SOAS Research Online

Abstract

This exchange from Trial Chamber I of the Special Court for Sierra Leone does not exist outside the notes of court observers who were present at the public session when it transpired; it has since been expunged from the official court record. The details of this allegation - that the witness was forced to become the “wife” of one of the men on trial - will never be explored, tested or weighed as evidence against the accused. It forms part of a silent group of sexual violence allegations that have been excluded from witness testimony following a series of rulings in one of the court’s three cases currently at trial. The reasoned opinion of Justice Bankole Thompson of Sierra Leone and Justice Benjamin Mutanga Itoe of Cameroon forming the basis of these rulings was only issued late last week, one month after the evidence was initially excluded by an unreasoned decision; Justice Pierre Boutet of Canada issued a separate dissenting opinion. These rulings and the majority decision upon which they were based created a slippery slope: any evidence that directly or even remotely relates to the sexual act was deemed inadmissible. As a result of this and other decisions, all considerations of serious allegations of systematic sexual violence on the part of one of the main parties to the Sierra Leone conflict has been excluded by the Special Court. The Chamber justified excluding this testimony on the grounds that the acts in question lay within the realm of “forbidden evidentiary territory”, relying on a narrow interpretation of admissibility that contrasts dramatically with the wide ambit of discretion afforded to the judges. The rules of evidence governing the court’s proceedings enable the bench to admit all relevant evidence; its weight and probative value will then be determined at a later stage. In this case, the evidence was excluded on the grounds that rape and sexual violence were not charged as specific offences under the indictment. This paper traverses the history of the exclusion of sexual violence evidence in the trial against three members of the Civilian Defence Force, from its initial omissions in the indictments against the accused to its most recent relegation to the realm of forbidden evidentiary territory. It looks at how an initial oversight by the prosecution became the premise upon which the majority of the bench in Trial Chamber I adopted a language of exclusion: all testimony “tainted” by sexual violence was effectively silenced. As a result, nine witnesses in the CDF trial were unable to tell their full stories. This paper argues that they should have been permitted to speak.