thus, a local resident might also be an expatriate, while a citizen may be separated from his motherland by an ocean and a foreign passport. Is it possible that an expatriate in Sierra Leone may be better versed in the harsh realities of local culture than a Sierra Leonean in the diaspora?

As my earlier discussions on transitional justice processes revealed, models of justice do not fall neatly into such categories as “grassroots” or “international.” And it should not be taken for granted that a tribunal, even an international one, is impartial, legitimate, and knowledgeable. Could the case law of an international tribunal make a greater contribution to enforcing the rights of women than that of an indigenous tribunal? Does a court with a local seat co-opt local culture and sensibilities in its decisions more effectively than an international court? Does a local seat ensure civil society’s support for the transitional justice system? My review in this chapter of the Sierra Leone Special Court’s narratives about forced marriage and sexual enslavement will show how the court’s multiple locations, as both a local and international tribunal, affected its construction and definition of gender-based violence.

Rather than conducting a traditional case law review and producing a detailed review of the judgments in the completed trials before the Sierra Leone Special Court, I focus my gender review on the material jurisdiction of the statute of the Special Court, the selection of reliable witnesses and victims by the prosecutor, and the prosecutor’s inclusion of charges in the indictment. And in order to reveal individual agency behind the often opaque façade of international institutions, my focus is largely on the prosecutor and the ways in which gender is a factor in the exercise of his extensive discretionary powers. I base my analysis of the prosecutor’s gender biases not on empirical research but rather on hypotheses based on gendered outcomes of the transitional justice process.i Hilary Charlesworth describes feminist method as exposing and questioning the limited basis of international law’s claim to objectivity and impartiality. Feminist method insists on the importance of gender relations as a category of analysis. She warns that observing this method will not produce neat “legal” answers but will challenge the very categories of “law” and “non-law” (Charlesworth: 1999: 379). My intention in this chapter, as it was in Chapters 2 and 3, is to disrupt legal practitioners’ standard categorization of violence against women into an incomplete and/or inaccurate legal category.

My gender critique in this chapter arises from the statute of the Special Court’s focus on widespread and systematic acts of sexual violence as definitive crimes against humanity or war crimes committed against women during Sierra Leone’s civil war. My critique is of decisions made by the prosecutor and trial chambers at the pretrial and trial stages of the criminal proceedings. In Chapter 3, I argued that the TRC’s analogy between forced marriage and early marriage used the egregious crime of slavery to stigmatize the institution of marriage in Sierra Leone. In this chapter, I continue this argument by elaborating on the definition of slavery in international law and the narrative of gender and enslavement as told by international courts, including the Special Court. I argue that the crimes of forced marriage and sexual slavery are legal fictions erroneously pursued by the prosecutor. Enslavement was a sufficient term under which to prosecute and do justice to the experience of Sierra Leone’s abducted girls and women. I interrogate the reasons that moved the Special Court toward “sex” slavery as well as the experience of abducted or conscripted women and girls, and I conclude that besides defeating efforts to conduct a thorough gender analysis of enslavement, “sexing” slavery has had a negative impact on the girls as well as boys enslaved by rebel forces.

I take a long look back to transatlantic slavery and colonial slavery as sites that can inform our present understanding of gender and the ways in which it shapes enslavement. This retrospection, in turn, informs my review of contemporary constructions of the elements of enslavement in the decisions of the International Criminal Tribunal for the Former Yugoslavia, the Women’s International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery, the Rome Statute for the International Criminal Court, and, finally, the decisions of the Sierra Leone Special Court. As in the preceding chapter, I use the work of anthropologists who have lived and worked closely with communities struggling to reintegrate child soldiers in order to enrich legal research. Their work demonstrates the historical continuities and cultural underpinnings in the use of child soldiers for enslavement and other abuses and exploitations (Shepler 2005: 2–3).

Establishing the Special Court

The Sierra Leone peace process initially called for a full amnesty for combatants from criminal prosecution but later demanded the establishment of individual criminal responsibility for those most responsible for gross violations of human rights in Sierra Leone. The Lomé Peace Accord granted the leader of the Revolutionary United Front (RUF, or “the rebels”), Corporal Foday Sankoh, an absolute and free pardon.ii A blanket amnesty was also adopted in the earlier Abidjan Peace Accord of 30 November 1996 and the Conakry Agreement of 23 October 1997. Under this and the past agreements, the government of Sierra Leone was prohibited from taking any official or judicial action against any member of the RUF or other fighting forces in respect to anything done by them in pursuit of their military and political objectives. In addition, the government was required to adopt legislative measures necessary to guarantee immunity to former combatants, exiles, and other persons outside the country for reasons related to the armed conflict and to protect the full exercise of their civil and political rights (Lomé accord, art. 9 [1] [2], and [3]).

The Lomé accord appointed Foday Sankoh head of a new Mineral Resources Commission and granted him the status of vice president (Keen 2005: 251). Despite the generous amnesty and award of political legitimacy, Sankoh’s RUF and the Armed Forces Revolutionary Council (AFRC) repeatedly violated the accord. The RUF continued to fight the AFRC and Civil Defense Force (CDF) in the countryside, prevented the deployment of UN peacekeepers to the diamond-rich eastern provinces, and, in one infamous incident, held more than five hundred peacekeepers hostage, confiscating their heavy weapons and vehicles. Reports of rebels raping, looting, and abducting children in the countryside escalated (Adekeye 2002: 101). Public resentment of Sankoh and his apparent impunity intensified and calls for a waiver of the amnesty provisions were heard in Sierra Leone and internationally. It was evident that repetitive awards of amnesty and impunity only fueled the rebel’s desire for war and did nothing to promote peace and reconciliation in Sierra Leone.iii Following a public demonstration by civilians, Sankoh was arrested on 17 May 2000. By the close of 2000, it seemed possible that security could be restored to the nation as the UN Mission in Sierra Leone swelled to more than twenty thousand peacekeepers, the largest peacekeeping operation in the world at that time (Keen 2005: 206, quoting Patel 2002: 37).

The permanent representative of Sierra Leone to the United Nations initiated a request to the president of the Security Council for the establishment of a criminal tribunal to prosecute leaders of the RUF (Kunowah-Tinu Kiellow 2008). This request led to the establishment of the Special Court for Sierra Leone jointly by the government of Sierra Leone and the United Nations pursuant to Security Council Resolution 1315. The Resolution and the Statute of the Special Court for Sierra Leone mandated the court to try not only the rebels, as the government intended, but all those who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law in the territory of Sierra Leone from 30 November 1996 onward (Statute art. 1).

The statute of the Special Court unequivocally waives amnesty for any person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime against humanity or a violation of the laws of war (art. 10). Further, it excludes perpetrators under the age of fifteen at the time they committed crimes against humanity or war crimes from its jurisdiction (art. 7 [1] and [2]).iv

The prosecutor has indicted a total of fourteen individuals, three of whom—Sam Bockarie, Foday Sankoh, and Samuel Hinga Norman—subsequently died.v The trials of three former leaders of the AFRC, two members of the CDF (or “Kamajors”), and three RUF leaders have been completed, including appeals. A trial judgment for Charles Taylor was delivered in March 2011. The trial judgments in the AFRC and RUF cases are the first to result in convictions for sexual violence and other forms of gender-based violence.

The Special Court is widely regarded as representing a new wave of mechanisms of accountability incorporating both domestic and international features. For this reason, it has been described by scholars as a “hybrid” court. In my view, this classification is unwarranted because apart from its geographical location in Freetown, the Special Court’s core prosecutorial features are international and absent of any significant influences from Sierra Leone’s legal system.vi Despite its local presence, many argue that the court remains remote from local people (International Crisis Group 2003: 11).vii “Local” in this sense refers not to a geographic location since both the Special Court and the TRC were situated in Sierra Leone. Rather, it refers to the real or imagined proximity to the social and cultural context underlying the formal transitional justice process. “Local” also presumes an independence from outside pressures exerted by international donors or third-party states.

The Special Court’s Statute and Rules of Evidence and Procedure reveal its international origins. The rules of the Special Court replicate the Rules of Evidence and Procedure of the International Criminal Tribunal for Rwanda (ICTR). It overlooks Sierra Leonean national rules of evidence and procedure, which further discredits the “hybrid” tag.

The material jurisdiction provided by the Special Court statute covers crimes against humanity and war crimes. The statute attempts to enhance the role of domestic laws by giving the Special Court the jurisdiction to prosecute crimes falling under the Prevention of Cruelty to Children Act (PCCA), an archaic statute that manifestly discriminates against the rights of the girl child.viii The PCCA is replete with defenses that are backward in the face of contemporary developments in the rules of evidence and procedure at the level of international criminal law. For example, the rules of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia and the Sierra Leone Special Court specify that corroboration of the testimony of victims of sexual violence is not necessary. In contrast, the PCCA provides that the evidence of girl witnesses must be corroborated, particularly if the child was a common prostitute or of low morality.ix The two positions are irreconcilable.

This attempt at incorporating national law into the statute in order to enhance the appearance of the “hybrid” nature of the transitional justice model reveals the international community’s desire to show their respect for and recognition of Sierra Leone’s legal system. However, this inclusion also reflects the drafter’s failure to investigate the legitimacy of local laws vis-à-vis the international duty to protect and promote the rights of women and girls in Sierra Leone. The prosecutor for the Special Court wisely ignored the PCCA when framing the charges against accused persons in the indictments, and its inclusion remained a dead letter.

Arguably, the Special Court’s hybrid personality would be enhanced by the fact that a significant number of its staff members were Sierra Leonean. The deputy registrar was Sierra Leonean, as were two of the four appeals chamber judges.x At the same time, a significant number of its senior staff members were recruited from the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY), including the registrar, deputy registrar, prosecutor, and chief of the Victims and Witnesses Unit. It is safe to assume that these appointees brought the institutional culture of international criminal tribunals to the Special Court. A head count of local versus foreign staff is, however, a formulaic approach and does not ensure that a tribunal is “hybrid.”xi Even if Sierra Leonean senior staff were to outnumber foreign senior and core staff, this factor would not of itself make the court a “hybrid” or even a “local” court.

The Special Court is an ad hoc international criminal tribunal in the nature of the ICTR and ICTY. Unlike these two bodies, however, the Special Court was not the result of a Security Council Resolution. This difference did not reduce its power to indict the former president of Liberia Charles Taylor, to exert pressure on Nigeria to extradite him to Sierra Leone, and subsequently to effect the transfer of his trial to The Hague. The Special Court exerted political clout commensurate with its status as an international court. The Special Court’s primacy over Sierra Leone’s domestic laws and its power to override decisions of domestic courts are other demonstrations of its supremacy over local institutions.xii If the drafters of the statute, namely, the international community (which includes the Sierra Leonean government), intended the national laws and procedures to play a meaningful role in the prosecution process of the “hybrid” court, the statute would have specifically stated so. The term hybrid is not a creation of the statute but that of the international actors seeking to emphasize a “home-grown” or “grassroots” institution in order to legitimize transitional justice. Clarifying at this stage that its international identity trumps any genuinely hybrid elements, I lay the groundwork for an analysis of the ways in which the “international” identity of the Special Court influenced decision making relating to gender and relationships with victims, witnesses, and other stakeholders, such as the government.

Gender, Violence, and the Prosecutor

In Chapter 1, I described the Beijing Declaration and Platform for Action as progressive third-tier instruments that called on states to integrate a gender perspective in the resolution of armed conflicts and to aim for a gender balance when nominating or promoting candidates for judicial and other positions in all relevant international bodies, such as the ad hoc tribunals for the former Yugoslavia and for Rwanda, as well as in other bodies related to the peaceful settlement of disputes (Beijing Declaration, para. 144 [c]). Such instruments also called upon states to ensure that these judicial bodies are able to address gender issues properly by providing appropriate training to prosecutors, judges, and other officials in handling cases involving rape, forced pregnancy, indecent assault, and other forms of violence against women in situations of armed conflict, including terrorism (ibid., para. 144 [d]).

The Sierra Leone Special Court is the ad hoc tribunal that best reflects the gender considerations of the Beijing Declaration and Platform. And, indeed, observers of processes of transitional justice have lauded the statute of the Sierra Leone Special Court for extending the list of crimes provided by the ICTR and ICTY statutes with respect to the crime of rape.xiii The Special Court statute lists rape as a crime against humanity but also includes sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence as crimes against humanity.xiv In addition to crimes against humanity, the Special Court has the power to prosecute persons who committed or ordered the commission of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The war crimes listed are extensive and include outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault.xv The statute provides a list of other serious violations of international humanitarian law, most notably, conscripting or enlisting children under the age of fifteen into armed forces or using them to participate actively in hostilities (art. 4 [c]).

The prosecutor was to be responsible for the investigation and prosecution of persons bearing the greatest responsibility for serious violations of international humanitarian law committed in Sierra Leone after 30 November 1996 (art. 15 [1]). The statute provided that, given the nature of the crimes committed and the particular sensitivities of girls, young women, and children victims of rape, sexual assault, abduction, and slavery of all kinds, due consideration should be given to the appointment of prosecutors and investigators experienced in gender-related crimes and juvenile justice (art. 15 [3] and [4]). This provision demanded gender competence as a professional requirement not only of the specialist investigators focusing on gender-based violence but also of the entire staff of the Office of the Prosecutor. This requirement revealed that the drafters of the statute and architects of justice had recognized the widespread and systematic nature of sexual violence perpetrated throughout the civil war. Furthermore, the specific reference to gender was a strong mandate for the prosecutor to investigate not just the rape of women but all manner of gender-based crimes committed against civilians.xvi

The statute also mandated the Special Court’s Registry to establish a Witness and Victims Unit (WVU) to provide protective measures and security arrangements, counseling, and other assistance for witnesses and victims appearing before the court. The statute specifically laid down the requirement that the unit personnel would have experience in trauma, including trauma related to crimes of sexual violence and violence against children.xvii The psychosocial unit consists of staff trained in counseling, plus two medically trained staff members and one psychologist (Vahidy et al. 2009: 137). The makeup of the personnel was another demonstration that the architects of transitional criminal justice in Sierra Leone had placed justice for women and children at the forefront of their prosecutorial objectives. Witnesses and victims of the fighting forces or the government were not just an indistinguishable mass but were to be seen as men, women, and children who survived the brutalities of an armed conflict. At the same time, the provisions of the statute described above show that women suffered harms that were specific to their gender, age, and other intersecting factors.

The provisions of the statute for the Sierra Leone Special Court present a narrative that takes it for granted that gender affects victims’ experience of armed conflict. However, the intersection of gender and violence before the tribunal was overwhelmingly interpreted as violence against women: the statute presented crimes against humanity and war crimes as crimes against civilian populations that may take specific shapes and forms when committed against women. It is the “add women and stir” approach, but it remains an important justice narrative for the purposes of academic critique and analysis in a world where transitional justice processes are an inherent part of the postwar reconstruction process.

The statute clearly spelled out the gender mandate of the prosecutor, but did the prosecutor fulfill his obligation toward victims of gender-based violence? A report by Kyra Sanin and Anna Stirnemann for the War Crimes Studies Center at the University of California, Berkeley (known as the Berkeley Report) concluded that contrary to the statute’s requirements for gender competency, most prosecution investigators and attorneys responsible for determining the most resilient witnesses were not trained to incorporate gender into their work (Sanin and Stirnemann 2006). The Berkeley Report indicates a prosecutorial strategy that discriminated against child witnesses, specifically girl witnesses. A review of the CDF, RUF, and AFRC cases showed that the number of child witnesses was kept to a minimum. Further, it revealed that as of 2006, all the witnesses categorized as child witnesses who had testified at the court were boys (ibid.: 15). This revelation was startling considering that up to 25 percent of children in the fighting forces were girls (ibid.). As of December 2005, only one female former combatant had testified before the Special Court. Other female witnesses testified about crimes they were forced to commit after abduction into the fighting forces, but generally the prosecution did not categorize these witnesses as former combatants (ibid.).

The prosecution’s principal criterion for determining when it would hear a child witness was whether or not the witness was a child combatant; the individual’s actual age did not figure in the calculus (ibid.: 11). As girl witnesses were not considered to be combatants, it seems the issue of gauging whether they were children (under eighteen, according to international standards) was not raised (ibid.: 15). The disproportionate representation of boy fighters as witnesses leads to the conclusion that investigators did not recognize girls as combatants.

The prosecutor’s omissions with respect to girl combatants mirror the development of the laws of war with respect to child combatants. The four Geneva Conventions omitted any regulation of the participation of children in armed conflicts, and their protection as children qua children came later with the two Additional Protocols of 1977 (Happold 2000: 31). The protocols impose an obligation on states not to recruit children under fifteen into the armed forces and to ensure that children under fifteen do not take part in active hostilities. A direct part in hostilities, when narrowly defined, means that “the person in question performs warlike acts which by their nature or purpose are designed to strike enemy combatants or material; acts therefore such as firing at enemy soldiers, throwing a Molotov cocktail at an enemy tank, blowing up a bridge carrying enemy war matériel, and so on” (Happold 2000: 36, quoting Kalshoven 1987: 91).

The prosecutor clearly followed the narrow international humanitarian law definition of “active hostilities” and consequently excluded former girl combatants from participation as witnesses in the transitional justice process. The prosecutor’s position undermined the multiple roles Sierra Leonean girls filled during the armed conflict, serving simultaneously as fighters, porters, cooks, food producers, messengers between camps, communication technicians, workers in diamond mines, assistants to the sick and wounded, wives, slaves, launderers, child-care providers, spies, and laborers (Sanin and Stirnemann 2006: 15; Mazurana and Carlson 2004: 1). If indeed they were sent to the front lines less frequently, it is due to the fact that they were so crucial to the war effort. In many cases, they were regarded as less expendable than boy combatants (Sanin and Stirnemann 2006: 15).xviii And yet this very reality is what disqualified girl former combatants from combatant status by the prosecution through its witness selection process that boxed girls and women into the gender roles of “child brides” and “rape victims.”xix

The statute gives the prosecutor the power to prosecute persons who conscripted children under the age of fifteen into armed groups or used them to participate actively in hostilities (art. 4 [a]). The statute provides that the mere act of conscripting children into an armed group is in itself a serious violation of international humanitarian law. Thus, the perception that only boys were conscripted for participation in active hostilities violates the spirit and intent of the statute. The statute required that the prosecution would provide testimony from children (both boys and girls) conscripted by armed forces. Participation in active hostilities was not conditional to a prosecution for conscription of children into armed groups. Beyond the letter of the statute, what was required was gender competence that allowed for an understanding of the context and nature of girl soldiering as a core contribution to active hostilities. This contextual analysis is found in the scholarship of social scientists but still eludes inclusion within legal scholarship and justice processes. And this analysis is crucial in shaping a gender competence that would recognize women’s and girls’ war experience beyond one of sexual victimization.xx

Several factors could be applied to mitigate the prosecutor’s exclusion of girl combatants from the witness stand: first is the claim that girls fear stigmatization more than boys for their association with fighting forces and are more likely to evade investigators and avoid participation in a criminal justice process that would expose their association with fighters; second, it is possible that girls more than boys remained under the control of former commanders after the demobilization, demilitarization, and repatriation process and feared reprisals if they cooperated with the prosecutor;xxi and, third, girls may have been more likely than boys to be traumatized under examination and cross-examination considering the combined experience of armed violence and sexual violence.

None of the arguments put forward is tenable in light of the strong gender mandate vested in the prosecutor by the statute combined with the special gender-sensitive measures required of the WVU (Statute, art. 16). Manned by psychologists and social workers responsive to symptoms of traumatic stress disorders, a WVU would guarantee a vigilant response to the needs of girl combatants. And, finally, the possible retraumatization of victims of gross violations of human rights is a reality for any international court seeking justice for survivors of civil war. The response to this high probability of trauma is not to limit witness testimony and participation but to ensure that tribunal staff members are capable of supporting witnesses before, during, and after their testimony.xxii

While issues of stigma, trauma, and security fears are valid concerns for girl fighters, they can and do apply to many boy fighters. Obstacles, such as the fear of reprisals from commanders and negative reactions from family members, are common to witnesses irrespective of gender. It would appear that in the case of boy soldiers they have been overcome, not easily, but with the Office of the Prosecutor’s careful pretrial assessment and the WVU’s counseling, protection services, and follow-up care.xxiii The failure to extend this response to girls supports the claim that the prosecutor’s disproportionate representation of boy witnesses is a form of gender discrimination against girl combatants. The gender mandate prescribed by the statute was unfulfilled, and girls were denied equal access to justice.

The Berkeley Report on child witnesses at the Special Court details the case of Aisha, the only girl combatant called as a witness. Her story confirms that with political will, the special and gendered needs of girl witnesses, such as child care and protection from intimidation by an unsupportive family, can be realized and their participation in the process successfully facilitated.xxiv

Aisha was 17 at the time of demobilization and she already had three children with her bush husband. At the time of testifying she was still married to her bush husband and was raising her children with him. The Report reveals that she successfully concealed the fact that she was cooperating with the Court from her husband, because she feared that as a former RUF combatant himself, he would not support the prosecution of the alleged RUF leaders. She worked closely with the Witnesses and Victims Services and the prosecution to devise explanations for her frequent travel to Freetown and prolonged absences from her family. (Sanin and Stirnemann 2006: 16)

The prosecutor’s relationship to the process that defines victims in terms of eligibility for participation in a trial is far from impartial, and it has been discussed by feminist scholars at the domestic level with respect to such gender-based crimes as trafficking of women and domestic violence. Jayashri Srikantiah provides a review of U.S. federal immigration agencies’ construction of an iconic victim in the antitrafficking discourse. Prosecutors and agents investigating traffickers construct this iconic victim. Srikantiah (2007: 160) points out the fact that the same prosecutor who decides whether a victim would be a good witness also decides whether the victim is a victim for the purposes of the relevant remedy (a special U.S. humanitarian visa). Her analysis illustrates the conflict inherent in placing the victim-identification function in prosecution hands as each prosecutor determines subjectively who is a “deserving” victim (ibid.). In the U.S. case, lawmakers successfully used an image of the traffic victim as meek, passive, sexualized objects in order to pass protecting legislation. They ignored victims of trafficking for forced labor and emphasized the sexual exploitation of women and girls in their advocacy campaign. Srikantiah argues that this political rhetoric has an impact on the prosecutor’s identification of actual trafficking victims, with tragic consequences for victims of labor or sex trafficking who do not tell stories consistent with it (ibid.).

I find parallels between the sex-traffic narrative and the sex-slavery narrative. Srikantiah traces the need for an iconic victim back to two sources. First is the need to distinguish between trafficking victims and unlawful economic migrants. The latter are categorically denied victim status as this might legitimate their “willful” illegal entry and residence in the United States. The former are thought to enter under the complete physical and psychological control of the trafficker. Second, the stereotypical victim story of the passive and paralyzed (with fear) sex worker is a highly effective prosecutorial strategy allowing prosecutors to describe the trafficker as maximally culpable (2007: 160–61). Similarly, in the case of the Special Court, the prosecutor’s strategy required a distinction between “paralyzed” female victims of sexual violence who had taken no part in active hostilities and active combatants.

Apart from denying women and girls their own narratives of armed conflict, the prosecution’s strategy regarding the selection of witnesses reveals some damaging gender assumptions and outcomes. The first is that the testimony of boy combatants is more reliable than that of girls. The Special Court established guiding principles for working with child witnesses. With regard to witness selection, the rules specify that the prosecution should approach only the most resilient child witnesses and only those who are already resettled with their families or communities. In identifying potential child witnesses, only children in the care of their families or legal guardians should be considered (Sanin and Stirnemann 2006: 18 and 20).

This policy showed a disregard for the gendered realities of abducted girls, who for the most part experienced greater challenges to demobilization, rehabilitation, and family reunification than boys. Many girls experienced discrimination and exclusion from a demobilization, demilitarization, and repatriation program that was designed to address the needs of men and boys (who were perceived as combatants) (Mazurana and Carlson 2004: 21).xxv Thus, girls were more likely than boys to face rejection when they returned to their families with no money earned and no vocational skills acquired from participation in demobilization, demilitarization, and repatriation processes. Many girls returned home having had a child or children and with low prospects for marriage. Girls formerly associated with fighting forces were more likely to be branded “bad apples” than boys. The prosecutor’s exclusion of their narrative from the justice process reinforces this social narrative. The narrative of girl soldiers would have contributed greatly to sensitizing Sierra Leoneans about the coercive and violent society girls inhabited and navigated during their captivity. Instead, the prosecution strategy perpetuated society’s stigmatization of abducted girls.

An intersecting assumption arising from the discriminatory exclusion of girl combatants from participation as witnesses is that girls were less innocent than boys. Laura Suski’s critique of development organizations’ discourse that positions children of the South as deprived versions of children of the North is useful to my discussion.xxvi This geopolitical (North and South) binary distracts us from seeing the social and economic deprivations that prevent some children in the South from being considered priceless or worthy of protection. Suski argues that the imposition of a Northern version of child rearing, family life, and early education not only neglects alternate versions of childhood but also fails to address the complexities that children face when economic pressures take them far from the “ideal” and “normal” model of childhood (2009: 206, quoting Penn 2002: 118–32, and Penn 2005).xxvii

Adopting Suski’s (the model child) and Srikantiah’s (the iconic victim) analysis in the area of transitional justice, it is not unreasonable to speculate that the Special Court with its international positioning would struggle to place the experience of the Sierra Leonean child soldier within the dominant construction of childhood in the Western/international world.xxviii The child soldier is a victim but also an active and in some cases a zealous perpetrator of human-rights abuses. He/she is susceptible to substance abuse and other vices. Serious breaches of accepted or expected gender roles only make it more difficult for the Western gaze to assume the innocence of a child soldier. Thus, the image of a child soldier pregnant with a child, carrying her child on her back, strategically and aggressively initiating a sexual relationship with commanders in exchange for security, or engaging in sex work after demobilization is so transgressive an image of childhood that the transitional justice process could not reconcile itself to it.xxix Girl soldiers more than boys became “deviants from modern childhood,” and the narrative they would contribute from the witness stand cannot possibly be one that “pleads for the restoration of their childhoods.”xxx It would be impossible to undo or conceal that they are not virgins, that they are mothers, sex workers, and wives. The excluding outcome of the prosecutor’s strategy in witness selection indicates a failure to concede that while victims may be able to exercise some free will within exploitative relationships, this ability or agency should not negate the physical and psychological control of the exploiter (Srikantiah 2007: 161).

Suski makes the further observation that development campaigns often voice the narrative of children of the South visually, through tears or vacant looks (2009). In conclusion, I am inclined to concur with the sentiment that the narrative of girl soldiers “does not fundamentally require a voice.” This view has some resonance with the prosecutor’s application of the mass abduction and mass rape of girl soldiers as a backdrop to the justice process without actively seeking participation through the testimony of girl combatants in the courtroom.

The TRC report associated the crimes committed by the CDF, the Sierra Leone Army, and the RUF-AFRC rebels as grave violations of international humanitarian law and crimes against humanity. The report rejected the argument from some quarters of Sierra Leonean society that crimes committed by the government and its agents (including the CDF) fighting an insurgency should be judged less harshly than acts of the rebels. The TRC narrative is particularly clear with regard to violence against women that sexual violence was not limited to rebel factions (TRC 3:3: 6 and 200).xxxi

Therefore, it is striking that the prosecutor’s indictment issued against CDF leaders did not include a single charge of sexual violence. This omission makes the CDF defendants an anomaly as the other nine defendants were charged with sexual violence against women. In the following paragraphs, I will discuss the factors that contributed to the omission and also present a comparative overview of the TRC report and its inclusion of the narrative of sexual violence committed by the CDF with the Special Court’s exclusion of the narrative on sexual violence from the CDF case.

The report made a careful distinction between the CDF as a militarized agent and ally or even an arm of the government of President Kabbah and the CDF as a unit that traced its roots to a traditional hunting society.xxxii The CDF was a network of civil militiamen created in 1996 from several different units, including Kamajors, Gbethes, Donsos, Tamaboros, and Kapras, organized according to ethnicity and their district of origin (TRC 3b:3: 347). This distinction allowed the TRC to vigorously investigate allegations of sexual violence against women by certain elements of the CDF.xxxiii

The report found that the traditional initiates of the hunters’ secret societies tended to respect and uphold the rules and regulations that governed their society membership, and breaking any of the rules was taboo (TRC 3a: 558–62, 571; and TRC 3b:3: 349). Secret society rules apparently prohibited men from having sexual intercourse with women while performing their society duties, as they believed that sexual contact with women before a battle would diminish their supernatural powers of immunity in battle. The commissioners of the Sierra Leone truth commission detected scarcely any sexual violations attributed to the CDF in Sierra Leone the years before 1996 and concluded that the predecessors of the CDF, most of whom were vigilantes and hunters, did not commit sexual violations or rape systematically (Keen 2005: 91).

While many CDF combatants laid claim to being traditional hunters with origins in their secret societies that predated the conflict, the report clarified that the overwhelming bulk of the fighters, particularly Kamajors, were in fact disaffected youths who were crudely enlisted into combat through illusory ceremonies of initiation (TRC 3a:3: 558–64).xxxiv This situation arose as the armed conflict escalated, and the CDF was compelled to increase the number of recruits in its fighting forces. According to the report, the rapidity with which this expansion occurred meant that recruitment standards lapsed, numbers became unmanageably large, and the purported code of ethics was overlooked. The effect of lax enrolment procedures was that newer “initiates” into the CDF did not feel bound by age-old traditions and practices. Indeed, the new generation of CDF adopted a different ethos that was entirely geared toward war and the perceived benefits it could yield (TRC 3b:3: 352).

The report does not shy away from describing the CDF’s sexual exploitation and abuse of women and girls. It explains that because CDF units were usually attached to a specific town or village for a specific period, they were not as mobile as the RUF-AFRC. Therefore, in contrast to the “roaming detentions” of the rebels, the preferred modus operandi of the CDF was to abduct women and girls, taking them prisoner. Women would then be confined to a single secure location, usually in a village or town under the complete control of the CDF. They would often be held naked and were freely available to be raped or gang raped (TRC 3b:3: 353 and 345).

Human-rights observers and scholars gathered survivor testimony describing sexual violence committed by the CDF, and these local narratives corroborate the TRC’s narrative on the gender violence and the CDF.xxxv Many of these testimonies reveal the widely held belief among civilians and CDF members themselves that the CDF was an arm of the government or an extension of the Sierra Leone Army, thereby immune from punishment for civilian abuse. “Twenty CDF came to the guardroom and told us, the women, that we could choose between [being raped] or killed. I was raped by a young CDF on the ground of the guardroom. I told him that I was a suckling mother, but he did not care. My baby was in the room when he raped me. He made me stoop like an animal. He said, ‘I am a government man, so no one will ask me anything about this'” (Human Rights Watch 2003: 47).In the latter period of the conflict, from 1997 onward, the commission noted a marked increase in the number of violations attributed to the CDF. The report refers to the commission’s database of violations, which revealed that sexual violence was not a random act by CDF members but rather a defining act by the group committed on a widespread and systematic scale. Rape was one of their weapons of war (TRC 3b:3: 355). The conclusion is drawn by the report that CDF perpetrators demonstrated twice as high a propensity to commit rape than their propensity to commit other violations overall. CDF forces acted with a savagery comparable to the RUF toward women and girls (TRC 3b:3: 351–55).

The prosecutor’s 2004 indictment issued against CDF leaders Samuel Hinga Norman, Moinina Fofana, and Allieu Kondewa is at odds with the TRC’s charge that the CDF used sexual violence as a weapon of war. The accused were jointly charged with crimes against humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II (war crimes), and other serious violations of international humanitarian law.

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I The brief nature of my stay in Sierra Leone meant that I conducted interviews solely with the Victims and Witness Unit at the Sierra Leone Special Court. I was unsuccessful in securing an invitation as a guest researcher from the Registry before my arrival or in establishing confidential relationships with Special Court staff. The lack of institutional accreditation made even a physical entrance into the Special Court burdensome (due to security checks), which shaped my decision to focus on more accessible local institutions, such as the police, the Ministry of Gender, NGOs, and international NGOs. Jayashri Srikantiah’s (2007: 158) experience and observation that despite an inability to access empirical evidence from institutions, hypotheses can be drawn by researchers in order to identify flaws in the institutional implementation of gendered processes was instructive to me at this point.
ii A suspended death sentence hung over Sankoh’s head at the signing of the Lomé accord. This arose from his arrest (detention under house arrest) in 1997 by Nigeria, which subsequently handed him over to Sierra Leone in July 1999. The United Nations, the Organization of African Unity, and the Commonwealth were moral guarantors of the Lomé accord. Representatives of Benin, Burkina Faso, Ghana, Guinea, Liberia, Libya, Mali, Nigeria, Britain, and the United States were also present (Adebayo 2002: 97–99). The special representative of the secretary-general appended to his signature of the Lomé agreement a statement that the United Nations did not consider that the amnesty provisions of the agreement would apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.
iii Other important factors for the failure of the Lomé accord include the destabilizing influence of Liberia, which continued to provide arms and purchase diamonds from the RUF; obstructionism by the RUF leadership; the exclusion of the AFRC-SLA from the agreement; the weakness of support from the international community in the demobilization process; and the weak international peacekeeping effort (Keen 2005: 253).
iv Special provisions were provided for the potential prosecution of juvenile offenders, or those children over fifteen but under eighteen years of age at the time of the crime (Special Court Statute, art. 8 [2]).
v Foday Sankoh died of ill health on 29 July 2003 in the hospital in UN custody. Samuel Hinga Norman, a leader of the CDF, died on 22 February 2007 following surgery while in UN custody. Sam Bockarie, an RUF general, was reportedly shot dead in the Ivory Coast on 6 May 2005 when Liberian government forces attempted to arrest him. Johnny Paul Koroma, the former coup leader and head of state of Sierra Leone (May 1997–February 1998), was indicted as the chairman of the AFRC. He fled Sierra Leone before he could be tried. His whereabouts are still unknown.
vi The Special Court Agreement Act was enacted by Sierra Leone’s Parliament in 2002. The act gives legal effect to the powers and competences of the Special Court within the legal system of Sierra Leone.
vii An Amnesty International press release also broached concern that the work of the Special Court made little impact on Sierra Leoneans (Amnesty International 2009). I was in Sierra Leone when Charles Taylor was extradited to Sierra Leone by the Nigerian government on 29 March 2007, and Samuel Hinga Norman was airlifted to Dakar, Senegal, on 17 February 2007 for surgery and died from medical complications on 22 February 2007. Norman was described in the CDF indictment as the national coordinator of the CDF and the leader and commander of the Kamajors with de jure and de facto command and control over operations of that group. On both occasions, I called one of my Sierra Leonean host families for a security briefing before leaving my lodgings to head into downtown Freetown. My informants in this case were a couple, Mr. and Mrs. Koroma (pseudonyms), both of whom worked at a ministry in downtown Freetown. Mr. Koroma was a proud card-carrying Kamajor. In both cases, my family members were amused that I imagined news from the Special Court would affect their routines. They told me in no uncertain terms that I should continue with my regular business and report to work exactly as they intended to. Their message to me was that life went on for Sierra Leoneans, and the work and dramas of the Special Court held no special significance for them.
viii The Statute for the Sierra Leone Special Court provides as follows: Article 5 (a)—Crimes under Sierra Leonean Law: The Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law: (a) Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): (i) Abusing a girl under 13 years of age, contrary to section 6; (ii) Abusing a girl between 13 and 14 years of age, contrary to section 7; (iii) Abduction of a girl for immoral purposes, contrary to section 12.
ix According to Chapter 31 of the Laws of Sierra Leone, Article 15 of the PCCA provides that when a person is accused of defiling a minor it shall be a sufficient defence if the person so charged had reasonable cause to believe that the girl was of or above the specified age. And article 10 provides that defiling a minor is a misdemeanor—unless the child was a common prostitute or of known immoral character.
x Three of the Special Court judges are Sierra Leonean, namely, Justice Rosolu John Bankole Thompson (trial chamber), Justice Jon Kamanda (appeals chamber), and Justice George Gelaga King (presiding judge of the appeals chamber). Other judges have originated from Senegal, Uganda, Cameroon, Nigeria, Samoa, Austria, Canada, and Northern Ireland.
xi Similarly, a high representation of women in Parliament should not lead to the presumption that women-friendly laws will follow. If the institutional culture of Parliament remains patriarchal, colonial, and elitist, its laws will continue to reflect these characteristics irrespective of the gender of parliamentarians. I thank Karen Colvard of the H. F. Guggenheim Foundation for raising this point at the Emory University conference on Gender Violence and Gender Justice in May 2009 in her presentation “Western Feminism and Gender Issues in the Developing World.”
xii Article 8 (1) of the statute provides that the Special Court and domestic courts shall have concurrent jurisdiction and article 8 (2) provides that the Special Court shall have primacy over national courts, and further, that at any stage of the procedure, the Special Court may formally request a national court to defer its competence.
xiii Article 6 (c) of the charter of the International Military Tribunal (Nuremberg) does not refer to rape as a crime against humanity and only includes “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds.”
xiv Article 2 of the Sierra Leone Special Court Statute provides that “the Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: (a) Murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence; (h) persecution on political, racial, ethnic or religious grounds; and (i) other inhumane acts.” Article 7 of the statute of the ICC (Rome Statute) extends the crime of rape in a similar fashion: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity are listed.”
xv Article 3 of the Sierra Leone Special Court Statute provides that “(a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any other form of corporal punishment; (c) taking of hostages; and (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”
xvi I compare the Special Court prosecutor’s “gender mandate” to the ICTR prosecutor’s “genocide mandate.” As I described in Chapter 2, the “genocide mandate” was contained in the Security Council Resolution stating the international community’s conviction that genocide occurred in Rwanda. Based on this mandate, it would have been unthinkable for the prosecutor for Rwanda not to include a genocide charge in every indictment it issued. I elaborated on this genocide mandate and its impact on the prosecutor’s investigations of gender-based violence in Chapter 2.
xvii Article 16 (4) of the Special Court statute divides the WVU into two units: a protection, security, and movement unit with nearly thirty staff members and a psychosocial support unit with around ten staff members. The former manages all logistical and security arrangements for witnesses, including the identification and maintenance of safe houses.
xviii Dyan Mazurana and Khristopher Carlson (2004: 12) provide an interesting perspective of a former girl fighter who argued that combining “marriage” with fighting was a strategy for security. At the age of fifteen, she was an RUF frontline fighter, and felt it was better to be a fighter as well as a wife to a common soldier because you could better protect yourself with your own weapon, you had greater access to food and loot, and your chances of escape were greater, unlike captive “wives” of commanders who were closely guarded with little chance of escape. This testimony shows how girls donned different roles strategically and that classifying this fifteen-year-old rebel frontline fighter as a wife and ending the analysis at that point is to produce an incomplete and even demeaning narrative.
xix Sesay, Kallon and Gbao, Judgment Summary 25-02-2009. The trial chamber confirmed the prosecutor’s limited interpretation of active hostilities: the chamber has found that after their military training, the children were assigned specific functions within the RUF. Certain children were retained by commanders for domestic labor or to go on food-finding missions, and the chamber has found that this use does not constitute active participation in hostilities (para. 49).
xx See Susan Shepler (2005) on the cultural context of child recruitment into fighting forces in Sierra Leone. Other groundbreaking studies on the central role that girl soldiers play in Africa’s armed conflicts include Mazurana and Carlson (2004), Save the Children (2004–2005) and Mazurana and McKay (2006).
xxi Sierra Leone ended its national demobilization, demilitarization, and repatriation program in December 2003. Since the program began in 1998, 72,500 former combatants have been demobilized (Mazurana and Carlson 2004: 2, quoting Bradley and Fusato and Maughan 2002). This figure includes 4,751 women (6.5 percent) and 6,787 children (9.4 percent), of whom 506 are girls (Mazurana and Carlson 2004: 2).
xxii The Sierra Leone Special Court’s WVU demonstrated a commitment and an ability to provide follow-up supervision and support to witnesses. See Saleem Vahidy et al. (2009) for an internal WVU review of the services it provided to victims and witnesses.
xxiii The point is that boys also suffer serious social and psychological repercussions after returning from the bush. This experience may not be linked to bearing children or the loss of virginity as is the case with girls returning from the bush. However, this should not per se make their experience less harmful. It should be viewed instead through a gender lens, which would reveal the very specific ways boys experienced harm and how it affected their reintegration after demobilization.
xxiv The Berkeley Report does not elucidate on whether the prosecutor regarded Aisha’s relationship as “marriage” or “sexual slavery” and whether the witnesses and victims services supported her in seeking alternatives to this relationship. The report notes that Aisha is a pseudonym.
xxv According to officials organizing the demobilization, demilitarization, and repatriation process, “wives,” including those who had been abducted, were to be explicitly excluded from formal entrance into the program. The focus of the program was on the main fighting forces, and “minority” groups would not be taken into consideration. However, since women and girls frequently played multiple roles, a narrow classification of them as “wives” resulted in programmatic errors. Mazurana and Carlson (2004) found that while 60 percent of women and girls indicated having served as a “wife,” only 8 percent claimed that it was their primary responsibility or role.
xxvi I adopt these terms in this specific instance in the context of the North as representing (in the most broad and simplistic way) the wealthy developed nations and the South as representing developing nations. In this paradigm, the South is dependent on the North for development assistance, agency, and policy. The North is positioned as economically superior and leverages this status to assert moral and cultural superiority.
xxvii The UN rule of law tools for postconflict states refers to the fact that children are often excluded from justice processes by “widespread traditional views of childhood across all regions of the world” (OHCHR 2009: 20).
xxviii See Balakrishnan Rajagopal (2006) for a discussion on the West as the source of the international human rights law framework.
xxix See Mats Utas (2005) for a detailed analysis and case study of civilian girls and women in the context of the Liberian civil war who employed their sexuality as a survival tool to compete for and win senior military men and the relative security these relationships provided.
xxx I borrow the phrase “deviants of childhood” from Laura Suski (2009: 207).
xxxi The report concludes that women and girls were deliberately targeted by all armed groups. It also condemns the sexual exploitation of women and girls by humanitarian workers who were known to have demanded sex in exchange for assistance.
xxxii Mazurana and Carlson (2004: 11) point out that the government supplied the CDF with weapons and financial and logistical support.
xxxiii The decision not to exempt some groups from accountability is in sharp contrast to the South Africa Truth Commission, which failed to comprehensively facilitate truth-telling processes with respect to violence committed in extraterritorial liberation camps of the (now ruling) African National Congress.
xxxiv Another myth that was left untouched by the Sierra Leone Truth Commission was that women did not play a military role in the CDF. Mazurana and Carlson’s (2004: 12–13) field-based data on the demobilization, demilitarization, and repatriation process revealed the presence of fully initiated female members in the CDF beginning in the early 1990s. Women were included in all ceremonies, amulets, and scarification; they served as frontline fighters, commanders, initiators, spiritual leaders, medics, herbalists, spies, and cooks.
xxxv See Macartan Humphreys and Jeremy M. Weinstein (2004: 10) whose interviews with CDF combatants revealed many instances of sexual violence. “One Kamajor farmer noted that whether or not you were raped depended on whether the woman was pregnant, nursing a child, or younger than 12 years old.”

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