Unearthing the customary law foundations of "forced marriages" during Sierra Leone's civil war: the possible impact of international criminal law on customary marriage and women's rights in post-conflict Sierra Leone.

• Author: Belair, Karine

[T]here was, in the olden days, marriage by capture. The Protectorate of Sierra Leone was, up to the turn of this century, the battle ground for tribal wars. Men saw in these wars an opportunity of winning wives for themselves. An attack upon a town or village resulted in the extermination of the male inhabitants and the capture of the women, who subsequently became the wives of their conquerors. No requirement was essential for the validity of such marriage other than a public declaration by the captor of his intention to cohabit with his captive followed by actual cohabitation. Such wife was, however, regarded as a slave.... Nowadays, there are no longer inter-tribal wars in the country and, with the abolition of slavery in 1928, this kind of marriage no longer exists." (1)

I.S., ... abducted and gang raped by the West Side Boys from January to August 1999, explained how Commander "Blood" had initiated the "wife" selection process: "One of the commanders said he was going to amputate all of us. But another commander, C.O. Blood, said 'Don't kill them, let's chose them as wives.' Then we were divided up. The one who seemed to be in charge, C.O. Blood, chose me. When he looked at me I was frightened. His pupils were huge--he was high on drugs. He took me to a house and told me to lie down on the ground. He said if I did not allow him to have sex, he would kill me." (2)

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During the civil war that ravaged Sierra Leone from 1990 to 2001, thousands of women and girls were raped, abducted, and taken to Revolutionary United Front (RUF), West Side Boys, or Armed Forces Revolutionary Council (AFRC) rebel camps. (3) They were assigned to a man and, from that day forward, had to submit to him sexually and perform countless domestic tasks for him. This relationship between the rebels and their captives was commonly known as "forced marriage," with the captive women testifying that they were assigned to a "husband" or "rebel husband," and the rebel men referring to their captives as "wives" or "bush wives." (4) The type of marriage that was thought to have disappeared with the conclusion of inter-tribal wars and the abolition of slavery appeared to have returned to Sierra Leone from its past, invigorated and with new force.

In their articles about the conflict, reporters used the terms "wife," "husband," and "marriage" (5) in quotation marks. Quotation marks were also consistently used for those terms by investigators who reported on the "forced marriage" phenomenon occurring in different armed conflicts, (6) clearly indicating their uneasiness, if not disbelief, in the appropriate use of familial labels to describe these relationships. In fact, these reporters stated on numerous occasions that the use of such matrimonial terminology to refer to the type of situation suffered by Sierra Leonean women was inappropriate: "[d]escribing this experience as a 'forced' marriage is a complete misrepresentation and distortion of a [girl's] experience"; (7) "[t]he arrangement was sometimes referred to as 'forced marriages' and the women held as 'wives,' but these terms obfuscate the total lack of consent by the women and the coercive conditions under which they were held." (8)

This Article will explore the use (and misuse) of the word "marriage" to describe the relationship between rebels and their captured "wives," as well as its potential impact on the customary law of marriage. Part I sets forth the argument that the term "marriage" is a criminal misnomer that masked what, under international criminal law, was clearly a situation of sexual slavery. Part II examines the customary law of marriage in Sierra Leone to help explain why the word "marriage" may have been considered an appropriate label to describe the rebel-captive relationship. It uncovers the similarities between "forced marriages" and marriages under customary law, most significantly the possibility that sexual slavery may occur within customary law marriages.

To that end, Part III proposes that categorizing "forced marriages" as sexual slavery has a potentially transformative effect on the customary law of marriage. Recognition of the right of female sexual autonomy is essential in amending customary law so as to prevent a recurrence of "forced marriages" or the existence of sexual slavery within customary marriage. Established to prosecute crimes committed in Sierra Leone since November 30, 1996, the Special Court of Sierra Leone could use the language of sexual autonomy in defining sexual violence crimes by relying on existing international criminal law. As this Article discusses, the International Criminal Tribunal for the Former Yugoslavia has recognized a woman's right to sexual autonomy. Should the Special Court use similar reasoning in pending cases, it would create domestic precedent for the recognition of such a right. Its decisions could have a transformative effect not just on the laws of Sierra Leone, but on human rights discourse internationally.

Part IV examines the role that the Sierra Leone Truth and Reconciliation Commission had--and its Report continues to have--in initiating the movement for reform of traditional practices that violate women's rights. The Truth and Reconciliation Commission was in a privileged position to connect the sexual violence suffered by women during the conflict to their pre-conflict status and, in so doing, directly denounce violations of women's rights brought about by customary law. It played an essential role that was complementary to the Court's. The Article concludes with the observation that the power of international criminal law is not limited to its ability to shed light on customary practices that discriminate against women. It also has the potential to shape the law and/or instigate legal reform when considered or relied upon by transitional justice institutions such as the Special Court and the Truth and Reconciliation Commission. In this way, international criminal law may aid in the creation of equal status for Sierra Leonean women during times of peace and during times of conflict.

1. "FORCED MARRIAGE" DURING THE SIERRA LEONE CONFLICT: ITS TRUE NATURE UNCOVERED

   1. A Marriage in Quotation Marks

      A "forced marriage" during the Sierra Leone conflict would begin when rebels attacked a village, wreaking violent havoc. (9) The "future wife" would be utterly terrified, witnessing appalling atrocities committed against the women of her community: (10) the rebels would insert boiling oil and embers into the vagina of some victims; (11) amputate arms and hands; (12) pluck nursing infants from their mothers' arms, slice them in two, or toss them in the air; (13) cut open the bellies of pregnant women to confirm their bets on the sex of the unborn child. (14) Girls were brutally gang raped vaginally and anally. (15) They were often still virgins, only eleven or twelve years old. (16) In this psychologically devastating context, "marriage" would begin; a girl would be abducted and assigned to a combatant or commander. (17) Members of her family who tried to intervene would be killed. (18)

      The new "wife" was forced to follow her "husband" to the rebel camp. H.K, a former rebels' abductee, reported to Human Rights Watch that she was completely at her "husband's" disposal sexually, made to do whatever he liked, whenever he liked: "He used to sex me twice every night. He made me take his penis in my mouth. I tried to refuse him but he always threatened to kill me." (19) The rebels, who generally exercised exclusivity over their "wives," (20) made the decisions about their pregnancies. A rebel would force his "wife," under the threat of death, to abort a child she was expecting when he abducted her (21) or to keep a child if it was his. (22) In addition to the sexual aspect of life with a "rebel husband," the "wife" was forced to perform a vast array of domestic tasks--cooking, laundry, cleaning, farming, and carrying looted items (23)--and was subjected to abuse. "Bush wives" were frequently beaten with sticks and guns, and at times, sexually tortured. (24) They were abandoned when their "husbands" got tired of them, or when they became too ill to meet their demands. (25)

      How could they get out of their situation? Trying to flee meant risking their lives: "I wanted to run away, to escape, but there was no way. If you were caught trying to escape, you were killed or put in a box." (26) Running away from a rebel faction also meant risking capture by another. (27) The rebels made escape more difficult by carving the faction's letters--"RUF" or "AFRC"--onto the chests of their "wives." (28) Women who were caught by government forces and suspected of being rebels were often killed. (29) The obstacles to escaping also loomed heavily on another front: "In many instances, women--intimidated by their captors and the situation they were in--felt powerless to escape their lives of sexual slavery, and were advised by other female captives to tolerate the abuses, 'as it was war.'" (30) The rebels "perniciously instilled fear in their 'wives' by telling them that their families would not accept them back." (31) Indeed, "ex-wives" of rebels have experienced ostracism from their community and rejection from their former husbands. (32) What were the economic and social alternatives for these women if they did leave their "husband" who, at least, provided them with minimal protection and means of support? (33) "Numerous victims end up being commercial sex workers, selling their bodies for as little as U.S. 50 cents." (34) After seeing their family decimated and becoming accustomed to their new life, some--particularly those who were abducted young and have had children fathered by a rebel--even came to consider their "rebel husband" as a surrogate family. (35) Those who stayed with their captors considered "themselves married ... and believ[ed] that they [had] no choice but to remain with their husbands." (36) The...