Prosecuting Sexual Violence at the Special Court for Sierra Leone

On 13 December, I organized a side-event at the International Criminal Court Assembly of States Parties titled “Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone”. The event was co-sponsored by the Permanent Missions of Sierra Leone and Canada, UN Women, the Canadian Partnership for International Justice and Western University (Canada).

IMG_6733

Valerie Oosterveld & Sharanjeet Parmar, Photo Credit: CPIJ

At the event, Sharanjeet Parmar discussed her experience as a prosecutor at the Special Court for Sierra Leone (SCSL) in the prosecution of sexual and gender-based violence (SGBV). I presented conclusions from a UN Women-funded project to gather best practices and lessons learned from the SCSL in its investigations and prosecutions of sexual and gender-based violence (SGBV). Fannie Lafontaine, Canada Research Chair on International Justice and Human Rights, moderated the event, which was opened by Ambassador Amadu Koroma, Deputy Permanent Representative (Political),  Permanent Mission of the Republic of Sierra Leone to the UN, and Catherine Boucher, Counsellor, Permanent Mission of Canada to the UN.

In this blog post, I will briefly explain the UN Women-funded project and some of the best practices that emerged. Over the past year, I, along with a small team consisting of Wayne Jordash, former SCSL defence counsel, Maxine Marcus, former SCSL prosecutor, and Fannie Leveau, gender issues consultant, interviewed over 30 individuals who had worked with the SCSL during that court’s 2002-2013 lifespan.

We spoke with individuals with a wide range of experiences – as investigators and prosecutors within the Office of the Prosecutor, as outreach workers, psycho-social support staff, and victim/witness protection staff in the Registry, defence counsel, judges and Chambers staff, and civil society members who worked closely with the SCSL. All had been involved in some way in investigating, prosecuting, defending or considering crimes of SGBV, or in supporting victims and witnesses who had experiences of SGBV.

IMG_6737

Fannie Lafontaine, Photo Credit: CPIJ

Those interviews revealed a number of best practices. First, the investigation and prosecution of SGBV was a key priority of all of the chief Prosecutors. This priority was originally set by the first Prosecutor, David Crane, at the outset of his mandate. Among his earliest hires were two investigators trained in SGBV and human rights, both experienced in gender analysis and both of whom had deep knowledge of the Sierra Leone conflict and familiarity with Sierra Leonean culture. They entered the Office with existing links to Sierra Leonean civil society (including women’s groups). Later, another gender advisor was added. These experts were integrated into multi-disciplinary investigation teams comprised of male and female international and local staff, with a combination of security, country, child rights and financial crimes experts. This meant that, from the beginning, the investigations were multifaceted and contextualized, with an understanding of how SGBV fit into the larger crime pattern. This translated into the collection of strong evidence on SGBV – in the context of all of the other crimes – for the prosecutors to use and apply in the indictments and trials.

Second, the large number of Sierra Leoneans in the SCSL – a proportion which increased over time to become a majority – meant that there was a deeper understanding of customary and traditional practices than there would be if the staff was mostly or entirely international. This strengthened the ability of those participating in the judicial process to understand witness narratives, including on SGBV, and the context within which the crimes were alleged. This was particularly important with respect to the forced marriage, rape and sexual slavery charges.

Third, the Registry contained an expert psychologist, whose work was directly linked to the SGBV and child soldier charges. The psycho-social support staff were Sierra Leonean. Together, the psychologist and her staff provided psychosocial support to SGBV survivors, among others, and adapted that support to fit the realities of the types of trauma experienced in Sierra Leone. This support helped to make victims feel comfortable enough to participate in the court process. Staff working with witnesses were provided with additional training on psycho-social support. However, it is important to note that the protection of, and support and outreach to, SGBV victims was limited by the lean budget of the court.

Fourth, outreach to the community throughout Sierra Leone was a priority within the court from the very beginning, despite the lack of budgetary support for this activity from the SCSL’s Management Committee. Outreach – including on SGBV crimes – commenced before the formal investigations began, first carried out by NGOs and thereafter directly by the SCSL. Staff were dedicated to outreach, making it happen despite the lack of budget. Eventually, the European Union agreed to fund the outreach.

The OTP was the first organ of the court to engage in outreach to women and girls in the field, with direct involvement of the Prosecutor. Responsibility was later shifted to the Registry, with the outreach program involving gender-sensitive Sierra Leoneans with connections to affected communities, including SGBV survivors. Outreach was organized and largely conducted by nationals, and that outreach included women’s groups, as well as organizations representing victims.

Principals of the SCSL travelled regularly to locations throughout the country to answer questions, explain the mandate, receive feedback and respond to concerns. They answered questions about SGBV crimes directly and openly, encouraging discussion of the issue. The outreach continued throughout the mandate of the court, and included updates on trials involving SGBV charges. That said, and in spite of the relative success of the SCSL’s outreach in comparison with other international tribunals, our interviewees indicated that more could have been done on SGBV outreach. For example, more confidence-building could have been done with those subjected to forced marriage, who were worried that they would be prosecuted by the SCSL because of their simultaneous victim-perpetrator status (as many of them were also forced to support or fight with the rebels).

Fifth, the fact that SCSL was based in Sierra Leone was a key factor in the court’s ability to successfully investigate and prosecute SGBV crimes. Interviewees indicated that localizing the court in-country facilitated access to SGBV evidence in a manner sensitive to the communal context. It also led to greater understanding of the links between SGBV and customary/traditional belief systems, as well as increased the understanding within the court of the context of the SGBV crimes. Location in-country also strengthened engagement with Sierra Leonean police services and organizations in witness protection activities and allowed for more effective risk assessments. Finally, being located in Sierra Leone allowed the court to more easily consult with community members, including consultations by the Office of the Prosecutor with a wide variety of women’s groups on the forced marriage charges.

There are many other best practices, as well as lessons learned, identified by our interviewees, which will be included in our final report, which is in the process of being drafted. If any IntLawGrrls readers have experience in the consideration of SGBV in the SCSL and wish to be interviewed for this study, please feel free to contact me at vooster@uwo.ca.

Thanks are extended to UN Women and the European Commission for funding Phase 1 of this study.

Advertisements

Expert Report on Trauma Mental Health and Mass Rape: Prosecutor v. Bemba

The landmark judgment in the Prosecutor v. Bemba case before the International Criminal Court marks the first jurisprudence from the Court in a prosecution dedicated to redressing sexual and gender-based violence (SGBV) (see our coverage here and here).  The Human Rights in Trauma Mental Health Lab (“Lab”) at Stanford University submitted an experts’ brief in the sentencing phase of the case.  (Bemba was sentenced to 18 years’ imprisonment). My colleague Dr. Daryn Reicherter of the Stanford University Medical School Department of Psychiatry and the Behavioral Sciences testified in the case. A redacted version of the brief is now available here.

The Lab is an interdisciplinary program based at Stanford University comprising members of the Department of Psychiatry and Behavioral Sciences, the School of Law (yours truly), the Handa Center for Human Rights & International Justice, and the Palo Alto University Clinical Psychology program.  The lab faculty and staff include treating academic psychiatrists, professors of medicine, private treating psychotherapists and social workers, human rights lawyers, law professors, and graduate and undergraduate students. Lab members have thus amassed considerable expertise in trauma mental health from a range of disciplinary perspectives.

Our submission was based on our review of the evidence and trial record, including the expert reports and trial testimony of Dr. André Tabo and Dr. Adeyinka M. Akinsulure-Smith, PhD.  We situated this evidence within a comprehensive and comparative literature review on the psycho-social impact of sexual violence and other forms of extreme trauma on individuals, their families, and their communities.  In addition, we reviewed testimony from victims in the Bemba trial in order to show a direct connection between the literature, the expert testimony, and actual events in the Central African Republic (CAR). In particular, we relied upon our knowledge of empirical research that links trauma exposure with psychophysiological and neurobiological outcomes, thereby elucidating the mechanisms by which sexual violence and other forms of extreme trauma give rise to the psychosocial outcomes documented in the trial record.  The Report was informed by the Lab’s long experience treating, representing, and working with victims of severe trauma in communities wracked by massive human rights violations.  On a more hopeful note, the brief also discussed the prospects for healing, notwithstanding these grave impacts.

The Bemba trial record is replete with harrowing evidence of the scale of SGBV in the CAR in the timeframe under consideration. Women who took part in Dr. Tabo’s survey of women who presented at Bangui National Hospital, for example, described a staggering range of sexual violence at the hands of the troops under Bemba’s command and control.  These victims had been raped in their homes, while running away, and/or on their way to a relative’s home. Some victims were the target of gang rape, systematically committed.  In many cases, family and community member leaders were raped or forced to witness the rape.  All told, out of the 512 women surveyed, 408 (80%) were sexually or physically assaulted.

As discussed in more detail in the expert brief, the psychiatric literature predicts very poor functional outcomes for victims of sexual assault.  The resulting myriad of individual consequences includes psychiatric disorders such as post-traumatic stress disorder (PTSD), depression, and anxiety. Outside of these named mental health diagnoses, individuals suffer from abject feelings of hopelessness, spiritual degradation, heightened suspiciousness, persistent confusion, and fear. Victims of trauma can see themselves as vulnerable, view the world as lacking meaning, and view themselves as lacking worth.

The brief ends on an uplifting note, notwithstanding this empirical and cross-cultural research on the impact of SGBV on the human psyche. While very few men and women who are the victims of sexual violence remain unaffected by this experience, it is possible for survivors to go on to lead meaningful lives after a sexual assault with appropriate treatment and psycho-social rehabilitation.  The concept of post-traumatic growth (PTG) captures experiences of positive change that occur as a result of highly challenging or traumatic stressful life events.  PTG is a concept with roots in ancient philosophy regarding the potentially transformative power of suffering, but it has also been supported in current empirical research.  This possibility for the victims of Bemba’s subordinates underscores the importance of the current phase of the case devoted to reparations.  This will be the Court’s second reparations order; the first was issued in the Lubanga case.

Sexual and gender-based violence under the Geneva Conventions: A New Commentary

The 1949 Geneva Conventions, A Commentary (A. Clapham, P. Gaeta, M. Sassòli, Eds. OUP, October 2015), is a mammoth effort to update the interpretation of the Conventions to take account of the significant developments in international law, especially international human rights and international criminal law, since the ICRC published Jean Pictet’s edited commentaries* in the middle of last century.

As the editors point out, since Pictet’s commentaries were published the international legal landscape has dramatically shifted. For one thing, the 1949 Conventions have been universally ratified and their application interpreted in hundreds of cases. International human rights law (IHRL) has developed enormously since the 1960s and its intersection with IHL is more commonly acknowledged. Recently concluded human rights treaties expressly address their application to situations of armed conflict (e.g., Istanbul Convention on violence against women; Convention on the Rights of Persons with Disabilities). International criminal law has become something of a growth industry since the 1990’s when the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC) were established with jurisdiction over IHL violations.

Since Pictet’s day, the worldview of sexual and gender-based violence (SGBV) and IHL has also radically changed. Due to the persistence of feminists over many decades, there is greater awareness of the prevalence of SGBV during armed conflict and a growing intolerance of it as an inevitable part of war. There have been numerous convictions for SGBV crimes as a violation of IHL (e.g., at ICTY, ICTR and ICC). In this context, SGBV has also evolved from its arcane conception in the Conventions as an attack against the honour of a female person, focussed on forced sexual intercourse, to encompass a wide range of acts against the sexual integrity of a person of any gender.

Patricia Viseur-Sellers and I wrote the chapter on protections from rape and other sexual violence and we start from the principle that humane treatment, the fundamental tenet of the Conventions regime, prohibits these acts against any person in every circumstance. We look in detail at Article 27, Fourth GC on civilians as the only article in the Conventions to refer expressly to sexual violence. It requires that female civilians “be protected against any attack on their honour, in particular against rape, forced prostitution and indecent assault”.

None of these terms are defined in the Conventions. We examine each one drawing on a range of sources, including international jurisprudence where available (e.g., Nuremberg, the International Military Tribunal for the Far East, the ICTY and ICTR), the Rome Statute and Elements of Crimes of the ICC, as well as leading critical feminist analysis, especially the work of J. Gardam & M. Jarvis in Women, Armed Conflict and International Law (Kluwer, 2001).

Much of the discussion focuses on a critical assessment of the imprecise and out-dated approach in Article 27(2) that protects women from sexual assault as “attacks on their honour” rather than against their person and sexual integrity. We agree with Gardam and Jarvis that IHL is a “thoroughly gendered system” and that equating female honour with chastity and modesty mischaracterises sexualised violence and perpetuates the discriminatory gender stereotype which sees women’s honour as belonging to her family and community, especially its male members. We point out that it also perpetuates the myth that sexual violence, especially rape, can only be committed against females. Continue reading