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...the male inhabitants and the capture of the women, who subsequently became the wives of their conquerors. No requirement was essential for the validity of such marriage other than a public declaration by the captor of his intention to cohabit with his captive followed by actual cohabitation. Such wife was, however, regarded as a slave.... Nowadays, there are no longer inter-tribal wars in the country and, with the abolition of slavery in 1928, this kind of marriage no longer exists." (1)
I.S., ... abducted and gang raped by the West Side Boys from January to August 1999, explained how Commander "Blood" had initiated the "wife" selection process: "One of the commanders said he was going to amputate all of us. But another commander, C.O. Blood, said 'Don't kill them, let's chose them as wives.' Then we were divided up. The one who seemed to be in charge, C.O. Blood, chose me. When he looked at me I was frightened. His pupils were huge--he was high on drugs. He took me to a house and told me to lie down on the ground. He said if I did not allow him to have sex, he would kill me." (2)
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During the civil war that ravaged Sierra Leone from 1990 to 2001, thousands of women and girls were raped, abducted, and taken to Revolutionary United Front (RUF), West Side Boys, or Armed Forces Revolutionary Council (AFRC) rebel camps. (3) They were assigned to a man and, from that day forward, had to submit to him sexually and perform countless domestic tasks for him. This relationship between the rebels and their captives was commonly known as "forced marriage," with the captive women testifying that they were assigned to a "husband" or "rebel husband," and the rebel men referring to their captives as "wives" or "bush wives." (4) The type of marriage that was thought to have disappeared with the conclusion of inter-tribal wars and the abolition of slavery appeared to have returned to Sierra Leone from its past, invigorated and with new force.
In their articles about the conflict, reporters used the terms "wife," "husband," and "marriage" (5) in quotation marks. Quotation marks were also consistently used for those terms by investigators who reported on the "forced marriage" phenomenon occurring in different armed conflicts, (6) clearly indicating their uneasiness, if not disbelief, in the appropriate use of familial labels to describe these relationships. In fact, these reporters stated on numerous occasions that the use of such matrimonial terminology to refer to the type of situation suffered by Sierra Leonean women was inappropriate: "[d]escribing this experience as a 'forced' marriage is a complete misrepresentation and distortion of a [girl's] experience"; (7) "[t]he arrangement was sometimes referred to as 'forced marriages' and the women held as 'wives,' but these terms obfuscate the total lack of consent by the women and the coercive conditions under which they were held." (8)
This Article will explore the use (and misuse) of the word "marriage" to describe the relationship between rebels and their captured "wives," as well as its potential impact on the customary law of marriage. Part I sets forth the argument that the term "marriage" is a criminal misnomer that masked what, under international criminal law, was clearly a situation of sexual slavery. Part II examines the customary law of marriage in Sierra Leone to help explain why the word "marriage" may have been considered an appropriate label to describe the rebel-captive relationship. It uncovers the similarities between "forced marriages" and marriages under customary law, most significantly the possibility that sexual slavery may occur within customary law marriages.
To that end, Part III proposes that categorizing "forced marriages" as sexual slavery has a potentially transformative effect on the customary law of marriage. Recognition of the right of female sexual autonomy is essential in amending customary law so as to prevent a recurrence of "forced marriages" or the existence of sexual slavery within customary marriage. Established to prosecute crimes committed in Sierra Leone since November 30, 1996, the Special Court of Sierra Leone could use the language of sexual autonomy in defining sexual violence crimes by relying on existing international criminal law. As this Article discusses, the International Criminal Tribunal for the Former Yugoslavia has recognized a woman's right to sexual autonomy. Should the Special Court use similar reasoning in pending cases, it would create domestic precedent for the recognition of such a right. Its decisions could have a transformative effect not just on the laws of Sierra Leone, but on human rights discourse internationally.
Part IV examines the role that the Sierra Leone Truth and Reconciliation Commission had--and its Report continues to have--in initiating the movement for reform of traditional practices that violate women's rights. The Truth and Reconciliation Commission was in a privileged position to connect the sexual violence suffered by women during the conflict to their pre-conflict status and, in so doing, directly denounce violations of women's rights brought about by customary law. It played an essential role that was complementary to the Court's. The Article concludes with the observation that the power of international criminal law is not limited to its ability to shed light on customary practices that discriminate against women. It also has the potential to shape the law and/or instigate legal reform when considered or relied upon by transitional justice institutions such as the Special Court and the Truth and Reconciliation Commission. In this way, international criminal law may aid in the creation of equal status for Sierra Leonean women during times of peace and during times of conflict.
I. "FORCED MARRIAGE" DURING THE SIERRA LEONE CONFLICT: ITS TRUE NATURE UNCOVERED
A. A Marriage in Quotation Marks
A "forced marriage" during the Sierra Leone conflict would begin when rebels attacked a village, wreaking violent havoc. (9) The "future wife" would be utterly terrified, witnessing appalling atrocities committed against the women of her community: (10) the rebels would insert boiling oil and embers into the vagina of some victims; (11) amputate arms and hands; (12) pluck nursing infants from their mothers' arms, slice them in two, or toss them in the air; (13) cut open the bellies of pregnant women to confirm their bets on the sex of the unborn child. (14) Girls were brutally gang raped vaginally and anally. (15) They were often still virgins, only eleven or twelve years old. (16) In this psychologically devastating context, "marriage" would begin; a girl would be abducted and assigned to a combatant or commander. (17) Members of her family who tried to intervene would be killed. (18)
The new "wife" was forced to follow her "husband" to the rebel camp. H.K, a former rebels' abductee, reported to Human Rights Watch that she was completely at her "husband's" disposal sexually, made to do whatever he liked, whenever he liked: "He used to sex me twice every night. He made me take his penis in my mouth. I tried to refuse him but he always threatened to kill me." (19) The rebels, who generally exercised exclusivity over their "wives," (20) made the decisions about their pregnancies. A rebel would force his "wife," under the threat of death, to abort a child she was expecting when he abducted her (21) or to keep a child if it was his. (22) In addition to the sexual aspect of life with a "rebel husband," the "wife" was forced to perform a vast array of domestic tasks--cooking, laundry, cleaning, farming, and carrying looted items (23)--and was subjected to abuse. "Bush wives" were frequently beaten with sticks and guns, and at times, sexually tortured. (24) They were abandoned when their "husbands" got tired of them, or when they became too ill to meet their demands. (25)
How could they get out of their situation? Trying to flee meant risking their lives: "I wanted to run away, to escape, but there was no way. If you were caught trying to escape, you were killed or put in a box." (26) Running away from a rebel faction also meant risking capture by another. (27) The rebels made escape more difficult by carving the faction's letters--"RUF" or "AFRC"--onto the chests of their "wives." (28) Women who were caught by government forces and suspected of being rebels were often killed. (29) The obstacles to escaping also loomed heavily on another front: "In many instances, women--intimidated by their captors and the situation they were in--felt powerless to escape their lives of sexual slavery, and were advised by other female captives to tolerate the abuses, 'as it was war.'" (30) The rebels "perniciously instilled fear in their 'wives' by telling them that their families would not accept them back." (31) Indeed, "ex-wives" of rebels have experienced ostracism from their community and rejection from their former husbands. (32) What were the economic and social alternatives for these women if they did leave their "husband" who, at least, provided them with minimal protection and means of support? (33) "Numerous victims end up being commercial sex workers, selling their bodies for as little as U.S. 50 cents." (34) After seeing their family decimated and becoming accustomed to their new life, some--particularly those who were abducted young and have had children fathered by a rebel--even came to consider their "rebel husband" as a surrogate family. (35) Those who stayed with their captors considered "themselves married ... and believ[ed] that they [had] no choice but to remain with their husbands." (36) The number of "wives" who remain with their abductors today is unknown. (37)
Investigators into similar forms of sexual violence during armed conflict maintain that this situation is in no way one of marriage. (38) Gay McDougall, United Nations Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict, states that "women [are] being repeatedly raped by soldiers under the guise of 'marriage."' (39) Women forced to become such "wives" in Rwanda were described as being "in fact captives, looted possessions of the militiamen, held in sexual slavery." (40) This Article argues that the situation of abducted Sierra Leonean women was, and in some cases still is, one of sexual slavery, poorly veiled by the euphemism "marriage." (41) The Special Court for Sierra Leone, (42) under its statute, has jurisdiction over the crime of sexual slavery when it is committed as part of a widespread or systematic attack against a civilian population. (43) Many accused are now being charged with the crime against humanity of sexual slavery before the Special Court. (44) The Court is therefore in the best position to shed light on the true nature of "forced marriages."
B. Sexual Slavery Unmasked
According to Barry, in a very broad sense, "[f]emale sexual slavery is present in all situations where women or girls cannot change the immediate conditions of their existence; where regardless of how they got into those conditions, they can not [sic] get out; and where they are subject to sexual violence and exploitation." (45) The crime of sexual slavery appears for the very first time in the Rome Statute of the International Criminal Court, (46) where it is not defined. However, its elements are enumerated in the International Criminal Court's Elements of Crimes, which was designed for use as an interpretive guide by ICC judges. (47) Sexual slavery is also listed as a crime against humanity in the Statute of the Special Court for Sierra Leone, but is not defined. (48) The Special Court has found the elements of the crime of sexual slavery under its statute to be similar to the elements of the crime against humanity of sexual slavery enumerated in the Elements of Crimes. (49) That the Elements could serve as persuasive authority for the Special Court is perhaps not surprising. The Rome Statute sets the norm in international criminal law, and, the Special Court's statute mirrors that of the Rome Statute regarding crimes of sexual violence. (50) There is currently no further case law on sexual slavery under either of these instruments. (51) Nonetheless, legal authors consistently view sexual slavery as a specific form or subcategory of enslavement, characterized by its sexual dimension. (52) Enslavement has been defined in the international jurisprudence, in Prosecutor v. Kunarac, as "the exercise of any or all of the powers attaching to the right of ownership over a person." (53) The indicators listed by the Trial Chamber to infer a situation of enslavement include "control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality, forced labour" and the buying, selling, or inheriting of a person or his or her labour or services. (54) This Article proposes that, by listing the crime of sexual slavery, the Statute for the Special Court and the Rome Statute specifically recognize cases in which slavery includes the specific factor of control of someone's sexuality, making such cases more visible and thus facilitating their prosecution. (55) Control of someone's sexuality may thus be considered the actus reus of the crime of sexual slavery, (56) or its "key indicator." (57) In the Kunarac case, the court found the accused guilty of enslaving the women they held captive in their apartments namely because they exercised control over the women's sexuality by extracting sexual favors from them at will. The rebels in the Sierra Leone conflict similarly exercised control over their "wives'" sexuality; these women had to submit, often under threat of violence, to all sexual contact desired by a sexual partner they did not choose. The rebels also exercised control over their reproductive faculties, ordering them to terminate pregnancy or forbidding them from doing so.
What makes these acts ones of control over the women's sexuality is that the women had no escape. They were captives or, as specified in the Elements of Crimes, they were deprived of their liberty. (58) The importance of not interpreting this deprivation of liberty in the narrow, physical sense of imprisonment was emphasized by some delegations during the negotiations of the Elements of Crimes:
[T]he expression 'similar deprivation of liberty' does not exclude certain situations, which took place during the Rwandese and Bosnian conflicts, in which women, sexually abused, were not locked in a particular place and therefore were 'free to go,' but were in fact deprived of their liberty as they had nowhere else to go and feared for their lives. (59)
As McDougall stated:
The mere ability to extricate oneself at substantial risk of personal harm from a condition of slavery should not be interpreted as nullifying a claim of slavery.... This is particularly true when the victim is in a combat zone during an armed conflict, whether internal or international in character. (60)
Thus, the International Criminal Tribunal for the Former Yugoslavia (ICTY) recognized, in the Kunarac case, that the women were held captive in the apartments of the accused, even though the accused sometimes left the apartment door unlocked or gave the women the key: "[T]he girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to free. They were also aware of the risks involved if they were re-captured." (61) The Serb soldiers, well aware of this situation, exploited the vulnerability of the women, as did the rebels during the conflict in Sierra Leone.
The "wives," although not chained or confined, were captives. The rebels took deliberate measures to prevent them from escaping: they threatened the women with death if they tried to flee, carved the faction's initials onto their chests, and exercised pernicious psychological control over them by making them fear that their families would ostracize them. But the rebels, as in the Kunarac case, did not have much to fear by "leaving the door unlocked"; where could their "wives" go? With civil war ravaging the country, they would either be captured again or possibly subjected to even more appalling violence. Many of them had lost their families and had limited means of survival without this "husband," who at least offered some protection and support. The rebels took advantage of this overall situation, which made the women particularly vulnerable to subjugation.
The argument may be raised that these women consented to the arrangement; particularly those who "chose" to remain with their "husbands" after the conflict ended and were therefore no longer captives or deprived of their liberty. However, in Kunarac, the ICTY indicated that no one can consent to being enslaved. (62) The Appeals Chamber stated that lack of consent is not an element of the crime of enslavement, and that, to the extent it might be relevant from an evidential point of view as going to the question of whether the Prosecutor has established that a power attaching to the right of ownership has been exercised, "circumstances which render it impossible to express consent may be sufficient to presume the absence of consent." (63) Those circumstances include "the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim's position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions." (64) If these factors, which were clearly present when the victims were abducted and throughout the conflict, persist after the conflict has ended, the women cannot have consented to staying with their "husbands." In such cases, given their limited socioeconomic options, the psychological pressures and the physical abuse from their "husbands," it is not implausible to believe that it would have been impossible for them to have given any real consent.
Other indications of enslavement defined in the Kunarac case are also found in the "forced marriages" that prevailed in Sierra Leone. The ICTY considered the domestic tasks the Serb soldiers made their captives perform--cooking, washing, cleaning--as forced labor, an indication of enslavement. (65) The rebels also exacted forced labor from the "bush wives," who had to perform the same domestic chores, in addition to farming and carrying looted items. Another indication of enslavement is the use of force or subjection to cruel treatment and abuse. (66) The rebels, as previously indicated, commonly beat their "wives." An additional factor that may be considered, but that is not a requirement for enslavement, is the provision of a monetary consideration; (67) this factor, however, is absent from the "forced marriages" in Sierra Leone, as the bush wives were not acquired in exchange for monetary or other compensation.
Thus, the mask of marriage falls, and the true face of the situation, with features of sexual slavery, is revealed. One question, however, remains to be asked and is certainly worth analysis: why was the concept of marriage used to describe this situation? The type of marriage that prevailed during the conflict is clearly not the same as a civil marriage presided over by a civil status officer. (68) A "forced marriage" lacks two essential elements to be considered a valid marriage under customary law: the consent of the wife's family, and the payment of a consideration (the future husband's gift of property or money to the wife's family). (69) And yet, the term "marriage" was used by the victims in their testimonies. One victim reported that: "I was taken as a wife by a commander.... He raped me everyday.... He said he didn't have a wife so I cooked and washed for him." (70) Could it be that the captivity of women during the Sierra Leone conflict was understood and referred to by the victims and their aggressors as "marriage" because the women were required to fulfill a role similar to that of wives in times of peace? Are there similarities between "forced marriage" during times of war and marriage during times of peace in Sierra Leone?
II. CUSTOMARY MARRIAGE IN SIERRA LEONE: THE EXPLOITATION OF WOMEN MASKED BY TRADITION
Customary law is ... the centerpiece of African culture. Unfortunately, it is also the source of women's disempowerment. (71)
A. Foray into Customary Law
Customary law, which is unwritten, is recognized by the Constitution of Sierra Leone and is defined therein as "the rules of law by which customs are applicable to particular communities in Sierra Leone." (72) Applied in the provinces by the local courts, which are made up of elders and tribal chiefs, customary law governs the everyday lives of more than half of the population, (73) the majority of which is rural. (74) This Article will therefore focus on customary marriage, although it coexists in Sierra Leone with other types of marriage. (75)
In customary law, marriage serves three main purposes: procreation, (76) the provision of domestic labor by the woman ("to take care of the matrimonial residence, do the domestic work, care for the children, and work for her husband as directed by him"), (77) and the creation of an alliance between two families. In fact, customary marriage has traditionally been considered the union of two families rather than two individuals. (78) While the consent of the wife's family is necessary for a valid marriage, that of the wife is not. (79) Customary marriage often takes place when girls are very young, as soon that they have developed breasts, started menstruating, and been initiated in women's secret society. (80) This initiation involves the traditional practice of female circumcision, believed to encourage virginity until marriage and faithfulness thereafter due to its diminishment of sexual pleasure. (81) In a society where remaining a virgin until marriage is a fundamental value, parents hasten to marry their daughters when they reach puberty in order to relieve themselves of the enormous responsibility of guarding their virginity. (82) Families may even coerce them into these marriages. (83) In many cases, girls are destined to a union to which they have not consented, (84) which might be termed a "forced marriage." (85) It would appear that the consent of the bride to be is being sought more and more in modern Sierra Leone, (86) which would make these unions more like arranged marriages in which the parties consent to the parents' choice. (87) Different factors, however, make it very difficult to determine whether the bride-to-be "consents" to the union, especially when she is only a child:
Although the...
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