Conference Paper on the Special Court for Sierra Leone

By Patrick Hassan-Morlai,London, UK.

Proposed Title

“Forced marriages” and “conscription and enlisting of children under the age of 15 years”: what precedent has the Special Court for Sierra Leone set for dealing with these offences?

Paper Abstract

Between 12th and 22nd June 2007, the author of this paper was at the Special Court for Sierra Leone researching on the topic “Evidence in international criminal trials: Lessons and contributions from the Special Court for Sierra Leone”. He witnessed the handing down of the first verdict of the Special Court for Sierra Leone on the 20th June 2007 in the AFRC Case. Accordingly, this paper is an excerpt from that research.

This paper will analyse the legal reasoning in the judgment delivered by the Special Court on 20th June 2007 with a view to identifying legal principles relevant to the offences of “forced marriages” and “conscription and enlisting of child soldiers”. This paper will focus on whether the Special Court has been able to lay down clear guidelines that will aid future prosecutors or defence counsels to successfully prosecute or defend, respectively, these offences in international criminal tribunals.

The three AFRC accused, Alex Tamba Brima, Brima Bazzy Kamara(photo) and Santigie Borbor Kanu, were found guilty of 11 out of 14 charges. Among the charges against Brima, Kamara and Kanu include the offences of forced marriage (a crime against humanity) and conscripting and enlisting children under the age of 15 to participate in hostilities (a serious violation of international humanitarian law). The June 20 AFRC verdict has been widely welcomed. The UN Special Representative for Children and Armed Conflict, Ms Radhika Coomaraswamy notes that the Special Court’s verdict in the AFRC case marks the first conviction by an international tribunal for the recruitment and use of child soldiers in armed conflict. Ms Coomaraswamy further notes, “[t]his first verdict sends a strong signal to the perpetrators and it will have a crucial deterrence effect. These crimes have to stop. This first triple conviction will motivate the international community to pursue its fight against impunity”. On forced marriage, a commentator at the Australian National University says “[f]or the first time in international legal history, ‘forced marriage’ is being prosecuted as a ‘crime against humanity’ in Sierra Leone’s post-conflict ‘Special Court’”.

It is acknowledged that the Special Court has made a significant contribution in recognising that these two offences now form part of the mainstream offences in international criminal law. This is a positive development to, for example, the ITCY case of Kunarac where a conviction was entered for enslavement as a crime against humanity involving rape, treatment of girls as private property and forced performance of household chores. Gender crimes are no longer limited to rape and sexual violence.

Nonetheless, recognising an offence in international law is a different issue altogether to proving successfully the elements of that offence. In the AFRC judgment, the Special Court remarks that ‘[t]he Prosecution evidence in the present case does not point to even one instance of a woman or girl having had a bogus marriage forced upon her in circumstances which did not amount to sexual slavery....’ and that “the totality of the evidence adduced by the Prosecution as proof of “forced marriage” goes to proof of elements subsumed by the crime of sexual slavery.’ Although the Special Court has recognised the offence of forced marriage, it found that the prosecution failed to prove the elements of this offence for a successful conviction. Instead of proving the elements of forced marriage, the prosecution adduced evidence that relating to the crime of sexual slavery (Count 7 which itself was struck off for duplicity). For this reason, the Special Court also dismissed the charge under Count 8, which is forced marriage. Justice Doherty respectfully disagrees with this finding of the majority. The Justice’s view is that “...‘forced marriage’, is of sufficient gravity to meet the requirements of an ‘other inhumane act’ as per Article 2(i) of the Statute.”

In the circumstances, this paper argues that the failure to prove successfully the elements of forced marriage limits the extent of the precedential value of the Special Court judgement in relation to this offence. This paper also argues that the fact that the offence forced marriage has been prosecuted as a separate sexual offence could not necessarily be used as a carte blanc to suggest that future prosecutions of this offence will be successful. A successful prosecution might have set such clear principles for future use in international criminal trials involving this offence. This seems to explain the SCSL Prosecutor’s resolve in appealing this aspect of the AFRC Judgement of June 20. Chief Prosecutor Stephen Rapp’s position is that the experience of women in conflict is often a lot more complex than being the victims of rape and “[t]his is why we wanted to have forced marriage recognised as a crime that took place in Sierra Leone, and we will continue to try to have this recognised beyond this appeal.”

There is also an issue relating to the mode of criminal responsibility in the AFRC case. This paper deals with, in particular, the Special Court’s findings on the issue of “the greatest responsibility requirement” in relation to child soldiers and argues that the Special Court either confuses the issues or simply meddles with aspect of these issues, which would have been better left alone. The Court agrees with the Prosecution’s interpretation that the test for those who bear the greatest responsibility is one of a prosecutorial discretion. Accordingly, as this is not one of a jurisdictional requirement, the Court accepts that the discretionary test, inter alia, was intended to restrict the number of accused to appear before it to a small category of individuals determined by the prosecutor and not the Court. However, the Special Court takes the view that the greatest responsibility requirement could potentially apply to an array of individuals ranging from military and political leaders down to individuals as young as 15 years of age. It is acknowledged that the Special Court is entitled to consider its Statute in its totality when interpreting and applying any of its provisions. However, on this occasion, this paper argues that the reference to individuals as young as 15 years of age in describing the classes of people who may potentially be covered by the greatest responsibility requirement is unnecessary. All three accused persons are not aged 15 or under. Hence, it appears that the reference to individuals as young as 15 years of age is unwarranted. To make such reference after having held that the purpose of the greatest responsibility requirement is to restrict the number of accused persons, potentially creates conflict in the reasoning of the Court.

This seemingly inconsistent approach may undermine the precedential value of the AFRC judgment. This paper concludes that the AFRC judgment, though welcomed for recognising the offences of forced marriage and child conscription/enlistment; it may not necessarily be the authority for future cases involving these offences. This may only be the case following further refinements of the reasoning in this judgement on these offences in later caselaw of the Special Court or other international criminal tribunals.