Sierra Leone - May 2003
The Coalition on Women's Human Rights in Conflict Situations is comprised of lawyers, legal scholars, women's rights activists and nongovernmental organizations concerned with international justice, whose mandate is to ensure that crimes against women are adequately examined and prosecuted. The Coalition seeks solutions to the invisibility of women's human rights abuses in conflict situations, to condemn the practice of sexual violence and other inhumane treatment of women as deliberate instruments of war, and to ensure that these are prosecuted as war crimes, torture, crimes against humanity, and crimes of genocide, where appropriate. Working at the local and international levels, Coalition members act as a resource for consultation and debate on substantive issues related to the integration of a gender perspective in post-conflict transitional justice systems. Coalition efforts also seek to strengthen international and regional capacity to monitor women's human rights conflict and post-war situations through the creation of appropriate mechanisms of accountability and the assessment of their transferability to other contexts.
This submission was drafted by Coalition members (in alphabetical order): Gaelle Breton-Le Goff, McGill Working Group on International Justice; Rhonda Copelon, International Women's Human Rights Law Clinic (IWHR), City University of New York School of Law; Isabelle Solon Helal, Rights & Democracy (International Centre for Human Rights and Democratic Development) and Binaifer Nowrojee, Harvard University Carr Center for Human Rights Policy; with the help of intern Karine Bélair. The work of Human Rights Watch and Physicians for Human Rights is gratefully acknowledged and heavily utilized in this submission.
Members of the Coalition also include Jennifer Green and Irene Baghoomians, Center for Constitutional Rights; Ariane Brunet, Rights & Democracy (International Centre for Human Rights and Democratic Development); Annie Bunting; Betty Murungi, Urgent Action Fund; Jane Rocamora, Harvard Immigration and Refugee Clinic at Greater Boston Legal Services; and Anne Saris, McGill Working Group on International Justice.
F.K., a fifteen-year- old girl was raped by the RUF in Lunsar in Port Loko district in May 2000 and witnessed the sexual mutilation of a pregnant woman as well as the killing of her three male relatives, and six amputations:
"I was raped when the RUF attacked Lunsar in May 2000 by four rebels including one man called "Put Fire," who had made me his rebel wife from 1997 to 2000."[1]
Rape of women in wartime is an act of hatred, dominance and violence that targets women's sexuality and gender roles. Women are generally treated as the property of the community the soldiers seek to conquer and subordinate. They are a form of "booty" rewarding soldiers for their bravery and to keep them fighting. Rape and sexual violence are also weapons of war serving military and political goals of the conflict. Through rape and sexual violence, one group of men assert their hatred of and masculinist superiority over women by inflicting unspeakable physical and emotional brutalities, isolating them through stigma and degradation, and rendering them, in some cases, incapable of reproduction or participation in family and community life. Rape and other sexual violence also humiliates and indirectly tortures, disrupts and destroys family relations, and the integrity and culture of the community. In some cases, the goal is genocide and ethnic cleansing; in others, it is conquest, subordination, terrorization, and social degradation. Combatants who rape in war often explicitly link their acts of sexual violence to their hatred of women and to the goals of destruction and domination of the community at large.
Sexual violence against women is one form of gender violence that can be committed against both men and women. Gender in international law refers to the differently constructed roles of men and women and the hierarchy of power between men in women in which the masculine is associated with power and superiority and the feminine with weakness, dependency and inferiority. The essential character of gender violence is an attack motivated by or intended to reinforce dichotomized and unequal gender relations, to strike at gender identity as traditionally constructed or to suppress resistance to traditional gender norms.
The Truth and Reconciliation Commission (TRC) has an important historic opportunity to fully examine and record the crimes of sexual violence that were inflicted against Sierra Leonean women during the conflict. Sexual violence has remained Sierra Leone's invisible war crime. Until recently, little attention has been paid either nationally or internationally to this human rights abuse, although sexual violence was committed on a much larger scale than the widely reported amputations for which Sierra Leone became notorious. The underreporting is a reflection of the failure of most observers, documenters, and the media to investigate and report the attacks on women. The lack of publicity is also the result of the subordinated status of women and girls in Sierra Leone that further disadvantages them and downplays their suffering. The stigma and internal shame that makes survivors unwilling to come forward publicly for fear of rejection by their family and communities is also another reason for the silence.
The TRC has an opportunity to rectify that neglect by ensuring an enabling testifying environment that will encourage rape victims to come forward with whatever comfort and privacy they may require. In writing up its findings, the TRC can ensure that the experiences of women during the war are fully reflected. In its consideration of rape and other sexual violence crimes, the TRC should frame its findings fully to take note of the expanding definitions in international law that are set out in this submission in order to avoid arcane formulations that may downplay or trivialize women's experiences during the war. Lastly, we urge the TRC to ensure that their recommendations to the Sierra Leonean government and the international community take into consideration the specific needs of the women survivors.
Isata, a young girl, was abducted and gang raped by rebels:"I was at home when they came and kidnapped me?They demanded money. My family has no money. They demanded Le 200,000.00 ($83.00)?they said to my parents, come and see how we use your children. They undressed five of us, laid us down, used us in front of my family and took us away with them."[3]
This section is entirely based on the findings of Human Rights Watch, except when otherwise specified.
During the decade-long conflict in Sierra Leone from 1991 to 2001, thousands of women and girls were subjected to widespread and sexual violence, including individual and gang rape, and rape with objects such as weapons, firewood, umbrellas, and pestles. According to Human Rights Watch, the victims of rape were of all ages, ethnic groups, and socio-economic classes. The sexual violence was perpetrated by both the rebels and the government, but mostly by rebel forces. The rebels sought to dominate women and their communities by deliberately undermining cultural values and community relationships.
These crimes of sexual violence were generally characterized by extraordinary brutality and frequently preceded or followed by other egregious human rights abuses against the victim, her family, and her community. Child combatants raped women who were old enough to be their grandmothers, rebels raped pregnant and breastfeeding mothers, and fathers were forced to watch their daughters being raped. Women were made forced "wives" of combatants. Young women and girls whom the rebels thought were virgins were particularly targeted for rape and forced "marriage." Many of these younger victims did not survive these crimes of sexual violence. Adult women were also raped so violently that they sometimes bled to death or suffered from tearing in the genital area, causing long-term incontinence and severe infections. Many victims who were pregnant at the time of rape miscarried as a result of the sexual violence they were subjected to, and numerous women had their babies torn out of their uterus as rebels placed bets on the sex of the fetus.
Thousands of women and girls were abducted by rebels and forced into sexual slavery by their combatant "husbands." These abducted women and girls also remained vulnerable to sexual violence by other rebels. Many survivors were held for long periods by rebel forces and some even gave birth to children fathered by rebels. Some abducted women and girls were forcibly conscripted to fight and were given military training, but even within the rebel forces, women still held much lower status and both conscripted and volunteer female combatants were assigned "husbands." For civilian abductees, aside from sexual violence their brutal life with the rebels included being made to perform forced labor, such as cooking, washing, carrying ammunition and looted items, as well as farm work. Combatants within the rebel forces had considerable latitude to do what they wanted to abducted civilians, who were often severely punished for offences as minor as spilling water on a commander's shoes.
Escape for these women and girls was often extremely difficult: Intimidated by their captors and by the circumstances, these women and girls often felt powerless to escape and were advised by other female captives to tolerate the abuses, "as it was war." In some cases, the rebels made escape more difficult by deliberately carving the name of their faction onto the chests of abducted women and girls. If these marked women and girls were caught by pro-government forces, they would be suspected of being rebels, and often killed. Even though many women did manage to escape, some escaped from one rebel faction or unit only to be captured by another. An unknown number of women and girls still remain with their rebel "husbands," although the war was declared over on January 18, 2002.
In addition, women were the indirect targets of violence directed at their loved ones and their children. Women and girls were raped and sexually attached in front of their families, mothers, fathers, husbands, children, as a means of heightening the crime against them, torturing their loved ones and terrorizing the community.
In 2001, Physicians for Human Rights (PHR), conducted a population-based assessment of the prevalence and impact of sexual violence and other human rights abuses among internally displaced persons in Sierra Leone. PHR found that internally displaced women and girls in Sierra Leone have suffered an extraordinary level of rape, sexual violence and other gross human rights violations during their country's civil war, with half of those who said they came into contact with the Revolutionary United Front (RUF) forces reporting sexual violence. Approximately one of every eight household members (13 percent) reported one or more incidents of war-related sexual violence. Nine percent (94/991) of respondents reported war-related sexual violence.
Participants reporting war-related sexual violence related the following types of abuses: rape (89 percent), being forced to undress/stripped of clothing (37 percent), gang rape (33 percent), abduction (33 percent), molestation (14 percent), sexual slavery (15 percent), forced marriage (9 percent), and insertion of foreign objects into the genital opening or anus (4 percent). In addition, 22 (23 percent) of the women who experienced sexual violence reported being pregnant at the time of the attack with an average gestation of three months.
When the total number of war-related sexual violence incidents reported by the survey participants is extrapolated to the total female internally displaced population in Sierra Leone, some 50,000 to 64,000 Sierra Leonean internally displaced women may have suffered sexual violence. If non war-related sexual violence among females who are not internally displaced is added to the totals (assuming a 9 percent prevalence rate) for the internally displaced women, as many as 215,000-257,000 women and girls in Sierra Leone may have been affected by sexual violence.
The main perpetrators of sexual violence, including sexual slavery, were the rebel forces of the RUF, the Armed Forces Revolutionary Council (AFRC) and the West Side Boys, a splinter group of the AFRC. Over three hundred cases of sexual violence by the rebels were documented by Human Rights Watch; countless more have never been documented. From the launch of their rebellion from Liberia in March 1991, which triggered the war, the RUF perpetrated widespread and systematic sexual violence. The AFRC, which consisted of disaffected soldiers from the Sierra Leone Army (SLA) who in May 1997 overthrew the elected government of President Ahmad Tejan Kabbah, were also responsible for subjecting thousands of women and girls to sexual violence, including sexual slavery.
After the signing of the peace agreement in Lomé, Togo, in July 1999, sexual violence, including sexual slavery, continued unabated in RUF-controlled areas and was also perpetrated by the West Side Boys, who operated outside of the capital, Freetown. The human rights situation worsened after the May 2000 crisis when fighting broke out again, until relative peace was re-established, with United Nations and British assistance, by mid-2001. The prevalence of sexual violence peaked during active military operations and when the rebels were on patrol. Even in times of relative peace, however, sexual violence continued to be committed against the thousands of women and girls who were abducted and subjected to sexual slavery by the rebels. No region of Sierra Leone was spared.
A limited number of cases of sexual violence by pro-government forces, the SLA and the militia known as Civil Defense Forces (CDF), the latter consisting of groups of traditional hunters and young men who were called upon by the government to defend their native areas have been documented by Human Rights Watch (HRW). Further, HRW has not documented any cases of sexual violence by the SLA occurring prior to 1997. This may in part be due to the fact that survivors would have often found it difficult to distinguish between rebel and government soldiers, as the latter frequently colluded with and disguised themselves as RUF forces. Sexual violence was committed relatively infrequently by the CDF, whose internal rules forbid them from having sexual intercourse before going to battle and who believe their power and potency as warriors depends upon sexual abstinence. Some of this internal discipline, however, was lost as CDF moved away from their native areas and traditional chiefs and were given more responsibility in national security. HRW has documented several cases of rape by the largest and most powerful CDF group, the Kamajors, who operate predominantly in the south and east.
There have been reports of several cases of sexual violence by peacekeepers with the United Nations Mission in Sierra Leone (UNAMSIL), including the rape of a twelve-year-old girl in Bo by a soldier of the Guinean contingent and the gang rape of a woman by two Ukrainian soldiers near Kenema. There appears to be reluctance on the part of UNAMSIL to investigate and take disciplinary measures against the perpetrators. Reports of rape by peacekeepers with the Economic Community of West African States Monitoring Group (ECOMOG), the majority of whom were Nigerian, deployed at an earlier stage in the war, were rare. Both ECOMOG and UNAMSIL peacekeepers have sexually exploited women, including the solicitation of child prostitutes, whilst deployed in Sierra Leone.
Women and girls in Sierra Leone are subjected to structural discrimination by practice, custom and law. They face discrimination in terms of education and employment, in the political arena, and in other walks of life. Both customary law, which governs the majority of the population, and general law, which was inherited from British colonial law and is primarily applied in Freetown, discriminate against women and girls in terms of family law, as well as property and inheritance rights. In addition, the provisions pertaining to rape under general and customary law offer inadequate protection. The misinterpretation of the complicated provisions of general law by the police and courts means, for example, that those who are alleged to have sexually assaulted a minor are generally charged with "unlawful carnal knowledge of a child," for which the sentence is lighter, rather than rape. Under customary law, the perpetrator is generally required to pay a substantial fine to the victim's family as well as to the chiefs. The victim may also be forced to marry the perpetrator.
The concept of sexual violence as a crime in itself is a very recent one in Sierra Leone's patriarchal society. Only rape of a virgin is seen as a serious crime. Rape of a married woman or a non-virgin is often not considered a crime at all: as in many countries, there is often a belief that the woman must have consented to the act, or she is seen as a seductress. The virtual destruction of Sierra Leone's already corrupt and inefficient court system and police force during the war, moreover, created a climate of impunity that persists, allowing perpetrators of sexual violence (as well as other crimes) to escape justice.
The lack of attention to conflict-related sexual violence means that few assistance programs have been established for women and girls who were subjected to sexual violence, including sexual slavery. Survivors not only live with the severe physical and mental health consequences of the abuses suffered, but also fear ongoing non-conflict-related sexual violence, largely perpetrated with impunity. Women have a crucial role to play at this critical phase in Sierra Leone's history, but they will only be able to contribute fully in a civic culture in which women and girls are respected as equal partners and gender-based abuses are not tolerated.
Bola N. said: "My first captivity was when the nine men raped me . . . I was not assigned to just to one man, as long as you are good looking, you have intercourse with all of them."[5]
Sexual and gender violence against women and girls in situations of armed conflict has long constituted, in theory, a clear violation of international law. Nonetheless, rape until recently has been mischaracterized and dismissed by military and political leaders as a private crime or simply the unfortunate or inevitable behaviour of a renegade soldier. It has been trivialized and accepted precisely because it is so commonplace. Under a scheme of victors' justice, when all the belligerents do it, no one can be held responsible. Even when, for political reasons, the issue of rape has surfaced as an atrocity in the midst of conflict, it has most often been forgotten or hidden in its aftermath. Thus, until recently, impunity has been the order of the day. As the U.N. Special Rapporteur on Violence Against Women, Its Causes and Consequences emphasized: "[Rape] remains the least condemned war crime; throughout history, the rape of hundreds of thousands of women and children in all regions of the world has been a bitter reality."[6]
Reversing this legacy remains the obligation of every transitional justice institution charged with examining or prosecuting crimes committed during conflict. It is critical to ensuring inclusive and non-discriminatory justice as well as to combating the stigma and blame that are at the core of the shame, isolation and abandonment suffered by women in post-conflict situations.
While rape has long been prohibited by international humanitarian law, it was written into the original international humanitarian convention, the 1907 Hague Convention, not as part of the violence of war, but as an offence against honour and dignity.[7] This characterization is based, however, on the notion of women as property and sexual violence as a moral affront described in largely moralistic terms. The word honour thus alludes to chastity, sexual virtue and good name and refers equally to the honour of the male-husband or father-with whom the woman is related. Thus, the traditional view of rape as an offence against honour failed to recognize women with rights to autonomy and protection, and thus failed to treat rape and sexual violence as a crime of violence-an attack on women's physical and mental integrity. The notion of honour also obscured the atrocious nature of the crime and further contributed to the widespread misperception of rape as an "incidental" or "lesser" crime by comparison to killing, torture or enslavement.
The London Charter did not include rape explicitly[8] and the International Military Tribunal at Nuremberg, though hearing some evidence of rape, did not mention it in the Judgement.[9] The Allied Powers in Germany had the authority to prosecute rape in the continuing war crimes trials of the Nazis, by virtue of Control Council Law No. 10, which named rape as a crime against humanity and thus illustrates that the severity of rape was fully recognized. But rape was never prosecuted.[10] By contrast, even without explicit naming of rape in its Charter, the International Military Tribunal for the Far East did document and convict certain defendants for the blatant and widely publicized examples of mass rape, such as attended the Japanese conquest of Nanking and other cities. This reflected the understanding that rape was implicit in the named crimes of violence. But that Tribunal also completely ignored the extensive system of military sexual slavery known as the «comfort women» system whereby over 200,000 women from Taiwan, Korea and the conquered countries of the Far East were forced to sexually serve the Japanese Army.[11] Thus, the failure to prosecute in the post-war Tribunals and War Trials lies not in the absence of adequate legal prohibitions, but in the international community's willingness to tolerate sexual abuse against women.
The post-war codifications of the laws of war in the Geneva Conventions did not build on even the limited steps taken by these war crimes trials. In the Fourth Geneva Convention, rape continued to be characterized as an attack on women's honour and the list of grave breaches or Common Article 3 do not refer explicitly to rape.[12] When, in 1977 in Protocol II, offences of sexual violence were explicitly included, they were again categorized as offences against dignity and honour or humiliating and degrading treatment and listed as rape, forced prostitution and any other form of indecent assault,» (emphasis supplied),[13] terms which in both context and language emphasized the moralistic nature of the offence carry stigma for the victim. As a consequence, women, whether combatants or civilians, have been consistently targeted for sexual violence such as rape, sexual mutilation and sexual slavery, while for the most part their attackers go unpunished. In addition, women shoulder in painful silence the blame or dishonour that is the result.
Thus, although rape and sexual violence are, in fact, comparable in gravity to, and often constitute, torture, mutilation and enslavement, they have, with rare exception until recently, not been exposed or condemned or otherwise treated as equivalent to these other non-sex-specific violations. Recent developments in international law, including the adoption of the Rome Statute founding the permanent International Criminal Court and the jurisprudence of the ad hoc International Tribunals make clear that this is no longer acceptable. Care must be taken to fully include and emphasize the seriousness of sexual violence as well as to avoid arcane formulations in order to reverse the ingrained and discriminatory attitudes which are the product of historically discriminatory law.
Over the last decade,[14] women's human rights activists and the survivors of this violence have brought about a change in the treatment of rape and other forms of sexual violence. The 1993 World Conference on Human Rights in Vienna was a watershed. In the documents that resulted, the world community recognized violence against women as a priority concern and noted particularly the need to end impunity for sexual violence in war and conflict. Subsequently, the charging practices and jurisprudence of the ad hoc Tribunals and the codification of sexual and gender violence crimes in the Rome Statute of the International Criminal Court provide the basis for examining and prosecuting these crimes as international crimes today.
The Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) explicitly listed rape as a crime against humanity under their jurisdictions and have convicted defendants of these crimes.[15] Both Tribunals have also prosecuted rape and sexual violence as war crimes and treated rape as torture and sexual violence, such as forced nakedness, as inhumane treatment.[16] The ICTR, after initial resistance to investigating and charging rape, prosecuted and adjudged rape as a crime of genocide in the case against Jean-Paul Akayesu, the former mayor of Taba commune in Rwanda. This verdict marked the first time an international court found rape to be an act of genocide. In 2001 in the Kunarac case involving the Foca prison, the ICTY convicted the Bosnian-Serb defendants of rape as a crime against humanity and treated rape as also torture, and enslavement committed in Foca. The severity of rape and other forms of sexual violence has been emphasized by the fact that in several instances, the ICTY has devoted entire cases exclusively to sexual violence.[17]
The gravity of rape and other forms sexual and gender violence and persecution and their rightful place among the gravest crimes of international dimension was settled in the negotiations for the permanent International Criminal Court (ICC). Largely as a result of the efforts of the Women's Caucus for Gender Justice, other committed nongovernmental organizations and delegates, the Rome Statute of the International Criminal Court[18] (Rome Statute) lists a significant range of sexual crimes as both war crimes and acts constituting crimes against humanity. These include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of [serious or comparable] sexual violence.[19] In addition, the Rome Statute recognized persecution based on gender as a crime against humanity. Persecution consists of an «intentional and severe deprivation of fundamental rights» by reason of one's group identity and thus embraces more than gender-based violence.[20]
In addition to the explicit naming of these crimes of sexual and gender violence, the ICC encompasses the principle of «gender integration» implemented by the ad hoc Tribunals, meaning that to avoid discrimination, these crimes may also be prosecuted as other non-sex-specific crimes of violence. The subsequently negotiated annex to the Rome Statute entitled «Elements of Crimes» (hereinafter ICC Elements) designed as a non-binding guide to the Court,[21] which details the suggested elements for each crime, makes clear that crimes of sexual violence can also be prosecuted as other crimes of violence, such as torture or mutilation, thus adopting the approach of the ad hoc Tribunals as well as further confirming the Akayesu determination that sexual violence can constitute acts of genocide.[22] This process of treating sexual and gender violence as also constituting the non-sex specific crimes is crucial to avoiding the remarginalization of sexual violence and the discrimination against women that creates the persistent and recurring efforts to minimize or ignore this violence. When, as is now the case, rape is clearly recognized and prosecuted as the crime of torture,[23] it is exceedingly difficult to pretend to justify a failure to vigorously investigate and prosecute it.
While the Rome Statute does not apply to the events occurring in Sierra Leone as the treaty is not retroactive, the Rome Statute represents a codification of the minimal international consensus as to the international customary norms and the core, or gravest, international crimes. These norms are, therefore, properly applicable by the TRC.
The Rome Statute also codifies as among the «general principles» applicable to the Court, the principle that the interpretation and application of the statute shall be consistent with human rights and non-discrimination based, among others, on grounds of gender. The principle against discrimination is a customary norm applicable to all proceedings and institutions, including this Truth and Reconciliation Commission.
It is worth noting here that, unfortunately, the Statute of the Sierra Leone Special Court (Special Court) ignores the more forward-looking position of the Rome Statute, and utilizes the wording of Article 4(2)(e) of the Additional Protocol II (referring to rape, forced prostitution, and any other form of indecent assault). This does not reflect the recent evolution of the international law. Even before the Rome Statute was concluded, the ICTY Prosecutor began charging rape as torture, a characterization based on the violation and assault of a woman's physical integrity rather than on moralistic nature (a violation of honour).[24] The Coalition for Women's Human Rights in Conflict Situations (Coalition) urges that the TRC, in its consideration of rape and other sexual violence, avoid the arcane formulations of the past and acknowledge the expanding definitions of sexual violence under international law.
As a result of these developments, perpetrators of rape and other forms of sexual violence must now be held accountable for rape and other sexual violence as a war crime, as crimes against humanity, or as acts of genocide, if this conduct meets the respective threshold elements of those crimes, as follows:
To constitute a war crime, an act of sexual violence against a civilian must take place in the context of and be associated with an armed conflict.[25] It is important to note that one act of rape or sexual violence can constitute a war crime and that rape need not be committed during war or as a weapon of war to qualify as a war crime. It is sufficient if war provided the opportunity for the illegal conduct.[26] The perpetrator need only be aware of the context of war.
To constitute or be a part of crimes against humanity, there must be widespread or systematic attack on any civilian population. "The concept of 'widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims."[27] But massive or large numbers are not required; rather the attack may be widespread based on the proportion of the targeted population affected or the patterns repeated in different places. "The adjective 'systematic' signifies the organized nature of the acts of violence and the improbability of their random occurrence, although systematic does not preclude that crimes against humanity can emerge spontaneously and proceed in an organized or patterned way. The patterns of crimes-that is the non-accidental repetition of similar criminal conduct on a regular basis-are a common expression of such systematic occurrence."[28] The attack constituting crimes against humanity need not be a military attack; nor need crimes against humanity be linked to war.[29] The Rome Statute includes the requirement that the attack be pursuant to or in furtherance of a state or organizational policy to commit the attack.[30] However, this requirement is not accepted in the jurisprudence of the ad hoc Tribunals.
In addition, the ICC requires that the perpetrator must be aware of the attack but need not know the details.[31] The perpetrator "must have known or considered the possibility that the victim of his crime was a civilian"[32]. However, the mens rea element does not refer to the personal motives of the perpetrator and, except for the animus required by the crime of persecution, no specific intent or animus is required. [33]
Sexual violence or gender-based persecution, if itself widespread or systematic, can constitute crimes against humanity. In addition, if it is a part of a broader range of crimes such as murder, torture and inhumane treatment, this violence will also constitute crimes against humanity. Thus it is not necessary that rape or sexual violence itself be widespread or systematic to constitute crimes against humanity. An individual can be responsible for a crime against humanity even if he or she commits one prohibited act with the required awareness of the larger attack. "As long as there is a link with the widespread or systematic attack against civilian population, a single act could qualify as a crime against humanity?.an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of crime against humanity if his act were part of the specific context [of an attack of the civilian]."[34]
With respect to the thresholds for war crimes and crimes against humanity, the interviews conducted with victims by Human Rights Watch and Physicians for Human Rights indicate that the sexual violence committed in Sierra Leone meets the elements of war crimes and crimes against humanity and, therefore, constitutes these international crimes.
As to war crimes, for example, there is no question that sexual violence against women was closely associated with war in that it occurred as part of the rewards of war, and as a weapon of war-that is, of humiliation and degradation of women, and of the enemy men, and of the community. Further, the infliction of sexual violence was temporally related to the war and war provided the opportunity and sense of entitlement for the most grotesque and brutal forms of violence against women. Thus every act of sexual violence, having this association to war, constitutes a war crime.
The threshold for crimes against humanity appears also to be clearly met whether one examines the sexual violence in isolation from other aspects of the attack or as part of a larger attack. The Statute of the Special Court adopts the broad formulation of the jurisprudence and includes crimes committed "as part of a widespread or systematic attack against any civilian population."[35] As reported by the PHR Survey discussed in Part I of this statement, it is estimated that 9% of respondents suffered some form of sexual violence and that the individual crimes of sexual violence may have affected over 200,000 women and girls. Such numbers are not required to demonstrate crimes against humanity; but here they attest to the enormity of suffering. The prevalence and patterns of sexual violence; the testimonies indicating approval by those in the hierarchy, among other characteristics, also indicate that the sexual violence was not simply coincidental but rather systematically employed.
Thus it appears that sexual violence crimes alone constitute crimes against humanity. Alternatively, there is no doubt that the sexual violence crimes also constituted part of the larger attack on civilian populations in Sierra Leone.
The Rome Statute and the Statute of the Special Court of Sierra Leone list the sexual crimes of rape, sexual slavery, forced pregnancy, enforced prostitution, enforced sterilization, and other sexual violence. While the Rome Statute includes these crimes as both crimes against humanity and war crimes, the Statute of the Special Court does not explicitly include enforced sterilization and Section 3 does not explicitly recognize any of these sexual violence crimes, except for the crimes of rape and enforced prostitution, as war crimes. Nonetheless, it is incumbent upon the TRC to consider all internationally cognizable crimes.
Based on the jurisprudence developed by the ICTR and the ICTY, and the Rome Statute and annexed Elements of Crimes, the following is a brief summary of the crimes applicable here. The examples documented by human rights groups are relentless. Below are a very limited number of examples that we anticipate will be reflected in various ways in the report of the TRC.
The ICTR and the Celibici Trial Chamber of the ICTY have defined rape as a physical invasion of a sexual nature.[37] The ICC Elements and other ICTY jurisprudence have added more detailed descriptions of the invasion.[38] Under the more detailed definition, rape involves penetration however slight of the vagina or anus by a penis, object or other body part or of any other body part by a penis. The definition of rape (as well as of forced prostitution and other sexual violence) includes a broad concept of force including threat thereof and coercion, "such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent." [39] Coercion can result from threats to harm the victim or to harm a third party, including but not limited to a family member, with the knowledge that it will operate as coercion for the victim. The force/coercion element is intended to be broad and the jurisprudence indicates that in certain circumstances, like for example, armed conflict, or the military presence of militiamen or combatants exercising, coercion may be inherent.[40] Thus, the presence of armed combatants in a village exerting temporary power and control would be sufficient to meet the coercive element. The Kunarac Trial and Appeal Judgments added that it is sufficient if shown that the invasion was against the woman's will.[41]
Examples of rape from Sierra Leone include:
- Vaginal, anal invasion and gang rape:
R.T. was about sixteen when she was brutally raped vaginally and anally by ten RUF rebels in the forest near Koidu in Kono district in January 1997.
"I was raped by the ten rebels, one after the other. They lined up, waiting for their turn and watched while I was being raped vaginally and in my anus. One of the child combatants was about twelve years. The three other child soldiers were about fifteen. The rebels threatened to kill me if I cried."[42]
In terms of the element of force or coercion, the examples in Sierra Leone reflect both situations of both force and coercion. The Rome Statute, echoing the jurisprudence of the ad hoc Tribunals, provides in its Rules relating to evidence of sexual violence and applicable to rape and to other crimes of sexual violence, that even if the victim agrees or fails to object, rape is committed so long as the coercion undermines the victim's capacity to given genuine consent.[43] Sexual invasion of minors, so prevalent in Sierra Leone, is per se rape.[44]
- Invasion by objects or body parts:
H.K., the sixteen-year-old Freetown student forced to be the wife of Colonel "Jaja," had an umbrella shoved up her vagina as part of the torture that followed her being accused by "Jaja" of stealing his money: "Once a boy named Junior came by and put his hand inside my vagina. He brought out his hand, which was all bloody and said, "Look at your blood, you're sick." All the civilians seeing this felt sorry for me, but of course they couldn't say anything."[45]
J.M. described how rebels brought her into the village square, forced her to lie down and then poured boiling palm oil into her vagina and ears:
'Several of them pulled her legs apart and held her tightly. They poured a pan of boiling palm oil into her vagina and then into her ears. This terrified us. She started shaking all over and was bleeding from the nostrils and mouth. While on the ground they struck her with a gun and danced around her saying, "When you were loving with the old man [Sankoh], you didn't show us any respect, but now your time for punishment has come." She died about an hour later. The rebels said they were sent by Sankoh who was living in Kailahun about seven miles."[46]
- Checking virginity:
Fatmata, 38 years old, witnessed young girls being given an examination to determine if they were virgins or not: "Inside the compound of the house next to where we were being searched, I saw five young girls between thirteen and sixteen, lying completely naked on the ground with one or two rebels holding each one by the arms, another two holding the legs apart and a female commander named Rose putting her fingers inside the vagina of each one to determine if she was a virgin or not."[47]
The two essential elements unique to the crime of sexual slavery are the "exercise of any or all of the powers attaching to the right of ownership over one or more persons?" and the forced participation in one or more acts of sexual violence.[49] The ICC adds the requirement that this be accomplished by such acts as "purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty" which can include reducing a person to a servile status under international law or forced labor.[50] However, the requirement of a commercial element or the limiting definition of liberty in the ICC Elements have been decisively rejected by the Kunarac Appeal Chamber. The Coalition urges that the Appeal Chamber's approach, which identifies various indicia of slavery, none of which are mandatory, be utilized. For example, while confinement is an indicia of slavery, it is not required and the possibility of some free movement or escape does not obviate the enslavement condition. Sexual slavery is a form of enslavement identified by the fact that the perpetrator must cause the victim[s] to engage in one or more acts of a sexual nature.
Forced "marriage" is a form of sexual slavery as is the detention of women in "rape camps" or any circumstances under which women are subjected repeatedly to rape or the threat of rape or any other sexual violence. In Sierra Leone, as well as many other conflicts, women and girls were given as "wives" to commanders and combatants. These sexual slaves are widely referred to in Sierra Leoneas "bush wives." When forced "marriage" involves forced sex or the inability to control sexual access or exercise sexual autonomy, which, by definition, forced marriage almost always does, it constitutes sexual slavery, as recognized by the Special Rapporteur for Systematic Rape, Sexual Slavery, and Slavery-Like Practices during Armed Conflict.[51]
Examples of sexual slavery from Sierra Leone include:
- Detention: A.J., a fourteen-year-old student was abducted in Pujehun and tortured by the RUF from February to May 1994:
"I was put under the control of Commander Patrick, a Liberian. (?) Once, after the commanders had gone to the war front, Neneh told one of our guards to open up the cage where I was being held and take me out. She said, "My husband is interested in you. If you accept him to have sex with you, I'll kill you, so be forewarned." " [52]
- Abduction and forced "marriage":
H.K. testimony: She was assigned as the wife of "Jaja" and was so badly treated by him that even the other rebels sometimes tried to prevail on him to be less violent: "Jaja was already "married" to another abductee, and when she saw what he had done to me, she escaped. He always beat both of us. 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. He was actually an SLAsoldier but had joined the RUF. His C.O. was Colonel Stagger, who used to criticize him for how he treated us. Colonel Stagger used to say, 'Look, when we take these kids, we should take care of them and now you beat her for nothing.' Jaja used to say it was not Stagger's business. Stagger's own abductees were treated pretty well. He never beat them."[53]
As a result of highly contentious negotiations, both the Rome Statute and the ICC Elements provide an excessively narrow definition of forced pregnancy: "The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law."[55] In the case of Sierra Leone, there are reported examples of women raped who become pregnant and were not permitted by their rapist or another to obtain abortion. In the view of the Coalition, the torture imposed upon a woman forced to bear a child of rape and/or under circumstances of enslavement and/or for the purposes of increasing the population available to the captor or for marking the identity of the ultimate child constitute violations of international law. The concept of "forced pregnancy," first articulated officially in the Vienna Declaration and Programme of Action[56] referred however to the confinement or other means of preventing pregnant women from obtaining abortion. The Coalition urges that the broader understanding of forced pregnancy be utilized by this Commission.
Examples of forced pregnancy from Sierra Leone:
I.S., a 27 years old student who was abducted by the AFRC during the January 1999 invasion, tried to abort, but was unsuccessful:
"When I got pregnant I didn't tell my rebel husband for months. I asked a woman who knows about medicine to give me herbs to abort the baby, but it never worked and after my belly started to swell, he found out. He warned me that if I tried to flush the baby out, he'd kill me. He said he wanted the baby and that he hoped it would be a boy."[57]
"M.W., the abducted nurse, also mentioned that medical personnel were instructed by a rebel doctor, Dr. Lahai, not to perform abortions, give birth control, or advise that traditional herbal treatments be taken, as the rebels felt that too many people had died and they needed to increase the population."[58]
The ICC Elements define enforced sterilization as follows: "The perpetrator deprived one or more persons of biological reproductive capacity" and "the conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent."[60] It includes acts committed upon women, including during the war in Sierra Leone, such as the removal of fetus, uterus, castration, destruction of reproductive organs, as well as medical sterilization without consent. Although this crime is not listed in the Sierra Leone Special Court Statute, mutilation of Sierra Leonean women that results in sterilization should be recognized as enforced sterilization at the same time as these acts also qualify as "other sexual violence." The numerous attacks reported against pregnant women, including the cutting the fetus out of a pregnant woman's uterus and the mutilation of her organs thus constitute enforced sterilization as well as mutilation and inhumane treatment.
Examples of enforced sterilization from Sierra Leone:
K.M. who was abducted during the 1997 attack on Kabala, witnessed the killing and sexual mutilation of a pregnant woman near Kono in Kono district:
"They captured a Koranko woman who was pregnant. Two RUF, Captain "Danger" and C.O. "Cut Hand" argued about the sex of the child. They bet 100,000 leones [approximately U.S. $50] on the sex of the child. Then they shot the woman dead and opened her belly. The RUF held up the baby with the placenta, which they shook in the air. The baby cried and then died. I wanted to run away but my husband said that the civilians would think that I was a rebel and that they would kill me." [61]
Sexual violence as a war crime must be "serious" in dimension or, as a crime against humanity, of "comparable gravity" to the other crimes against humanity.[63] The ICC Elements define sexual violence to encompass both involuntary sexual assaults and sexual performance, and thus applies to coercion resulting in sexual entertainment or nakedness.
The scope of sexual violence is broad. As the Akayesu Trial Chamber opined, "[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact."[64] It relates to the lack of sexual autonomy, which is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant." [65] It could include biological and medical experimentation of sexual nature or experimentation on reproductive capacities, sexual mutilations, harassment and threats of rape or other sexual violence. Forcing a woman to lick a penis (which might also constitute rape) or to perform sexual acts that are not rape, such cutting or sexual touching of the body or breasts are forms of sexual violence.
It should also be noted that most of what is sexual violence today was incorporated historically in the concept of offense against honour and humiliating and degrading treatment, now independently codified as a war crime in the Rome Statute, Article 8(2)(c)(ii). [66] The adoption of the clause describing the sexual violence crimes in the war crimes articles-"also constituting a grave breach of [or for non-international armed conflict, a "serious violation of article 3 common to the four"] Geneva Conventions"[67]-was specifically intended to declare the status of the sexual violence crimes as comparable to the grave breaches, which are the most serious violations recognized under humanitarian law.[68] While sexual violence can be charged under both rubrics, it is important not to utilize the rubric of humiliating and degrading treatment to diminish the understanding that all forms of sexual violence, whether or not they involve touching, constitute physical and/or mental violence against the person. In sum, the Rome Statute rightly recognized the historic failure to treat sexual offenses as among the most severe violence and it named them explicitly as crimes of violence. As discussed below, the ad hoc Tribunals' jurisprudence has largely adopted this approach as well. For that reason, we do not separately consider humiliating and degrading treatment here. [69]
Examples of Sexual Violence from Sierra Leone:
- Sexual cutting and mutilation:
A.J., a 14 years old girl:
"Two weeks later, the four young men managed to escape. When the rebels found out, they blamed us for what happened. They said the boys were really SLA solders that were there to get information on the RUF. I was then tortured by a Liberian RUF commander named C.O. Rackin. He said I was "bright and bold" and must have known how they escaped. He interrogated me, asking me if the boys were SLA's. During the interrogation he cut me in twenty-one places with a knife including a deep cut on my left breast. He drew a small, small circle in the dirt and told me to step inside and walk around in it. Any part of my body left outside he stabbed with a knife".[70]
- Forced Nakedness:
J.M.'s testimony: "The RUF rounded up about seventy of us civilians, including Abi and Janneh, and accused us of making a plot to arrest Sankoh . . . . So Janneh was the first to be killed. The rebels grabbed her, stripped her and threw her down in front of the whole village" [71]
Fabian, twenty-one, and eight other women were brought into a room on January 21 and forced to strip naked in front of eleven rebels after a picture of President Tejan Kabbah was found in the parlor. She described how they were terrorized and humiliated for over two hours:
"As soon as the commander summoned us to the room the said, also you are Kabbah's children; the ones calling in the jets to bomb us. He then ordered us to strip naked and stand in a line in front of him with our legs spread two feet apart. I begged him to leave me as I had my three-month-old infant in my arms but he tore the baby from my arms and threw him against a wall."[72]
Sexual and gender based crimes constitute crimes against humanity through gender-neutral qualifications when they meet all the elements of crimes of torture, enslavement, persecution, other inhumane act in crime against humanity (widespread or systematic attack, against civilians with the knowledge that the crimes constitute a part of the attack). This "gender-integrated" understanding of gender-based violence has been accepted by the ICTR and ICTY and is a critical protection against gender-based discrimination.
The Rome Statute includes gender as a ground of persecution in recognition of the significance of attacks targeted on the basis of gender at both women and men. Article 7(1)(h) identifies as a crime against humanity "[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court".[73] Article 7(2)(g) then defines persecution as the "intentional and severe deprivation o f fundamental rights contrary to international law by reason of the identify of the group or collectivity." Article 7(3) then defines gender as "refer[ing] to the two sexes, male and female within the context of society." The second clause in this definition encompasses attacks directed against women because of their status or gender-dictated roles as well as because of any perceived resistance to that dictated role.[74]
Article 2 (h) of the Special Court Statute does not, however, take into account the aforementioned provision of the ICC Statute, but rather adopts the wording of ICTR and ICTY Statutes. This is unfortunate, but again, it need not limit the scope of this Commission's consideration of the crime of persecution. We note as well that the ICTY jurisprudence clarifies the scope of the actus reus of persecution in recognizing rape as well as others physical assaults as a part of the crime.[75] Indeed, the bases of persecution are not fixed but must be considered in each context where an identifiable group or collectivity is targeted. To ignore gender-based persecution would be inconsistent with the general principle against gender-based discrimination.
The definition makes clear that the international crime of persecution includes but is broader than the infliction of violence upon a person.[76] It includes as well restrictions on rights such as freedom from detention or custody, of movement, of the rights associated with security of person and family life, control of access to one's body or autonomy of the body as well as restrictions of rights of access to justice, health, education, and work, and freedom of political opinion and religion. "It is not an individual act, but rather their cumulative effect that matters."[77] There is no question that the combination of sexual and gender violence and the ongoing threat of forced marriage, rape and other sexual violence alone resulted in the intentional and severe deprivation of fundamental rights constituting gender-based persecution in addition to other grounds of persecution.
It is worth noting that in the Sierra Leone conflict, in addition to rape and sexual violence directed at women, the brutal attacks on children, pulled from women's protection, was a form of gender violence. Violence designed to feminize and thus humiliate men, such as raping women or daughters in front of them is a form of gender violence directed at both the men and the women or girls. The abduction and conscription of young boys designed to prevent them from growing up into enemy soldiers was a form of gender violence. While this testimony focuses on the gender violence directed at women, it is important that the TRC also give attention to the manifold aspects of gender violence perpetrated in this conflict.[78]
It should already be clear that rape and other forms of sexual and gender violence also constitute acts which meet the criteria of other non-sex-specific crimes such as torture, mutilation, enslavement, and inhumane or cruel treatment. As discussed above, it is important for the TRC to emphasize the applicability of these crimes as it assists in countering deeply engrained cultural and legal attitudes that tend to minimize rape and sexual violence. In addition, the recognition of the crimes against women in Sierra Leone as among those long universally accepted as the most grave also tends to assure to the survivors the full measure of both dignity and equality to which they are entitled. Accordingly, in this part, the Coalition provides brief discussion of their applicability.
In the international criminal instruments, the crime of torture is codified as both crimes against humanity (Art. 7 (1) (f) of the Rome Statute and Art. 2(f) Special Court Statute) and war crimes (Art 8 Rome Statute and Art. 3(a) Special Court Statute). In the Rome Statute, the actus reus of torture as a crime against humanity requires only the "infliction of severe physical or mental pain or suffering on one or more persons? [who] were in the custody or under the control of the perpetrator." Torture as a war crime requires in addition that the severe pain or suffering be "for such purposes as: obtaining information or a confession, punishment, intimidation or coercion for any reason based on discrimination of any kind." In this sense the latter definition is more similar to the purpose requirement contained in the UN Convention Against Torture and Other Cruel Treatment or Punishment [79] It should be noted that the purpose requirement is not a specific intent requirement, but is to be objectively determined as was originally intended to broaden beyond interrogation the recognized goals of torture. It should be noted as well that the right of not to be tortured is one of the fundamental rights of a non-derogable nature, i.e. it is a jus cogens norm.[80]
Rape and other forms of sexual violence also constitute torture under human rights and humanitarian law. This is not only clear from the horrific examples provided heretofore, but it has been recognized explicitly in the ICTY and ICTR decisions as well as in the Rome Statute, as discussed above. Most recently the Kunarac Appeal Chamber made clear that the severity of pain and suffering inflicted by rape constitutes torture. It should be noted that, despite error in an early ICTY opinion, there is no longer any requirement [as is required by human rights law] that the person committing the torture have official status when the torture is committed in the frame of war or crimes against humanity.
It must also be underscored that torture may be inflicted against a person through the infliction or threat of infliction of sexual or other violence on a third person. When children or spouses or parents are sexually threatened or assaulted in front of another family member, that is recognized as a form of torture. Thus in Sierra Leone, it is torture when daughters, including virgin daughters, are raped in front their fathers or mothers, when a breastfeeding woman is raped in front of her husband and children, when a post-menopausal woman is raped in front of her son. It has also been judged that forced observance of sexual violence inflicted on a woman engaged with a man caused him severe physical and mental suffering.[81] Torture is also committed when family members are killed while others are forced to observe. The seizing of a child from its mother and killing it in front of her is also a particularly gendered form of torture, targeted as it is at her role as mother.
Examples of sexual and gender violence as torture from Sierra Leone:
One woman also reportedly had pepper put in her vagina as the RUF suspected her of being the wife of a SLAsoldier. Rebels inserted burning firewood into the vagina of twenty-five-year-old F.T. and another woman during the January 1999 invasion of Freetown:
"Once we were on the ground all the rebels surrounded us, and a tall rebel well over six feet went to the kitchen of Parliament House and took a piece of burning firewood from the fire. He then squatted down and with his two hands inserted it into my vagina. Then he returned to the fire and got another piece and then a third. I felt like I was being stabbed inside. (?) He did the same to the other woman. While they did this to us, I heard them say "This is the way we are going to fuck you. We are not able to do to you half of the things we do to people in the provinces. You bastard civilians, you hypocrites; as soon as you see ECOMOG, you start to point fingers at us."[82]
Later in the same year, K.M.'s baby was killed in front of her in Kambia district by a rebel captain who wanted to rape her: "Captain "Danger" pulled my baby from my back and before I could do anything, he sliced my child in two. I was told not to cry as otherwise I would be killed as well."[83]
S.G., a fifty-year-old widow, was raped by a teenage rebel called Commander "Don't Blame God" and subsequently had both arms amputated in Mattru village in Bo district prior to the 1996 elections:
"Commander Don't Blame God said: "I have a letter for you but wait for the cutlass man to come." Then the one with the machete came and told me to put out my left arm. It took them three chops with the cutlass to cut off my arm. After this I begged them not to cut my other arm but they struggled with me and a rebel held it down and cut it off. The cutlass man said, "We belong to Foday Sankoh's group." Then one of them took my left arm and put it under my vagina and kicked me twice in the vagina ? very, very hard." [84]
Enslavement is named as crimes against humanity (Art. 7 (1) (c) Rome Statute and Art. 2(c) Special Court Statute). It is also prohibited by numerous international human rights and humanitarian law instruments and is one of the original universally condemned crimes under customary international law. Likewise enslavement is a jus cogens violation.[85]
The sexual form of enslavement is now codified as "sexual slavery." Beyond that enslavement takes many forms, some of them gendered. Young girls and boys, men and women can be enslaved in one of many ways: in domestic labour, mining, arms factory, de-mining and medical experiments. It becomes a gender crime when an individual is enslaved because of his/her particular function in the society: women used for domestic labor (cooking, washing, cleaning, serving, educating children), men for transport or fighting, young girls for spying, girls and women for sex and reproduction.
In the Kunarac Judgement, the ICTY recognized that both forced domestic labour and sexual services of women and girls constituted enslavement[86] The essential element of enslavement is, as discussed above the exercise of any or all of the powers attaching to the right of ownership. The indicia have been elaborated by the Kunarac Appeals Chamber and include restriction or control of an individual's autonomy, restriction of freedom of choice or freedom of movement, extraction of forced or compulsory labor or service, often without remuneration though not necessarily, involving physical hardship; sex; and human trafficking. Enslavement may be accompanied by a claim of exclusivity; torture, cruel treatment and abuse, including sexual; and other means of psychological as well as physical control. Enslavement does not require a showing of non-consent since the exercise of free will by the victim may be irrelevant or impossible because of the coercive environment. It also does not require detention or the absence of any avenues of escape. It may also be the product of a commercial exchange but this is clearly not required.[87]
Examples of enslavement from Sierra Leone:
See M.P. testimony telling that she was abducted and confined in a RUF camp from until February until May 1994: "Two weeks later, the four young men managed to escape. When the rebels found out, they blamed us for what happened.(?) Then a commander called Momoh Rogers, who was the battalion commander, ordered that my cousin and I be put in a wooden cage smaller than one square meter. He said that if our brothers who had gone to tell the SLAcame to attack, it would be very easy for them to kill us. The cage was what the village people used to store their husk rice in and it had almost no ventilation. We were only let out to defecate. They told me I had to pee on myself in the box. They poured water into the cracks but it was never enough and was dirty. Sometimes they dropped cassava and boiled bananas into the cage, feeding us like we were animals. The stab wounds I had got infected and I got sores all over my body. They were painful and smelled very badly."[88]
The crimes committed during the detention of this girl could also be qualified as torture and eventually as other inhumane acts.
See also examples and testimonies above in the sexual slavery section of this submission.
Other inhumane acts are also categorized as crimes against humanity (Art. 7(1)(k) Rome Statute and Art. 2(i) Special Court Statute) and encompass acts that are of similar gravity and seriousness by comparison to the enumerated crimes. These will be acts or omissions deliberately cause serious mental and physical suffering or injury or constitute a serious attack on human dignity."[89] Such acts need not amount to the severity of torture although the distinction is not a clear one and needs to be examined in context. To the extent there are serious sexual and gender crimes that are not mentioned in the Special Court Statute (e.g. enforced sterilization and gender-based persecution), they would clearly qualify as other inhumane acts. The perpetrator need not intend the suffering but only know that the acts will cause such suffering.
Examples of other inhumane acts:
See A.J. testimony as cited above: "He interrogated me, asking me if the boys were SLA's. During the interrogation he cut me in twenty-one places with a knife including a deep cut on my left breast."[90]
See Katmara B. testimony: "At this point we were given guns and cutlasses, and told that we were to go and cut hands off."[91]
See F.K. testimony: "They bet on the sex of the baby so they decided to check it. Kill Man No Blood split open her belly. It was a boy. One of the other rebels took the baby out and showed everyone that it was a boy. The baby was still alive when he threw it on the ground next to the woman but died shortly after"[92]
The crime of mutilation has been listed as a war crime by Art 8(2)(c)(i) of the Rome Statute and the ICC Elements explain mutilation as permanent disfigurement or permanently disabling or removing an organ or appendage under circumstances that are not medically justified. ICC Elements, Article 8(2)(c)(i)-2. Consequently, sexual mutilation includes disfiguring or removing a woman's breasts, face or other part of the body; removing the uterus or fetus of a women; burning and cutting sexual organs and breasts, burning and cutting the vagina. It is clear that the reported cases of cutting open women to remove the fetus constitute mutilation as well as torture and enforced sterilization.
Cruel treatment involves an act or omission that knowingly causes serious mental or physical suffering or injury, or constitutes a serious attack on human dignity.[93] Treatment that does not meet the purpose requirements of torture may constitute cruel treatment. [94] For example, the following acts constitute "cruel treatment": forced nakedness and terrorizing and threatening physical and sexual violence.
Many elements of international human rights law relate to sexual violence and to crimes that target women and girls in a discriminatory manner.
Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), for instance, provides that: "Everyone has the right to liberty and security of person." The ICCPR (article 3), like many other human rights instruments, is explicit in affirming "the equal right of men and women to the enjoyment" of all rights it covers. The ICCPR as well as the Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (CAT) prohibit torture under all circumstances. Article 1 of the convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person....when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the only major UN human rights treaty devoted to the equality of women. It was adopted by the United Nations in 1981 and is monitored by the Committee on the Elimination of Discrimination Against Women, usually known as the CEDAW Committee. CEDAW defines violence against women as a form of gender-based discrimination. In 1992, the Committee affirmed that both public and private forms of violence ("all forms of discrimination") against women are human rights violations in the CEDAW Committee's Recommendation 19, which establishes the links between violence and discrimination. CEDAW reinforces state responsibility in ensuring "without delay" that any "act or practice of discrimination against women" be stopped (article 2(d)). The CEDAW Committee has enumerated a wide range of obligations of states related to combating sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling and support services, and medical and psychological assistance to victims. CEDAW also has an Optional Protocol, which is a mechanism that offers victims of rights violations the possibility of real remedy in two ways: through a complaints procedure (Article 2) which allows individual women and women's groups to file a complaint directly to the Committee; and, through an inquiry procedure (Article 8), which enables the Committee to initiate direct inquiries and seek information to verify complaints of systematic CEDAW violations in a state party. It also establishes a follow-up procedure where governments may be required by the Committee to submit a progress report on remedial efforts taken regarding complaints (Article 9). However, domestic remedies must be exhausted before a complaint can be submitted to the Committee.
In a significant development in 1993, the United Nations General Assembly adopted the Declaration on the Elimination of Violence against Women" (A/RES/48/104, December 20, 1993, issued on February 23, 1994) in which it declared that prohibiting gender discrimination included the elimination of gender-based violence and that all nation "should pursue by all appropriate means and without delay a policy of eliminating violence against women." While not technically, binding, the resolution is increasingly regarded as a source of customary international law. In Article 1, it defines violence broadly: 'Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.' The Declaration specifies particular forms of violence as encompassed in the definition: violence within families, including sexual abuse of children, dowry-related violence, marital rape, female genital mutilation and "other traditional practices harmful to women"; violence in the general community such as sexual harassment and intimidation in the workplace and educational, institutions; and all forms of violence perpetrated or condoned by the State. Further, it explicitly recognizes that women in situations of armed conflict are especially vulnerable to violence. One major obstacle to women's equality worldwide has been the tendency for nations to invoke "traditional values" as a justification for discrimination against women. The Declaration makes a strong stand against arguments of "cultural relativism" in the context of violence against women. Article 4 states that "States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination." Article 4 (c) also urges states to take all appropriate measures to eliminate violence against women, whether perpetrated by the state or private actors in the home or in the community.
The Declaration analyzes violence against women, not as the result of individual acts of aberrant behaviour, but as a "manifestation of historically unequal power relationships between men and women." It states that "violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men." The Declaration implies that violence both contributes to, and maintains, women's inequality and that its eradication will require fundamental societal restructuring.
Article 19(1) of the Convention on the Rights of the Child (CRC) requires states parties to protect children from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse." States are also enjoined to provide special protection and assistance to a child "temporarily or permanently deprived of his or her family environment" (article 20(1)). A child's right to "such measures of protection as are required by his status as a minor" is also guaranteed by the ICCPR (article 24 (1)).
The African Charter on Human and Peoples' Rights guarantees the "elimination of every discrimination against women...and protection of the rights of the woman and the child" as well as the right to integrity of one's person, the right to be free of "all forms of exploitation and degradation....particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment" (articles 3,4 & 5).
The above-described sexual violence crimes committed against women and girls continue to haunt the survivors long after the abuses are committed, leaving lasting scars on the physical and mental well-being of survivors. Other related consequences of the war that women suffer include loss of family members, stigma and loss of social position, poverty, and shortages of food, water, clothing, shelter, health care and sanitation.
Additionally, it is foreseeable that an armed conflict such as the one in Sierra Leone, involving widespread sexual violence, will serve as a vector for sexually transmitted disease. A World Health Organization report found an alarming high prevalence rate of HIV/AIDS amongst Sierra Leone Army soldiers. Some sexual violence victims are sure to have been infected by the virus, given that the probability of the transmission of HIV and other sexually transmitted diseases is greatly increased during violent sex. In addition, in post-conflict situations, women continue to remain marginal and vulnerable to violence and exploitation, be it by former perpetrators still in the community, within community or in the domestic sphere.
The relative lack of attention paid to the widespread and systematic acts of sexual violence, sexual slavery and their consequences means that there are few assistance programs for survivors. The international community and the government of Sierra Leone need to drastically increase funding to ensure that desperately needed health care, education, adult literacy, skills training, trauma counselling, and income-generating schemes are provided. Rape and other forms of violence against women continue to remain largely unpunished in the domestic legal system. The TRC can play a role in pushing for the government and international community to meet the urgent needs of the women survivors.
The TRC report should make recommendations to the Sierra Leonean government to address and strengthen the promotion and protection of women's human rights, including:
Regarding Women's Rights
Women and the Law
· Strengthen the capacity of its police force and judicial system adequately to address cases of sexual violence including rape. Efforts should include the recruitment of female police officers, training in appropriate means of obtaining evidence, development of procedures that protect the rights and privacy of victims, protection for victims and witnesses, development of forensic capacity, and social services.
· Work with professional organizations and international experts to establish gender-based violence reporting procedures that are effective, sensitive, and that protect victims.
· Repeal the provision in the 1999 Lomé Peace Agreement Act that grants amnesty to all warring parties, so that individuals who committed acts of sexual violence (and other crimes) during the war may be prosecuted in the domestic courts.
· Establish an independent national human rights commission as provided under the Lomé Peace Agreement that will contribute to the promotion and protection of human rights beyond the lifespan of the Special Court for Sierra Leone and the Truth and Reconciliation Commission.
Women's Health
· Prioritize the nationwide establishment of free reproductive health clinics for women and girls that can provide testing and treatment for sexually transmitted diseases, including HIV/AIDS treatment, along with other services.
· Establish programs (medical care, trauma counselling and mental health programs) that will help to rehabilitate the survivors of sexual violence and provide them with desperately needed assistance. The government of Sierra Leone must redress its neglect of survivors' protection needs by drastically increasing funding and encouraging donor funding for this purpose.
· Increase the number of female clinicians/health care workers and to increase the number of health care workers trained in women's health.
· Formulate and execute a national strategy to address HIV/AIDS to facilitate treatment and prevention, and to encourage donor funding to support those efforts.
Women and their General Rehabilitation into Society
· Establish earmarked assistance programs for women in the areas of education, jobs/skills training, and income-generating schemes.
· Strengthen women's civil society groups through capacity building and leadership training.
· Take special efforts to encourage community acceptance of both rape survivors and their children as they reintegrate into society, while ensuring that the physical, emotional and economic well-being of the children born as a result of rapes are protected. Engage in a nationwide public awareness campaign, in collaboration with women's groups, in order to educate women, men and youth on issues relating to sexual and domestic violence against women and to women's rights. This could include promulgation of information through radio.
The TRC report should make recommendations to the international community to address and strengthen the promotion and protection of women's human rights, including:
· Urge the international community-the U.N., donor governments and humanitarian organizations-to provide technical and financial support to the Sierra Leonean government and civil society groups for legal reform and training and assistance to sexual violence survivors. In particular, prioritize initiatives directed at women including legal reform, increased judicial and police capacity to respond to the problem of sexual violence, reproductive health, and skills training. Call on the international community to assist and develop the capacity of Sierra Leonean civil society organizations promoting women's rights.
· Ensure that Security Council Resolution 1325 on Women, Peace and Security requiring greater involvement of women in all peacekeeping and peacebuilding measures is implemented by the peacekeeping operation in Sierra Leone. Ensure that the peacekeepers include women in all aspects of planning for peace, humanitarian relief efforts, demobilization, reintegration and rebuilding and support local organizations working to promote women's full participation and rights. Take steps to discipline and hold accountable any peacekeeper responsible for sexual violence, abuse or exploitation of Sierra Leonean women.
[1] Human Rights Watch, "We'll kill you if you cry", Sexual violence in the Sierra LeoneConflict", January 2003, p.35, available on http://www.hrw.org/ (hereinafter HRW report, "We'll kill you if you cry").
[2] Note that this section is entirely based on the findings of Human Rights Watch, except when otherwise specified. See HRW report, "We'll kill you if you cry", supra note 1, pp. 3-5.
[3] Physicians for Human Rights, "War-related sexual Violence in Sierra Leone: a Population Based Assessment", January 2002, p. 78, available on http://www.phrusa.org/ hereinafter PHR report).
[4] The statistics reported below are taken from PHR report, Ibid, pp.1-3.
[5] PHR report, supra note 4, p. 65.
[6] Preliminary Report submitted by the Special Rapporteur on Violence against Women, its Causes and Consequences, Commission on Human Rights, Fiftieth Session, November 1994, U.N. Document E/CN.41995/42, p.64.
[7]See, for example, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 18 Oct. 1907, 3 Martens Nouveau recueil (Ser. 3), 461, art.46, 187 Consol. T.S. 227 (entered into force 26 Jan. 1910) art. 46: "Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected."
[8] Article 6( c) states that crimes against humanity are "Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, or other inhuman acts committed against any civilian population or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated." The Nuremberg Charter, as amended by the Berlin Protocol, 59 Stat. 1546, 1547 (1945), E.A.S. No. 472, 82 U.N.T.S. 284
[9] Trial of the major war criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1October 1946, Vol. XXII (1947-1949) 49.
[10] Allied Control Council Law No. 10, 20 Dec. 1945, (Official Gazette of the Control Council of Germany), No. 3, 22. See generally Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," The Yale Law Journal (New Haven, CT), vol. 100, no. 8, June 1991, p. 2537.
[11] See the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery, Judgement on the Common Indictment and the Application for Restitution and Reparation, (Tokyo, 2000), delivered at The Hague, The Netherlands, 4 December 2001.
[12] Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. (Geneva Convention IV) prohibits "any attack of [women's] honour, in particular against rape, enforced prostitution, or any form of indecent assault." Common art. 3 (1) c) refers to " outrages upon personal dignity, in particular humiliating and degrading treatment", whereas art 147 describes grave breaches.
[13] While Common Article 3 to the Geneva Conventions, applicable to internal armed conflict left rape implicit, Protocol II to the Geneva Conventions forbids rape explicitly, but characterizes it as «outrages upon personal dignity» comparable to «humiliating and degrading treatment» rather than as a physical assault. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature December 12, 1977, Article 4.2(e), 1125 UNTS 3, 16 ILM 1442 (1977) [Protocol II].
[14] Declaration and Programme of Action, UN World Conference on Human Rights, adopted in Vienna on June 25 1993, A/Conf. 157/23 . Even the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) adopted in 1979, has no specific provision on violence against women. In 1985, the Nairobi Forward-looking Strategies had acknowledged the problem of violence against women, and urged governments to respond, but there was no explicit recognition that violence against women is a human rights issue. In the years following Nairobi, the issue of violence against women received consideration within the ECOSOC, particularly by the Commission on the Status of Women. In addition, in 1992 the Committee on the Elimination of Discrimination Against Women, the body created to monitor the CEDAW, adopted a general recommendation on "Violence against Women" (CEDAW General Recommendation 19). It stated that "the definition of discrimination includes gender-based violence" and that "gender-based violence ...seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men". While CEDAW has extended the notion of discrimination to include violence against women, the impact of its work is largely confined to those nations that are parties to the Convention.
[15] The Prosecutors of the ICTY have issued indictments treating rape as a crime against humanity in, for example, Prosecutor v. Meakic and Others, Indictment as amended 2 June 1998, Case No IT-95-4; Prosecutor v. Jankovic and Others, Indictment Case No IT-96-23, as amended 7 Oct 1999; for the ICTR, see for example Prosecutor v. Semanza, Indictment, Case No ICTR-97-20.
[16] Furundzija and Celibici Judgments, supra note 15; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23& IT-96-23/1-A, Appeal Chambers, 12 june 2002 (hereinafter, Kunarac Appeal Judgment); on rape as torture and forced nakedness as inhumane treatment, see Prosecutor v. Jean Paul Akayesu, Trial Judgment, Case ICTR-96-4-T, Ch.I, 2 sept 1998 (hereinafter, Akayesu Trial Judgment) para. 687 and 697.
[17]Furundzija Judgment, supra note 15; Kunarac Appeal Judgment, ibid.
[18] RomeStatute of the International Criminal Court, 17 July 1998, UN Doc. No. A/CONF.183/9, 37 I.L.M. 999, entered into force on July 1 2002,(hereinafter Rome Statute). For discussion of the negotiation of the sexual and gender crimes, see Cate Steains, "Gender Issues" in Gender Crimes in R Lee ed, The International Criminal Court: the Making of the Rome Statute-Issues, Negotiations, Results, The Hague. Kluwer Law, 1999; Rhonda Copelon, ''Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law'' (2000) 46 McGill L.J. 217; Barbara Bedont, ''Gender Specific Provisions in the Statute of the International Criminal Court'', in F. Lattanzi, W. Schabas (eds), Essays on the Rome Statute of the ICC, Naples, Editoriale Scientifica, 1999.
[19] Rome Statute, ibid, Article 7(1)(g) and Article 8(2)(b)(xxii) and 8(2)(vi)(e).
[20]Ibid., Article 7(1)(h) and 7(2)(g).
[21] Ibid., Article 9. Elements of Crime, U.N. Doc. PCNICC/2000/1/Add.2 (2000) (hereinafter ICC Elements).
[22] See Introduction to ICC Elements, ibid., para. 9 and article 6 (genocide). We have not studied the crime of genocide in this statement to the TRC since we believe that the crime was not committed in the context of the Sierra Leone conflict.
[23] Kunarac Appeal Judgment, supra note 18.
[24] See ICTY, Prosecutor v.AntoFurundzija, Case No IT-95-17/1, Judgment (10 Dec 1998) (hereinafter, Furundzija Judgment) and Prosecutor v. Delalic and Others, Case No IT-96-21, Judgment (16 Nov 1998) (hereinafter Celibici Judgment) , where sexual violence was charged as torture.
[25] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Trial Judgment, Case IT-96-23-T, 22 Feb 2001, para. 487 (hereinafter Kunarac Trial Judgment); Kunarac Appeal Judgment, ibid.;ICC Elements, supra note 23, 8 2) b) xxii)-1 (3)
[26]Kunarac Appeal Judgment, supra note 18.
[27] Akayesu Trial Judgment, supra note 18, para. 580.
[28] Kunarac Trial Judgment, supra note 26, para. 429.
[29] ICC Elements, supra note 23, art 7 (Crimes against Humanity), Introduction, para. 3.
[30]Kunarac Appeal Judgment, supra note 18.
[31] Rome Statute, supra note 20, Article 7(1). See also Kunarac Trial Judgment, supra note 26, para. 244 and 434. Kunarac Appeal Judgment, ,ibid. It should be noted that one aspect of the chapeau elements for crimes against humanity was highly contested and dubiously resolved, i.e., the question of whether the state or organization must actively pursue the forbidden attack or whether passive tolerance of the attack is sufficient. In our opinion, the threshold requirements of the ICC Elements are neither authorized by the Rome Statute nor consistent with international legal standards. See Kunarac Appeal Judgment, ibid.
[32] Kunarac Trial Judgment, supra note 26, para. 435.
[33] Prosecutor v Tihomir Blaskic, Trial Judgment, Case IT-95-14-T, 3 March 2000 9 (ICTY).
[34] Kunarac Trial Judgment, supra note 26, para. 431.
[36] Rome Statute, supra note 20, Article 7 (1)(g)(crimes against humanity) and 8(2)(e)(vi)(non-international war crimes); the para.llel provisions of the ICC Elements, supra note 23, Articles 7(1)(g)-1 and 8(2)(e)(vi)-1; and SC-SL Statute, ibid., Article 2 (g)-1.
[37] Celibici Judgment, supra note 15.
[38] ICC Elements, supra note 23, Articles 7(1)(g)(i) and 8(2)(b)(xxii) and 8(2)(e)(vi). See Furundzija Judgment, supra note 15.
[39] The concept of "invasion" is intended to be broad enough to be gender-neutral. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. See art.7(1)(g)-1 of the elements of crimes and procedure, NU, Doc. Off. ICC-ASP/1/3.
[40] Akayesu Trial Judgment, supra note 18, para. 688.
[41] Kunarac Trial Judgment, supra 26; Kunarac Appeal Judgment, supra note 18.
[42] Ibid., p.29.
[43] Rules of Procedure and Evidence, ICC-ASP/1/3. Rule 70 a) b) c) .
[44] It should be noted that the ICC Rules contain very strict provisions against the admission of prior sexual conduct of the victim. Ibid., Rule 71: "In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness".
[45] HRW, "We'll kill you if you cry", supra note 1, p.34-35.
[46] Ibid, p.33.
[47]HRW report, "Sierra Leone, Getting away with Murder, Mutilation, Rape", July 1999, p. 50, available on http:// www. hrw.org/. (hereinafter, HRW report, "Sierra Leone, Getting away with Murder,Mutilation and rape").
[48] For a further discussion on sexual slavery, please refer to "Enslavement (crimes against humanity)", infra p.25. Rome Statute, supra note 20, Articles 7 (1)(g) and 7(2)(c) and 8(2)(e)(vi); ICC Elements, supra note 23, Articles 7 (1)(g)-2 and 8(2)(e)(vi)-2; and SC-SL Statute, supra note 37, Article 2 (g)-2.The Statutes also recognize the crime of «enforced prostitution.» Articles 7 (1)(g) and 8(2)(e)(vi) of the Rome Statute and parallel provisions of the ICC Elements and Article 2 (g)-3 of the SC-SL Statute. Although the elements of sexual slavery and enforced prostitution differ, enforced prostitution has long been an euphemistic and stigmatizing way of referring to sexual slavery. Even the factor of a pecuniary exchange in the context of force, required for enforced prostitution in the ICC Elements, does not operate to distinguish slavery from forced prostitution. Because there is no example known to us in the Sierra Leone situation which is not also sexual slavery, the Coalition counsels against utilizing this nomenclature because of its detrimental impact on women.
[49] Rome Statute, ibid., Article 7(2)(c) and ICC elements, ibid., cited above.
[50] ICC Elements, ibid., Article 7(1)(g)-2. See ICC elements, supra note 23, art. 7(1)(g)-2, note 18: "It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children."
[51] Final Report Submitted by Gay McDougall, Special Rapporteur for Systematic Rape, Sexual Slavery, and Slavery-like practices during Armed Conflict, UN Doc. E/CN.4/Sub.2/1998/13 (12 June 1998), para. 45.
[52]HRW report, "We'll kill you if you cry", supra note 1, p. 43.
[53] Ibid, p. 44
[54] Rome Statute, supra note 20, Articles 7 (1)(g); ICC Elements, supra note 23, Articles 8(2)(e)(vi) and 8(2)(e)(vi)-3; SC-SL Statute, supra note 37, Article 2 (g)-3.
[55] ICC Elements, ibid., Article 7(1)(g)-4 f.
[56] Supra note 16.
[57] HRW report, ''We'll kill you if you cry'', supra note 1, p. 42-43.
[58] Ibid., p. 42-43.
[59] Rome Statute, supra note 20, Articles 7 (1)(g) and 8(2)(e)(vi); ICC Elements, supra note 23, Articles 7 (1)(g)-5 and 8(2)(e)(vi)-5. The SC-SL Statute, supra note 37, does not list this crime.
[60] ICC Elements, ibid., Article 7(1)(g)-5. The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice. It is understood that "genuine consent" does not include consent obtained through deception
[61] HRW report, "We'll kill you if you cry", supra note 1, p.35.
[62] Rome Statute, supra note 20, Articles 7 (1)(g) and 8(2)(e)(vi; ICC Elements ,Articles 7 (1)(g)-6 and 8(2)(e)(vi)-6; and SC-SL Statute, supra note 37, Article 2 (g)-5.
[63] The ICC Elements, ibid., require that the sexual violence be of compara.ble gravity to the other sexual and reproductive crimes. To the extent that might result in a lower standard for inhumane treatment than for sexual violence, this addition in the ICC Elements would either be discriminatory or the lesser form of sexual violence would have to be prosecuted as inhumane treatment
[64] Akayesu Trial Judgment, supra note 18, para 688.
[65] Kunarac Trial Judgment, supra note 26, para. 457.
[66]For definition of this crime, see ICC Elements, supra note 23, Article 8(2)(c)(ii). The ICTY has also defined the crime in similar terms: "An outrage upon personal dignity is "any act or omission which would be generally considered to cause serious humiliation or otherwise be a serious attack on human dignity. [?] The statute does not require that the perpetrator must intend to humiliate his victim, that is, he perpetrated the act for that very reason. It is sufficient that he knew that his act or omission could have that effect". Kunarac Trial Judgement, supra note 28, para. 507 and 773-774. See also Zlatko Aleksovski Trial Judgment, Case IT-95-14/1-T, 25 June 1999, para. 54, 55, 56 confirmed on appeal, Case IT-95-14/1-A, 24 March 2000, para. 28. Apart from sexual violence, offense against honour and humiliating and degrading treatment can apply to such acts such as: the impossibility to bury the bodies of a person's relatives or the impossibility to respect the dead rituals that condemns a person to damnation, the loss of home and land because they are synonymous to the loss of identity and self-esteem, the violation or destruction of cemeteries or rituals locations, the obligation to eat with the wrong hand, or the public performance of certain acts, the presence of laugh and applauds exacerbate the humiliation.
[67]Rome Statute, supra note 20, Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
[68] See Cate Steains, "Gender Issues", supra note 20.
[69] See Ariane Brunet and Stéphanie Rousseau, «La reconnaissance des violations spécifiques des droits fondamentaux des femmes: une condition indispensable de la lutte contre l'impunité» in CIDPDD Campagne contre l'impunité: portrait et plan d'action, Montréal 1997, p.207-236; Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, Hastings Women's Law Journal, vol 5 (1994) pp.243-265.
[70] HRW report, "We'll kill you if you cry", supra note 1, p.31.
[71] Ibid., p.33.
[72] Human Rights Watch, "Getting Away with Murder, Mutilation, Rape New Testimony from Sierra Leone" July 1999, p. 54, available on http://www.hrw.org/
[73] Rome Statute, supra note 20, Article 7 (1) h.
[74] Cate Steains, "Gender Issues", supra note 20; Rhonda Copelon, "Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law'', supra note 20.
[75] Kupreskic Trial Judgment, Case IT-95-16-T, 14 January 2000, (ICTY) para.571, 615(b). Some accused by the ICTY also pleaded guilty to the count of persecution that encompasses sexual assaults. See, ICTY, indictments of Stevan Todorovic, Blagoje Simic, Milan Simic, Miroslav Tadic, Simo Zaric.
[76] Prosecutor v. Kvochka and Others, Indictment, as amended 1 Oct. 1999.
[77] Kupreskic Trial Judgment, supra note 77, footnote 894.
[78] See for instance " Rape and Other Sexual Violence against Boys and Men by Male and Female Rebels" in HRW report, "We'll kill you if you cry", Ibid, p. 42.
[79] Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 23 ILM 1027, entered in force 26 June 1987.
[80] See Furundzija Trial Judgment, supra note 15, para. 153 and 154. See also, ICJ, Barcelona Traction Light and Power Company Ltd, 1970 Report 3, 32, para. 32-34.
[81] Furundzija Trial Judgment, ibid., para. 267.
[82] HRW report, "We'll kill you if you cry", supra note 1, p.34.
[83] Ibid., p.33.
[84] Ibid., p.36.
[85] See Cherif Bassiouni, "Sources and Theory of International Criminal Law" in International Criminal Law, Vol I, Crimes, 2nd Ed., Transnational Publishers inc., Ardsley, New-York, pp.79-80, and 663. See also, ICJ, Barcelona Traction Light and Power Company Ltd, 1970 Report 3, 32, para. 32-34.
[86] The elements have been developed in Kunarac Trial Judgment, supra note 26, para. 542 and 543.
[87] Kunarac Appeal Judgment, supra note 18.
[88] See HRW report, "We'll kill you if you cry", supra note 1, p. 31-32.
[89] ICTR, Kayishema Trial Judgment, Case ICTR 95-1-T., Ch.II, 21 May 1999, para. 151.
[90] HRW report, .We'll kill you if you cry", supra note 1, p.31.
[91] PHR report, supra note 4, p.69.
[92] HRW report, "We'll kill you if you cry", supra note 1, p.35.
[93] ICTY, Celebici Trial Judgement, supra note 15, para. 552. See also ICC Elements, supra note 23, Article 8(2)(c(i)-3.
[94] Ibid, para. 552.
Sierra Leone Truth & Reconciliation
(Report)