Academic journal article Melbourne Journal of International Law

Gender Violence or Violence against Women? the Treatment of Forced Marriage in the Special Court for Sierra Leone

Academic journal article Melbourne Journal of International Law

Gender Violence or Violence against Women? the Treatment of Forced Marriage in the Special Court for Sierra Leone

Article excerpt

The article considers the case for viewing forced marriage, a prevalent form of violence suffered by women during the Sierra Leone conflict, as a gender crime. The article begins with a brief examination of the Special Court for Sierra Leone trials, commonly known as the Armed Forces Revolutionary Council Trial, the Armed Forces Revolutionary Council Appeal, the Revolutionary United Front Trial and the Charles Taylor Trial. Part IV then puts forward a conceptualisation of forced marriage as a gender crime and not purely violence suffered by women. It is argued that in order to fully reflect the nature of the harm suffered, the gender element of the violence must be foregrounded. This argument rejects calls for forced marriage to be viewed as enslavement or sexual slavery and emphasises the specific harm stemming from the label 'wife' as demonstrative of the force of socially assigned gender roles; these roles are integral to the crime rather than just forming the broader social context. This suggests that forced marriage as a gender crime should be seen as a stand-alone crime separate from other instances of forced marriage. In Part V and Part VI, it will be argued that the categorisation of forced marriage as a gender crime is a vital step towards the recognition of this type of gender violence as being within the scope of international law. Specifically, this article considers the characterisation of forced marriage under international criminal law in light of its interest to international refugee law, where similar violence might be raised as 'persecution' under the definition in art 1A(2) of the Convention relating to the Status of Refugees.

CONTENTS

I   Introduction
II  The Context
III The Characterisation of Forced Marriage before the SCSL
      A AFRC Trial
      B AFRC Appeal
      C RUF Trial
      D Charles Taylor Trial
IV  Forced Marriage as a Gender Crime
V   Gender Violence
VI  Interaction between International Criminal Law and
    International Refugee Law
      A Kunarac and Gender-Neutral Crimes
VII Conclusion

I INTRODUCTION

The trials, judgments and appeals heard before the Special Court for Sierra Leone ('SCSL') have attracted much interest on a range of issues--some supportive and some critical, (1) The court was criticised for failing to address so-called 'lower level' violence but a limited mandate and restricted resources meant indictments were brought against only 13 senior members of the rebel forces and the former Liberian President, Charles Taylor. (2) Concerns were also raised as to the pleadings of these crimes as joint criminal liability cases. (3) However, amongst the most hotly debated issues was how to charge the endemic violence against women during the conflict partially because this was the first time such charges had attracted serious international judicial interest. (4) Although the SCSL prosecutions of forced marriage had set a precedent in many ways, there remains considerable lack of clarity in defining and recognising forced marriage) This article considers the case for viewing forced marriage--a widespread form of violence against women during the conflict--as a gender crime. It suggests that it is not only accurate to label forced marriage in the context of Sierra Leone as a gender crime but it is also imperative to do so in order to confirm the status of gender violence in other related areas of international law.

There is by no means universal agreement amongst those seeking greater action on gender violence and violence against women as to the utility of international law. However, the recognition of rape and sexual slavery as international crimes and the corresponding acknowledgment of rape as persecution under refugee law might be said to demonstrate that international law is capable of being a site for meaningful engagement in addressing violence against women. (6) Yet, as will be explored below, despite all the progress made in recognising violence against women as within the scope of international criminal law, (7) the place of gender violence remains arguably ambivalent, with much work to be done to establish gender violence as being appropriate for international legal concern. …

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