Forced Marriage: Slavery Qua Enslavement and the Civil War in Sierra Leone

Jean Allain

In Chapters Three and Six the legal parameters of slavery and enslavement have been set out. In substance, the definition of both such practices focuses on the exercise of powers attaching to the right of ownership. Thus far, the consideration of the parameters of what is, in essence, the same definition in legal terms, has transpired with limited space devoted to the application of that definition to a particular set of circumstances. This Chapter redresses the balance by considering a practice which, while not being termed enslavement or slavery nevertheless, in substance, manifests the exercise of powers attach- ing the right of ownership. While it should be emphasised that no matter what it might be labelled, a given instance will not constitute enslavement or slavery unless it meets the definitional threshold as set out in the relevant interna- tional instrument. In other words, call it what you will, be it: child soldiering, prostitution, serfdom, or servitude, it is not enslavement or slavery unless the facts are such that in substance a person exercises any or all of the powers at- taching to the right of ownership over another person. While keeping this proviso close at hand—that an authoritative determi- nation of the existence of a case of slavery or enslavement will require an as- sessment of the substance of the specific facts of a given case—what will be demonstrated in this Chapter is that the phenomenon of so—called ‘forced marriage’ as it has transpired in the context of the Civil War in Sierra Leone constitutes slavery, thus meeting the definitional threshold of enslavement as set out, for instance, in the Statute of the International Criminal Court. While the focus of this Chapter is Sierra Leone, it is clear that because of the unique circumstances in the African context, this form of enslavement has transpired in other conflicts on the Continent. Those circumstances are two-fold: first, the lack of military logistics surrounding soldiers in the field that move them to enslave women so as to provide basic services and amenities to free them to fight. Thus, these women act as porters, they cook, wash, and maintain a

Source: Allain, Jean, “Forced Marriage: Slavery Qua Enslavement and the Civil War in Sierra Leone,” in Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking, Leiden & Boston: Brill, 2013, 293–324.

© koninklijke brill nv, leiden, ���8 | doi ��.��63/9789004346611_053 1628 Allain shelter. Yet, these are but the banal elements of their fate, as they are subject to a number of international crimes including: sexual violence, to rape and forced pregnancy; but also the near constant threat of murder, torture, mutila- tion, cruel treatment, and lesser violence. Second, the persistence in time of peace of forced marriages which, though in their most blatant manifestations are abolished by the 1956 Supplementary Convention, have been allowed to persist in certain regions of Africa which has meant that forced marriages has been visited upon women in its mutated form, as enslavement/slavery in the guise of marriage. The preamble of the 1926 Slavery Convention speaks of a desire “to com- plete and extend the work accomplished” at the 1890 Brussels Conference, which was not only to suppress the slave trade by land and sea, but also to secure “the complete suppression of slavery in all its forms”. In considering slavery within the confines of the 1926 definition the UN Secretary-General ac- knowledged in a 1953 Report that a practice need not be termed ‘slavery’ for it to be—in law—slavery:

It would appear from a study of the International Convention of 1926, and of the preparatory work leading to its adoption, that the obligations of the Parties thereto extend to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practice”.1

‘Forced marriage’ in times of armed conflict in the African context is a case in point; though not normally designated as slavery, in substance such practice constitutes slavery as in fact there is the exercise of the powers attaching to the right of ownership. As we shall see, in Sierra Leone, such ‘forced marriages’ did not entail the sale of women, or exploitation of their labour for financial benefit; the exercise of the powers attaching to the right of ownership did not take place in the public sphere. That is to say: no transaction or exchange trans- pired between the ‘owner’ and a third party. However, this does not mean that slavery did not take place. Instead the benefits which were accrued were in the main, in the private sphere, between the man who enslaved and his female vic- tim. In fact, what did transpire was that these women where ‘possessed’ in the property sense of the term. Having lost their personal liberty to their captives, they were then used, as one would a thing, their owners deriving both benefit

1 United Nations, Economic and Social Council, Report of the Secretary-General on Slavery, the Slave Trade, and Other Forms of Servitude, U.N. Doc. E/2357, 17 January 1953, p. 27.