Valerie Oosterveld, Assistant Professor, Faculty of Law, University of Western Ontario. The author wishes to thank Margaret Martin for her comments and Robert Curtis for his research assistance. Any errors are the author’s own.

¹ Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Judgment (20 June 2007) (Special Court for Sierra Leone, Trial Chamber II) [AFRC Trial Judgment].

² Prosecutor v. Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Judgment (2 August 2007) (Special Court for Sierra Leone, Trial Chamber I) [CDF Trial Judgment].

³ Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-A, Judgment (22 February 2008) (Special Court for Sierra Leone, Appeals Chamber) [AFRC Appeals Judgment]; Prosecutor v. Moinina Fofana and Allieu Kondewa, SCSL-04-14-A, Judgment (28 May 2008) (Special Court for Sierra Leone, Appeals Chamber) [ CDFAppeals Judgment]. Note that the International Criminal Court (ICC) can also claim to be among the first international criminal bodies to have reviewed this war crime, albeit on a preliminary basis. Prosecutor v. Thomas Lubanga Dyilo, ICC-01 /04-01 /06, Decision on the Confirmation of Charges (29 January 2007) (ICC, Pre-Trial Chamber I) [Lubanga Confirmation of Charges]. Note also that there has been some discussion as to whether the Special Court for Sierra Leone can be classified as an “international” criminal tribunal or whether it is more accurately termed a “mixed,” “hybrid,” or “internationalized” criminal tribunal. See Daphna Shraga’s classiication of the Special Court as a “mixed” tribunal in Shraga, Daphna, “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” in Romano, Cesare P.R. et al., eds., Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (New York: Oxford University Press, 2004)Google Scholar, 15. Yet see the Special Court for Sierra Leone’s own Trial Chamber classification of this court as an international criminal tribunal. Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01 -I, Decision on Immunity from Jurisdiction ( 31 May 2004) at para. 42 (Special Court for Sierra Leone, Appeals Chamber). For the purposes of this article, the term “international criminal tribunal” is used to include the Special Court for Sierra Leone for ease of reference rather than to make a judgment about the proper categorization.

⁴ The ICC was to have considered the conscription, enlistment, and use of child soldiers in the Democratic Republic of the Congo in the case of Thomas Lubanga Dyilo. See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Warrant of Arrest (10 February 2006) (ICC, Pre-Trial Chamber I) [Lubanga Charges]. However, the Lubanga case is, at the time of writing, subject to a stay of proceedings. Prosecutor v. Thomas Lubanga Dyilo, ICC-01 /04-01 /06, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e), Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008 (13 June 2008) (ICC, Trial Chamber I). The ICC also has in custody two individuals, Germain Katanga and Mathieu Ngudjolo Chui, who are charged with the war crime of using children to participate actively in hostilities. See Prosecutor v. Katanga and Ngudjolo Chui, ICC-01 /04-01 /07, Prosecution’s Submission of Public Version of Document Containing the Charges (24 April 2008) Annex I at 32 (ICC, Pre-Trial Chamber I) [Katanga and Ngudjolo Charges]. The con-irmation of the charges hearing is scheduled to begin on 27 June 2008: Prosecutor v. Katanga and Ngudjolo Chui, ICC-01 /04-01 /07, Decision on the Defence Request for Postponement of the Confirmation Hearing (25 April 2008) (ICC, Pre-Trial Chamber I). The ICC recently unsealed another arrest warrant for an individual charged with conscription, enlistment, and use of child soldiers: Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Warrant of Arrest (22 August 2006) at 4 (ICC, Pre-Trial Chamber I). In the Uganda situation, the prosecutor has also charged the enlistment of child soldiers as a war crime. See, for example, Prosecutor v. Joseph Kony, ICC-02/04-01/05, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (27 September 2005) at 13 (count 5) and 15 (count 13) (ICC, Pre-Trial Chamber II) [Kony Charges]. While the ICC’s prosecutor has not charged the crime against humanity of forced marriage in the same manner as the Special Court, he has alleged acts of forced marriage (sometimes referred to only as sexual slavery). Katanga and Ngudjolo Charges, ibid. at paras. 62 and 89. Given the widespread use of forced marriage by the Lord’s Resistance Army, one might expect the evidence of sexual enslavement and perhaps rape to also relate to forced marriage, if the case is heard by the ICC. See, for example, Kony Charges, ibid. at 12—13 (counts 1—3).

⁵ AFRC Appeals Judgment, supra note 3 at para. 195.

⁶ In 2000, as a result of a request by the government of Sierra Leone, the United Nations Security Council asked the UN secretary-general to negotiate an agreement with the government of Sierra Leone to create a Special Court. Security Council Resolution 1315 on the Situation in Sierra Leone, UNSCOR, 54th Year, 4186th Mtg., UN Doc. S/Res/1315 (2000). This led to the adoption of an Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 (entered into force 12 April 2002). The Statute of the Special Court was annexed to this agreement.

⁷ Statute of the Special Court, supra note 6 at Article 1(1).

⁸ Ibid. at Articles 2, 3, 4, and 5. The prosecutor has chosen not to charge any of the individuals with crimes under Sierra Leonean law. Geneva Conventions, 12 August 1949, 1125 U.N.T.S. 3, <http://www1.umn.edu/humanrts/instree/y5pagc.htm>.

⁹ AFRC Trial Judgment, supra note 1 at para. 164.

¹⁰ Ibid. at para. 165.

¹¹ Ibid. at para. 164.

¹² Ibid. at paras. 166, 170, and 172.

¹³ Ibid. at paras. 168, 173, and 175.

¹⁴ Ibid. at paras. 178, 184, and 192.

¹⁵ Ibid. at paras. 202—6.

¹⁶ Ibid. at para. 207.

¹⁷ Ibid. at para. 208.

¹⁸ AFRC Appeals Judgment, supra note 3 at para. 17.

¹⁹ For example, Brima and Kamara served as public liaison oficers with supervisory responsibility over various government ministries. Ibid.

²⁰ Ibid. at para. 18.

²¹ Ibid.

²² AFRC Trial Judgment, supra note 1 at Annex A, paras. 1—3. See also Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-PT, Further Amended Consolidated Indictment (18 February 2005) (Special Court for Sierra Leone) [AFRC Indictment].

²³ CDF Trial Judgment, supra note 2 at para. 2.

²⁴ Ibid.

²⁵ Ibid. at para. 62.

²⁶ Ibid. at para. 80.

²⁷ Ibid. at para. 82.

²⁸ Ibid. at paras. 83—86.

²⁹ Ibid. at Annex F, paras. 2 —4. See also Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-03—14-I, Indictment (3 February 2004) (Special Court for Sierra Leone) [CDF Indictment].

³⁰ These attempts are outlined in detail later in this article beginning at note 134 and associated text.

³¹ CDF Trial Judgment, supra note 2 at paras. 75 and 81 .

³² Ibid. at paras. 293, 338—40, and 344.

³³ Norman died following routine surgery in Senegal. Special Court for Sierra Leone Press Release, “Special Court Indictee Sam Hinga Norman Dies in Dakar” (22 February 2007). On the dismissal, see CDF Trial Judgment, supra note 2 at paras. 4—8. Norman had testiied during the trial, and the Trial Chamber took his evidence into account in making factual indings. However, it did not pronounce on his guilt or innocence (ibid. at paras. 6, 7, and 274).

³⁴ Statute of the Special Court, supra note 6 at Article 4(c). While the Rome Statute of the International Criminal Court was the irst statute of an international criminal tribunal providing for individual criminal responsibility for this crime (under Articles 8(b)(xxvi) and 8(e)(vii)), the Special Court for Sierra Leone is the first such tribunal to prosecute this crime. Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered into force 1 July 2002) [Rome Statute].

³⁵ In the AFRC case, all three accused (Brima, Kamara, and Kanu) were convicted of this crime. AFRC Trial Judgment, supra note 1 at paras. 2113, 2117, and 2121. In the CDF case, one of the accused (Kondewa) was convicted of this crime. CDF Trial Judgment, supra note 2 at 291 (Disposition). The other CDF accused charged with this crime (Fofana) was not convicted on this count (ibid. at paras. 962—7).

³⁶ AFRC Appeals Judgment, supra note 3 at 106 (Disposition) and para. 306 (Kanu); and CDFAppeals Judgment, supra note 3 at para. 146.

³⁷ The Special Court’s rulings may also be influential in the case of Prosecutor v. Thomas Lubanga Dyilo, if the stay of proceedings is lifted. See Lubanga Charges and Katanga and Ngudjolo Charges, both at supra note 4.

³⁸ Prosecutor v. Norman, SCSL-04—14-AR72 (E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (31 May 2004) at para. 1 (Special Court for Sierra Leone, Appeals Chamber) [Norman Decision]. Statute of the Special Court, supra note 6.

³⁹ Norman Decision, supra note 38 at para. 53.

⁴⁰ AFRC Trial Judgment, supra note 1 at para. 728; and CDF Trial Judgment, supra note 2 at para. 197.

⁴¹ CDF Trial Judgment, supra note 2 at para. 197.

⁴² AFRC Appeals Judgment, supra note 3 at paras. 295—6; and CDF Appeals Judgment, supra note 3 at para. 139.

⁴³ However, note that the ICC’s Elements of Crimes are non-binding. Rome Statute, supra note 34 at Article 9. The Elements of Crimes are found in Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court, Addendum, Part II, Finalized Draft Text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000) [ICC Elements of Crimes].

⁴⁴ AFRC Trial Judgment, supra note 1 at para. 729. The AFRC trial judgment’s approach is slightly different from that found in the ICC’s Elements of Crimes document, which states in the fourth element: “The conduct took place in the context of and was associated with an armed conflict not of an international character.” ICC Elements of Crimes, supra note 43 at 46.

⁴⁵ Nolwenn Guibert and Tilman Blumenstock, “The First Judgment of the Special Court for Sierra Leone: A Missed Opportunity?” (2007) 6 Law and Practice of International Courts and Tribunals 367 at 381 .

⁴⁶ While the AFRC Trial Chamber essentially adopted the elements of crime associated with the Rome Statute of the ICC, perhaps Guibert and Blumenstock are concerned that these elements captured conscripting, enlistment, and use all in one set of elements. A discussion of the separation of the elements of conscription and enlistment from those of use by the CDF Trial Chamber follows later in this article. Or, alternatively, perhaps their concern lies not with the general elements per se, but with the deinitions adopted by the Trial Chamber and/or their application to the facts of the case. The dangers of adopting extremely detailed elements are examined in the discussion later of Itoe J.’s proposed categories in the CDF case.

⁴⁷ AFRC Trial Judgment, supra note 1 at paras. 729 and 734—36. The Trial Chamber noted the ICC’s approach of classifying conscription as a forcible recruitment and enlistment as voluntary recruitment. Lubanga Conirmation of Charges, supra note 3 at paras. 246—47.

⁴⁸ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14, Decision on Motion for Judgment of Acquittal Pursuant to Rule 98 (21 October 2005) at para. 124 (Special Court for Sierra Leone, Trial Chamber I). These elements were adopted not only in the AFRC Trial Judgment but also in Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Decision on Defence Motions for Judgment of Acquittal Pursuant to Rule 98 (31 March 2006) at para. 194 (Special Court for Sierra Leone, Trial Chamber I) [AFRCRule 98 Decision].

⁴⁹ CDF Trial Judgment, supra note 2 at para. 191 , notes that recruitment covers enlistment and conscription, and para. 192 refers to both voluntary and forced enlistment (with conscription seemingly the same as forced enlistment).

⁵⁰ Ibid. at para. 195.

⁵¹ Ibid. at para. 196.

⁵² Werle, Gerhard, Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005) at 334, para. 985.Google Scholar

⁵³ CDF Appeals Judgment, supra note 3 at paras. 139—41 . The Appeals Chamber may prefer the AFRC Trial Chamber’s approach to the elements because it appears to be more reflective of an international consensus. Note, however, that the ICC’s Elements of Crime are to be read in conjunction with Article 30 of the Rome Statute, which provides the overarching rule with respect to the mental elements. Rome Statute, supra note 34 at Article 30. The ICC’s application of Article 30 was not explicitly considered by the AFRC Trial Chamber in its proposed elements.

⁵⁴ AFRC Trial Judgment, supra note 1 at para. 730.

⁵⁵ Ibid. at para. 732.

⁵⁶ AFRC Appeals Judgment, supra note 3 at para. 293.

⁵⁷ Ibid. at paras. 296—97.

⁵⁸ Guibert and Blumenstock, supra note 45 at 381, citing Prosecutor v. Orić, IT-03—68, Judgment (30 June 2006) at para. 563 (International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber II).

⁵⁹ AFRC Trial Judgment, supra note 1 at para. 730.

⁶⁰ Ibid. at para. 731.

⁶¹ Ibid. at para. 1251 .

⁶² Under Article 38(3) of the Convention on the Rights of the Child, states parties shall refrain from recruiting any person who has not attained the age of ifteen years into their armed forces. Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990). (The Optional Protocol to this convention raises the age limit for voluntary and compulsory recruitment: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, GA Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, UN Doc. A/54/49 (2000) at arts. 2—3.) Article 77(2) of Additional Protocol I requires states parties to refrain from recruiting children under age ifteen into their armed forces and to take feasible measures to ensure that they do not take a direct part in hostilities, and Article 4(3)(c) of Additional Protocol II states that children who have not attained the age of ifteen years shall neither be recruited into the armed forces or groups nor allowed to take part in hostilities. Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts, 12 December 1977 1977, 1125 U.N.T.S. 3 (entered into force 7 December 1978) [Additional Protocol I] and Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 12 December 1977, 1125 U.N.T.S. 609 (entered into force 7 December 1978 ) [Additional Protocol II].

⁶³ AFRC Indictment, supra note 22 at count 12, para. 65. This has been criticized as “inartful drafting.” Guibert and Blumenstock, supra note 45 at 380.

⁶⁴ “While the definition of the crime of ‘conscripting’ or ‘enlisting’ connotes an administrative act of putting one’s name on a list and formal entry into the armed forces, the elements of crime under the proposed Statute of the Special Court are: (a) abduction, which in the case of the children of Sierra Leone was the original crime and is in itself a crime under common article 3 of the Geneva Conventions; (b) forced recruitment in the most general sense — administrative formalities, obviously, notwithstanding; and (c) transformation of the child into, and its use as, among other degrading uses, a ‘child-combatant.’” Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000) at para. 18.

⁶⁵ AFRC Trial Judgment, supra note 1 at para. 1276.

⁶⁶ AFRC Indictment, supra note 22 at count 13, paras. 66–73.

⁶⁷ AFRC Trial Judgment, supra note 1 at para. 1285.

⁶⁸ This was likely because of the different nature of the CDF troops, which were composed of initiated Kamajors as opposed to large numbers of abducted youth.

⁶⁹ CDF Indictment, supra note 29 at para. 29. The indictment stated that “the Civil Defence Forces did, throughout the Republic of Sierra Leone, initiate or enlist children under the age of 15 years into armed forces or groups.”

⁷⁰ CDF Trial Judgment, supra note 2 at para. 969.

⁷¹ Ibid. at para. 970.

⁷² Ibid.

⁷³ Ibid.

⁷⁴ Ibid.

⁷⁵ Ibid. at Annex A, para. 30 (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁷⁶ Ibid. at Annex A, paras. 27 and 30 (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁷⁷ Ibid. at Annex A, para. 31 (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁷⁸ CDF Appeals Judgment, supra note 3 at para. 144.

⁷⁹ Ibid., para. 142.

⁸⁰ Ibid., paras. 141 —45.

⁸¹ Ibid. , para. 141 .

⁸² Ibid. at paras. 11 and 14 (Partially Dissenting Opinion of Honourable Justice Renate Winter).

⁸³ Ibid. at para. 14 (Partially Dissenting Opinion of Honourable Justice Renate Winter).

⁸⁴ The AFRC Appeals Judgment did not address the issue of using children to participate actively in hostilities. The CDF Appeals Judgment did address this issue, in the context of the prosecutor’s appeal against the “not guilty” finding against Fofana and the Trial Chamber’s decision not to pronounce a verdict against Kondewa on using children. However, in its discussion, the Appeals Chamber did not elaborate its understanding of this crime. CDF Appeals Judgment, supra note 3 at paras. 115–35 and 147–53.

⁸⁵ AFRC Trial Judgment, supra note 1 at para. 736.

⁸⁶ Ibid. This approach was also adopted by the ICC in Lubanga Conirmation of Charges, supra note 3 at para. 261 .

⁸⁷ Report of the Preparatory Committee on the Establishment of an International Criminal Court, on Draft Statute and Draft Final Act, UN Doc. A/Conf.183/2/Add.1 (1998) at 25, note 12. Unlike the AFRC Trial Judgment, the entire quotation from the draft ICC Statute is included in the CDF Trial Judgment, supra note 2 at para. 193. This approach was adopted by the ICC in Lubanga Confirmation of Charges, supra note 3 at para. 262.

⁸⁸ AFRC Trial Judgment, supra note 1 at para. 737.

⁸⁹ Ibid. at para. 1278. The ICC does not go this far, providing the examples of using children to guard military objectives, such as the military quarters of the various units of the parties to the conflict, or to safeguard the physical safety of military commanders (using children as bodyguards). Lubanga Confirmation of Charges, supra note 3 at para. 263.

⁹⁰ Guibert and Blumenstock, supra note 45 at 381 .

⁹¹ Ibid.

⁹² As Guibert and Blumenstock state, “[m]ost forced labour in an armed conflict is likely to support military operations in some way” (ibid.).

⁹³ Ibid.

⁹⁴ CDF Trial Judgment, supra note 2 at Annex A, para. 10(1) (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mu-tanga Itoe).

⁹⁵ Ibid. at Annex A, para 10(2) (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁹⁶ Ibid. at Annex A, para 10(3) (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁹⁷ Ibid. at Annex A, para. 13 (Separate and Partially Dissenting Opinion Only on Count 8 of the Hon. Justice Benjamin Mutanga Itoe).

⁹⁸ Guibert and Blumenstock, supra note 45 at 381.

⁹⁹ Happold, Matthew, Child Soldiers in International Law (Manchester: Manchester University Press, 2005) at 101.Google Scholar

¹⁰⁰ Additional Protocols I and II, supra note 62 at Articles 77(2) and 4(3)(c) respectively.

¹⁰¹ John T. Holmes has noted that it can be argued that the ICC’s use of “participating actively” is broader than the term “direct part” found in international humanitarian law. Holmes, John T., “The Protection of Children’s Rights in the Statute of the International Criminal Court,” in Politi, Mauro and Nesi, Giuseppe, eds., The Rome Statute of the International Criminal Court: A Challenge to Impunity (Burlington, VT: Ashgate Publishing, 2001), 119 at 121.Google Scholar

¹⁰² Human Rights Watch, “We’ll Kill You If You Cry”: Sexual Violence in the Sierra Leone Conflict (New York: Human Rights Watch, 2003) at 42.

¹⁰³ AFRC Trial Judgment, supra note 1 at para. 711.

¹⁰⁴ Ibid. at paras. 31-32 (Partially Dissenting Opinion ofJustice Doherty on Count 7 (Sexual Slavery) and Count 8 (Forced Marriages)).

¹⁰⁵ Ibid. at para. 15 (Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to Judgment Pursuant to Rule 88(C)).

¹⁰⁶ Ibid. at paras. 48 and 51 (Partially Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (Forced Marriages)).

¹⁰⁷ Special Court for Sierra Leone Press Release, Office of the Prosecutor, “Prosecutor Welcomes Arraignment of RUF and AFRC Indictees on Charges Related to Forced Marriage” (17 May 2004). The press release states: “At the Special Court for Sierra Leone, acts of forced marriage will be prosecuted as an ‘inhumane act’ — a crime against humanity — for the first time in the history of international law.” The issue of forced marriage has been mentioned within the International Criminal Tribunal for Rwanda (ICTR) but has never been charged as such. See, for example, Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-T, Judgment and Sentence (28 April 2005) at paras. 307-23 (ICTR, Trial Chamber III). Sebutinde J. also characterized the ICTY’s leading case on sexual enslavement — Prosecutor v. Dragoljub Kunarac — as an example of a forced marriage case not named as such. AFRC Trial Judgment, supra note 1 at note 3453 (at Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to Judgment Pursuant to Rule 88(C)).

¹⁰⁸ Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-PT, Trial Chamber Decision on Prosecution Request for Leave to Amend the Indictment (6 May 2004) at para. 58 (Special Court for Sierra Leone, Trial Chamber) [ AFRC Indictment Amendment].

¹⁰⁹ Ibid. at paras. 50-51.

¹¹⁰ In its inal trial brief, the prosecution highlighted that the “wives” were expected not only to provide sexual gratiication to their “husbands” but also to fulil many other roles as well — cooks, launderers, child carers, and so on. However, it signiicantly muddied its own argument by then focusing strongly on the sexual aspect of forced marriage, sometimes even writing the crime as “sexual slavery and/or forced marriage.” Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-T, Prosecutor Final Trial Brief (6 December 2006) at paras. 1868-918. The AFRC Appeals Chamber ( AFRC Appeals Judgment, supra note 3 at para. 181 ) scolded the prosecutor for his classiication of forced marriage under the “Sexual Violence” heading in the indictment: “This categorization of forced marriages explains, but does not justify, the classiication by the Trial Chamber of forced marriage as ‘sexual violence.’”

¹¹¹ AFRC Rule 98 Decision, supra note 48 at para. 14 (Separate Concurring Opinion of the Hon. Justice Julia Sebutinde).

¹¹² Karen Engle and Katherine Franke have identified this collapsing of gender into sex within international criminal tribunals. Karen Engle, “Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina” (2005) 99 A.J.I.L. 778 at 815; and Katherine M. Franke, “Gendered Subjects of Transitional Justice” (2006) 15 Colum. J. Gender & L. 813 at 822–23.

¹¹³ AFRC Trial Judgment, supra note 1 at para. 714.

¹¹⁴ Ibid. at para. 713.

¹¹⁵ Ibid.

¹¹⁶ Ibid. at para. 697.

¹¹⁷ Ibid. at para. 707. The majority judges argued that the Rome Statute, like the Statute of the Special Court for Sierra Leone, separates gender-based crimes against humanity into an isolated paragraph. This is incorrect. The Rome Statute lists the crime of gender-based persecution within a separate crimes against humanity provision. Rome Statute, supra note 34 at Article 7(1)(h). In addition, the ICC’s Elements of Crimes document indicates that gendered considerations exist within non-sexual crimes. ICC Elements of Crimes, supra note 43 at 6, note 3 (genocide by causing serious bodily or mental harm) and 10, note 11 (the crime against humanity of enslavement).

¹¹⁸ AFRC Trial Judgment, supra note 1 at para. 710.

¹¹⁹ Ibid. at paras. 92-95, 696, 714, and 719. Given the lower threshold required for war crimes, and the lack of precision related to the term outrages upon personal dignity, it is fair to be concerned about this telescoping of a complex, multifaceted crime such as forced marriage into a crime against humanity of sexual violence into a war crime of outrages upon personal dignity.

¹²⁰ The need to name a harm as a whole is behind the inclusion of the crime of sexual slavery in the Rome Statute, supra note 34. In this case, delegates negotiating the statute acknowledged that the crime against humanity of enslavement could cover slavery involving sexual acts (as was later demonstrated in the ICTY’s Kunarac judgments) but felt that it was important to identify sexual slavery as a separate harm. Valerie Oosterveld, “Sexual Slavery and the International Criminal Court: Advancing International Law” (2004) 25 Michigan J. Int’l L. 605 at 622–23.

¹²¹ It is instructive to note here that the Sierra Leone Truth and Reconciliation Commission also considered forced marriage as the same as sexual slavery. Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, volume 1 (Accra, Ghana: Graphic Packaging, 2004) at para. 299.

¹²² For example, the nature of the act of extermination includes the act of murder. This does not take away from the fact that murder is also listed as a separate prohibited crime against humanity act. Also under crimes against humanity, acts of torture or enslavement may also include acts of rape.

¹²³ This was recognized by the AFRC Appeals Chamber, when it noted that the jurisprudence of the ICTY and ICTR recognize a wide range of criminal acts, including gender-based and sexual crimes, as “other inhumane acts.” Examples given included sexual violence perpetrated upon dead human bodies, forced undressing of women and marching them in public, and forcing women to perform exercises naked. AFRC Appeals Judgment, supra note 3 at para 184 and related footnotes.

¹²⁴ Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-A, Appeal Brief of the Prosecution (13 September 2007) at 602-27.

¹²⁵ AFRC Appeals Judgment, supra note 3 at para. 195.

¹²⁶ Ibid. at paras. 185–86.

¹²⁷ Ibid. at para. 190.

¹²⁸ Ibid. at para. 201.

¹²⁹ Ibid. at paras. 195, 196, and 199.

¹³⁰ Ibid. at para. 200.

¹³¹ Ibid. at para. 202.

¹³² See Binaifer Nowrojee, “Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone’s Rape Victims” (2005) 18 Harvard Hum. Rts. J. 85 at 102 . Sebutinde J. raises the interesting question in her separate concurring opinion to the AFRC Trial Judgment, as to how stereotyped, gender-speciic forms of labour in forced marriage during conflict mimic stereotyped peacetime expectations of free female labour during peacetime and how this puts women at great risk for abduction and violence. AFRC Trial Judgment, supra note 1 at para. 10 (Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to Judgment Pursuant to Rule 88(C)).

¹³³ For example, the Sierra Leone Truth and Reconciliation Commission found that all of the armed perpetrator groupings were responsible for forced marriage (which the commission equated with sexual slavery at para. 299) of women and girls. Sierra Leone Truth and Reconciliation Commission, supra note 121 at para. 311 . As well, Staggs Kelsall and Stepakoff have recorded cases in which female witnesses were prepared to testify about forced marriage to the Special Court in the CDF case but were prevented from doing so as a result of the Trial Chamber decisions outlined later in this article. Michelle Staggs Kelsall and Shanee Stepakoff, “’When We Wanted to Talk about Rape’: Silencing Sexual Violence at the Special Court for Sierra Leone” (2007) 1 Int’l J. Transitional Justice 355 at 364 (witness TF2-187), 367 (witnesses TF2-188 and TF2-189), 369 (witness TF2-135), and 370 (witness TF2-133).

¹³⁴ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Prosecution Request to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (9 February 2004) (Special Court for Sierra Leone, Trial Chamber). The original indictment against Norman was confirmed on 7 March 2003. The original indictments against Fofana and Kondewa were confirmed on 26 June 2003. These indictments were combined into a consolidated indictment on 5 March 2004.

¹³⁵ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Decision on Prosecution Request for Leave to Amend the Indictment ( 20 May 2004) at paras. 10 and 21 (Special Court for Sierra Leone, Trial Chamber) [CDF 20 May 2004 Majority Decision]. This article will refer to these crimes as gender-based crimes, although the judges in the CDF case used varying terminology (such as gender crimes, gender-based crimes, sexual violence crimes, rape crimes, and so on) throughout their decisions.

¹³⁶ Prosecutorv. Issa Sesay, Morris Kallon and Augustine Gbao, SCSL-04-15-PT, Decision on Prosecution Request for Leave to Amend the Indictment (6 May 2004) (Special Court for Sierra Leone, Trial Chamber) [RUF Amendment Indictment]; and Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, SCSL-04-16-PT, Decision on Prosecution Request for Leave to Amend the Indictment (6 May 2004) (Special Court for Sierra Leone, Trial Chamber).

¹³⁷ CDF 20 May 2004 Majority Decision, supra note 135 at paras. 42 and 48–86.

¹³⁸ Ibid. at para. 57.

¹³⁹ Ibid.

¹⁴⁰ Ibid. at para. 84.

¹⁴¹ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Dissenting Opinion of Judge Pierre Boutet on the Decision on Prosecution Request for Leave to Amend the Indictment (31 May 2004) at paras. 26 and 34 (Special Court for Sierra Leone, Trial Chamber).

¹⁴² Staggs Kelsall and Stepakoff, supra note 133 at 360.

¹⁴³ CDF 20 May 2004 Majority Decision, supra note 135 at para. 53.

¹⁴⁴ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-PT, Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Sam Hinga Norman, Moinina Fofana and Allieu Kondewa (2 June 2004) at para. 15, as cited in Staggs Kelsall and Stepakoff, supra note 133 at 361 , note 27.

¹⁴⁵ CDF 20 May 2004 Majority Decision, supra note 135 at para. 83.

¹⁴⁶ Staggs Kelsall and Stepakoff, supra note 133 at 360-61 . On the prosecutor’s obligation to prosecute gender-based crimes, see the Statute of the Special Court, supra note 6 at Article 15(4), under which the prosecutor must give due consideration to employing staff experienced in investigating and prosecuting gender-related crimes.

¹⁴⁷ Staggs Kelsall and Stepakoff, supra note 133 at 361.

¹⁴⁸ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (2 August 2004) at paras. 4 and 6 (Special Court for Sierra Leone, Trial Chamber).

¹⁴⁹ Ibid. at paras. 8 and 16.

¹⁵⁰ Ibid. at paras. 36-38.

¹⁵¹ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Dissenting Opinion of Judge Pierre Boutet on Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (5 August 2004) at paras. 2, 18, 20, 22, and 25 (Special Court for Sierra Leone, Trial Chamber). Justice Boutet argued that such a double analysis was not permitted, that the “exceptional circumstances” test was met, and that the majority incorrectly applied the doctrine of estoppel.

¹⁵² Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Decision on Prosecution Appeal against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal (17 January 2005) at para. 44 (Special Court for Sierra Leone, Trial Chamber).

¹⁵³ Kendall and Staggs outline this increasing reluctance beginning in November 2004, emerging more clearly in March 2005 and solidifying in May and June 2005. Kendall, Sara and Staggs, Michelle, Silencing Sexual Violence: Recent Developments in the CDF Case at the Special Court for Sierra Leone (Berkeley, CA: U.C. Berkeley War Crimes Studies Center, 2005) at <http://socrates.berkeley.edu/~warcrimes/Papers/Silencing_Sexual_Violence.pdf>.Google Scholar

¹⁵⁴ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence (24 May 2005) at paras. 1-3, 5, and 9 (Special Court for Sierra Leone, Trial Chamber) [CDF 24 May 2005 Thompson Majority Decision].

¹⁵⁵ Ibid.

¹⁵⁶ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Decision on the Urgent Prosecution Motion Filed on the 15th of February 2005 for a Ruling on the Admissibility of Evidence (23 May 2005) (Special Court for Sierra Leone, Trial Chamber).

¹⁵⁷ CDF 24 May 2005 Thompson Majority Decision, supra note 154.

¹⁵⁸ Kendall and Staggs, supra note 153 at 4, note 5, citing Prosecution Supplementary Pretrial Brief (22 April 2004).

¹⁵⁹ Staggs Kelsall and Stepakoff, supra note 133 at 367.

¹⁶⁰ Ibid.

¹⁶¹ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (3 June 2005) at 14, lines 3-5 and 27-29.

¹⁶² Ibid. at 17, lines 21 and 23-24 and 19, lines 2-8. Justice Boutet dissented at 19, lines 9-17. The majority ruling did not consider the test for exclusion under Rule 95 of the Rules of Procedure and Evidence, which is whether such evidence would bring the administration ofjustice into serious disrepute. This ruling also does not seem to accord with the approach of the same Trial Chamber on other evidentiary matters. For example, Boutet J. notes that the Trial Chamber normally determines whether the evidence is relevant prior to admitting it and the probative value of the evidence is determined at a later stage. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Transcript (1 June 2005) at 3, lines 5–27.

¹⁶³ CDF 24 May 2005 Thompson Majority Decision, supra note 154 at paras. 17 and 19.

¹⁶⁴ Ibid. at para. 16.

¹⁶⁵ Ibid. at para. 19(iii). This is despite the indings in other international criminal tribunals and, later, the AFRC Appeals Judgment that gender-based acts may serve as the actus reus for other crimes, including within the category of “other inhumane acts.” AFRC Appeals Judgment, supra note 3 at para. 184, and relevant notes canvassing thejurisprudence of the ICTY and ICTR. Unfortunately, it was this Thompson Majority Decision that influenced the majority of the AFRC Trial Chamber to isolate gender-based crimes in the same way.

¹⁶⁶ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Separate Concurring Opinion of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence (24 May 2005) at para. 78 (vi) (Special Court for Sierra Leone, Trial Chamber).

¹⁶⁷ For example, the evidence had the potential of “staining [the] mind of the Judge with an impression that adversely affects his clean conscience towards all parties, and particularly, towards the victim of that evidence which is tendered, to the extent that it leaves in the mind of the Judge, an indelible scar of bias which could make him ill disposed to the cause of the victim of the said evidence as a result of which an injustice could be occasioned to that party who after all, may be innocent or have a just cause, and who, but for the admission of that contested evidence, should ordinarily have had the benefit of the judicial balance tilting in his favour.” Ibid. at para. 64. Note Itoe J.’s use of the word “victim” to describe the accused in this matter.

¹⁶⁸ Staggs Kelsall and Stepakoff, supra note 133 at 368. They continue: “[W]ith due respect, one hopes that professionally trained judges at war crimes trials are able to be more discerning and rather less impressionable regarding the subject matter of the evidence than these sentiments would seem to suggest” (ibid.).

¹⁶⁹ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Dissenting Opinion of Justice Pierre Boutet on decision on prosecution Motion for a Ruling on the Admissibility of Evidence (24 May 2005) at para. 6 (Special Court for Sierra Leone, Trial Chamber). He also outlined jurispru-dence of the ICTY and ICTR at paras. 7-9, which stipulates that evidence of sexual violence may constitute offences of inhumane acts as a crime against humanity and the war crime of cruel treatment. He pointed out, at para. 33, that evidence of sexual violence is no different than evidence of any other act of violence for the purposes of constituting offences within the existing counts of the indictment.

¹⁷⁰ Staggs Kelsall and Stepakoff, supra note 133 at 363.

¹⁷¹ Ibid.

¹⁷² Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Majority Decision on Request for Leave to Appeal Decision on Prosecution Motion for a Ruling on Admissibility of Evidence (9 December 2005 as corrected 23 January 2006) at paras. 9-11 (Special Court for Sierra Leone, Trial Chamber).

¹⁷³ Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, SCSL-04-14-T, Dissenting Opinion of Justice Pierre Boutet on the Majority Decision on Request for Leave to Appeal Decision on Prosecution Motion for a Ruling on Admissibility of Evidence (9 December 2005) at paras. 9-12 (Special Court for Sierra Leone, Trial Chamber).

¹⁷⁴ CDF Trial Judgment, supra note 2 at paras. 423, 533, 561, 565, and 653. Evidence relating to sexual violence directed against men was seemingly not subjected to similar scrutiny and describes the Kamajors’ plan to put pepper on the genitals of two male prisoners (at para. 496) and describes pepper rubbed into the genitals of another male prisoner (at para. 520).

¹⁷⁵ For a detailed description of sexual violence in CDF-held areas, see Human Rights Watch, supra note 102 at 27-28 and 46-48. For allegations of rape committed by or under the control of certain accused, see Kendall and Staggs, supra note 153 at 3.

¹⁷⁶ CDF Trial Judgment, supra note 2 at para. 625.

¹⁷⁷ Kendall and Staggs, supra note 153 at 2, 3, note 4, and 17, note 79. Similar arguments could be made with respect to the evidence that witnesses TF2-187, TF2-134, TF2-108, TF2-109, TF2-135, and TF2-189 were to have introduced (ibid. at 3, 4, and 17).

¹⁷⁸ This lack of context is the result of what Staggs Kelsall and Stepakoff refer to as “silencing” throughout their article, supra note 133. In addition, it raises the issue as to whether the Special Court is fulilling the expectations set out by the Security Council in Resolution 1315, supra note 6 at preamble, that the court would contribute to the process of national reconciliation and to the restoration and maintenance of peace, bringing justice and ensuring lasting peace, given the views of the victim-witnesses expressed in Staggs Kelsall and Stepakoff’s article and the fact that this judgment could perpetuate the myth that gender-based violence did not happen within the CDF.

¹⁷⁹ CDF Appeals Judgment, supra note 3 at paras. 410-27 and 428-51. The Appeals Chamber majority reasoned that, once the Trial Chamber had rejected his request to amend the indictment, the prosecutor could have brought a separate, second indictment (at para. 426). In her dissent, Winter J. also strongly refuted almost every aspect of the Trial Chamber majority’s decisions related to the denial of the prosecutor’s request to amend the indictment. CDF Appeals Judgment, supra note 3 at paras. 64-89 (Partially Dissenting Opinion of Honourable Justice Renate Winter).

¹⁸⁰ CDF Appeals Judgment, supra note 3 at paras. 443-45. Note that, throughout this part, the Appeals Chamber seems to use the term “sexual violence” to include forced marriage, despite its sensitivity to the distinction between the two demonstrated in the AFRC Appeals Judgment.

¹⁸¹ Ibid. at para. 446.

¹⁸² Ibid. at para. 450 (referring to the backdated 24 May 2005 majority decision).

¹⁸³ Ibid. at para. 446.

¹⁸⁴ Ibid. at para. 451.

¹⁸⁵ There is an additional way in which these two crimes may be interlinked. The United Nations Special Representative of the Secretary-General for Children and Armed Conflict has argued to the ICC that the war crime of using children to participate actively in hostilities can include subjecting girls and women to forced marriage. Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/ 06, Submission of the Observations of the Special Representative of the Secretary-General of the United Nations for Children and Armed Conflict pursuant to Rule 103 of the Rules of Procedure and Evidence (18 March 2008) at para. 22 (International Criminal Court, Trial Chamber I).

¹⁸⁶ RUF Indictment Amendment, supra note 136. Charles Taylor is not explicitly charged with forced marriage as a crime against humanity (other inhumane act). However, he is charged with the crimes against humanity of rape and sexual slavery and the war crime of outrages upon personal dignity. Prosecutor v. Charles Taylor, SCSL-03-01 -PT, Prosecution’s Second Amended Indictment ( 29 May 2007) at counts 4-6 and paras. 14-17. Even so, evidence has arisen in his trial with respect to forced marriage. See, for example, Prosecutor v. Charles Taylor, SCSL-03-01 -PT, Transcript (23 April 2008) at 8392 (line 23)-8395 (to line 19) on “jungle wives” in Benguema.

¹⁸⁷ Kony Charges, supra note 4.

¹⁸⁸ In a study by McKay and Mazurana, approximately half of the girls interviewed reported serving as “wives” during their time in captivity with the Lord’s Resistance Army. Mckay, Susan and Mazurana, Dyan, Where Are the Girls? Girls in Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives during and after War (Montreal: Rights and Democracy, 2004) at 73.Google Scholar See also Human Rights Watch, Abducted and Abused: Renewed Conflict in Northern Uganda (New York: Human Rights Watch, 2003) at 28–31.

¹⁸⁹ See Katanga and Ngudjolo Charges, supra note 4 at para. 89. “Some women, who were captured at Bogoro and spared because they hid their ethnicity, were raped and forcibly taken to military camps. Once there, they were sometimes given as a “wife” to their captors or kept in the camp’s prison, which was a hole dug in the ground.”