Gender-based violence has historically been overlooked in international criminal law, reflecting a broader neglect of crimes specifically directed against women in legal frameworks.1 Progress was achieved during the establishment of the International Criminal Tribunals for the Former Yugoslavia (ICTY), during which convictions for rape were recognised as a crime against humanity for the first time in Europe.2 With the adoption of the Rome Statute in 2002, crimes such as rape, sexual slavery, forced prostitution, forced pregnancy, and forced sterilisation were formally acknowledged for the first time within the international legal framework under Article 7(g).3
Despite this progress, the legal treatment of forced marriage as a crime against humanity remains contentious. Forced marriage has been particularly prevalent in armed conflicts such as those in Sierra Leone, Cambodia, and Uganda.4 Cases adjudicated by the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC) have demonstrated growing recognition of forced marriage as a distinct crime.5 However, scholars remain divided on its proper classification within the Rome Statute. Some advocate its inclusion under sexual slavery (Article 7(g)), while others propose it be categorised as "other inhumane acts" (Article 7(k)).6 Proper classification is essential to ensure justice for victims and uphold the principle of legal certainty in international law.7 Therefore, this article seeks to evaluate the most appropriate classification for forced marriage under international criminal law.
What is forced marriage?
The Universal Declaration of Human Rights (UDHR) asserts in Article 16(2) that "Marriage shall be entered into only with the free and full consent of the intending spouses."8In contrast, forced marriage occurs when an individual is compelled into a conjugal union through coercion, threats, or manipulation. Accordingly, the ICC defines forced marriage as “a situation in which a person is compelled to enter into a conjugal union with another person by the use of physical or psychological force, or threat of force, or by taking advantage of a coercive environment.”9 This coercion often involves psychological abuse, physical violence, sexual abuse, abduction, or combinations of these methods. Unlike consensual unions, forced marriage deprives individuals of autonomy and agency, stripping them of the ability to make decisions about their own lives. For example, victims of forced marriage may be isolated from their families and communities, denied the right to education and employment, and subjected to constant control over their daily activities.10
In conflict settings, such as the civil war in Sierra Leone, which will be discussed shortly, forced marriage has frequently been used as a weapon of war, serving multiple purposes. First, it acts as a demonstration of power and dominance, often humiliating both the victims and their partners. Second, forced marriage has been used as a genocidal tool, controlling reproduction along ethnic, racial, or religious lines. For example, in some societies, offspring inherit the ethnicity of the father, enabling perpetrators to manipulate population demographics through forced impregnation. The consequences for victims are devastating. They endure severe physical and emotional trauma, often facing ostracism within their communities, thereby negatively impacting their re-integration.11
In this context, it is crucial to differentiate between arranged and forced marriages. In arranged marriages, families or cultural traditions may play a significant role in selecting a partner, but the marriage itself proceeds with the consent of both parties. Forced marriage, in contrast, occurs without such consent, often under duress or through outright coercion.12
Forced marriage as an international crime
To assess whether forced marriage fits better within the category of “sexual slavery” or “other inhumane acts”, it is essential to consider the ICC’s four elements for a crime to qualify as sexual slavery.13
First, for a crime to qualify as sexual slavery, it must involve the perpetrator exercising powers similar to ownership over a person. In the case of forced marriage, this is evident, as victims are coerced into a conjugal relationship and are unable to leave or escape the control of the perpetrator. The perpetrators often impose strict conditions that limit the freedom of the victims, as is also reflected in the ICC’s definition of forced marriage.14
Second, sexual slavery involves the perpetrator compelling the victim to engage in acts of a sexual nature. While forced marriage is not defined solely by its sexual component, it frequently entails rape and other forms of sexual violence. However, research indicates that women and girls coerced into forced marriages may experience a form of protection from sexual violence by individuals other than their "husbands."15 Beyond sexual violence, victims of forced marriage are often subjected to forced labour. This combination of sexual, psychological and physical exploitation illustrates how forced marriage shares elements with sexual slavery while also encompassing additional forms of abuse.
The third and fourth elements of sexual slavery involve the same requirements as any other crime against humanity, Namely, that the conduct must be part of a widespread or systematic attack directed against a civilian population and the perpetrator’s awareness or intent of this conduct being part of such an attack.
While this illustrates that forced marriage certainly satisfies elements of sexual slavery, it is also fundamentally distinct, especially considering the differing elements of the actus reus. Unlike sexual slavery, forced marriage entails the imposition of marital roles, including exclusivity, subjugation, and forced labour, making it a multi-dimensional crime.16 As noted by Frulli (2008) “the element of ‘forced conjugality’ - which implies the expectation of a whole variety of sexual and nonsexual tasks to be performed - actually seems to be the distinctive feature of this heinous criminal conduct”.17 Additionally, it is important to emphasise that forced marriage constitutes a degradation of a deeply symbolic social and religious institution in many cultures.18 These unique features of the crime of forced marriage argue for its classification as “other inhumane acts” to ensure compliance with the principle of nullum crimen sine lege (no crime without law).19In this way, categorising forced marriage separately under the category of “other inhumane acts” would lead to more sophisticated legal definitions. To highlight these unique characteristics, the following paragraph will examine their practical application in the AFRC case before the Special Court for Sierra Leone.
Forced marriage during the armed conflict in Sierra Leone
The civil war in Sierra Leone, which began in March 1991, provides a stark example of forced marriage as a tool of war. Rebel groups, including the Revolutionary United Front (RUF) and the AFRC, waged a conflict marked by widespread abduction of women and girls. Victims were coerced into forced marriages, later labelled as "bush wives" through declarations such as “You are my wife” (yu na mi wef).20 Since child soldiers were commonly used by all parties to this conflict, forced marriages frequently involved male combatants taking girl soldiers as their "wives."21 The most notable case in which forced marriage was dealt with during the trials under the Special Court of Sierra Leone was the AFRC Case.
In this case, the prosecutors categorised forced marriage as “other inhumane acts” under Article 7(k) of the Rome Statute, arguing that it involved unique elements beyond sexual slavery.22 However, the Trial Chamber initially determined that forced marriage should be subsumed under the category of sexual slavery, as they held that there was no evidence capable of establishing the elements of a non-sexual crime.23 This decision was later overturned on appeal, with the Appeals Chamber acknowledging the distinct characteristics of forced marriage, including its imposition of a conjugal relationship with attendant roles and duties.24
The Appeals Chamber noted that while there are similarities between sexual slavery and forced marriage, such as non-consensual sex and deprivation of liberty, the two crimes are distinct. First, it highlighted that forced marriage involves coercing a person into a conjugal relationship through force or the threat of force, causing significant physical or psychological harm to the victim. This aspect aligned with the crime of "other inhumane acts." Second, the Chamber pointed out that, unlike sexual slavery, forced marriage creates an exclusive relationship between the "husband" and "wife," which can lead to consequences if the exclusivity is violated.25 The concept of exclusivity was crucial, as it not only differentiates forced marriage from sexual slavery but also reinforces the broader control the perpetrator exerts over the victim.26
Conclusion
Forced marriage is a complex and multi-layered crime that transcends the narrow confines of the crime of sexual slavery. Its unique characteristics, including the imposition of conjugal roles, forced labour, and exclusivity, warrant independent recognition under international law. As demonstrated in the case of Sierra Leone, failure to properly classify forced marriage can result in overlooking its distinct harms and denying justice to victims. While the Rome Statute has made progress in addressing gender-based violence, further refinement is needed to address crimes like forced marriage adequately. Classifying forced marriage as “other
1 d'Aoust, M. A. (2017). Sexual and gender-based violence in international criminal law: A feminist assessment of the Bemba case. International Criminal Law Review, 17(1), 208–238.
2Adams, A. (2018). The legacy of the international criminal tribunals for the former Yugoslavia and Rwanda and their contribution to the crime of rape. The European Journal of International Law, 29(3), 749–769. https://doi.org/10.1093/ejil/chy043
3International Criminal Court. (1998). Rome Statute of the International Criminal Court. 4 Haenen, I. (2014). Force & marriage. Intersentia. ISBN 978-1-78068-252-5.
5 Frulli, M. (2008). Advancing international criminal law: The Special Court for Sierra Leone recognizes forced marriage as a ‘new’ crime against humanity. Journal of International Criminal Justice, 6(6), 1033–1042. https://doi.org/10.1093/jicj/mqn063
6 Jain, N. (2008). Forced marriage as a crime against humanity: Problems of definition and prosecution. Journal of International Criminal Justice, 6(6), 1013–1032. https://doi.org/10.1093/jicj/mqn064 7 Haenen, I. (2014). Force & marriage. Intersentia. ISBN 978-1-78068-252-5.
8 United Nations. (1948). Universal Declaration of Human Rights
9International Criminal Court. (2023). Policy on gender persecution. Retrieved from https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf;
International Criminal Court. (2022). [Court record CR2022_07146]. Retrieved from https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146.PDF
10 Haenen, I. (2014). Force & marriage. Intersentia. ISBN 978-1-78068-252-5.
11 O'Brien, M. (2016). ‘Don't kill them, let's choose them as wives': The development of the crimes of forced marriage, sexual slavery and enforced prostitution in international criminal law. The International Journal of Human Rights, 20(3), 347–364. https://doi.org/10.1080/13642987.2015.1091562
12 Haenen, I. (2014). Force & marriage. Intersentia. ISBN 978-1-78068-252-5.
13 International Criminal Court. (2013). Elements of crimes (ISBN 92-9227-232-2). Retrieved from https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf
14 International Criminal Court. (2023). Policy on gender persecution. Retrieved from https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf
International Criminal Court. (2022). [Court record CR2022_07146]. Retrieved from https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146.PDF
15 Park, A. S. J. (2006). ‘Other inhumane acts’: Forced marriage, girl soldiers, and the Special Court for Sierra Leone. Social & Legal Studies, 15(3), 315–337. https://doi.org/10.1177/0964663906066611
16 Kerr, V. M. (2020). Should forced marriages be categorized as 'sexual slavery' or 'other inhumane acts' in international criminal law? Utrecht Journal of International and European Law, 1(1), 1–19. https://doi.org/10.5334/ujiel.524
17 Frulli, M. (2008). Advancing international criminal law: The Special Court for Sierra Leone recognizes forced marriage as a ‘new’ crime against humanity. Journal of International Criminal Justice, 6(6), 1033–1042. https://doi.org/10.1093/jicj/mqn063
18 Frulli, M. (2008). Advancing international criminal law: The Special Court for Sierra Leone recognizes forced marriage as a ‘new’ crime against humanity. Journal of International Criminal Justice, 6(6), 1033–1042. https://doi.org/10.1093/jicj/mqn063
19 Adams, A. (2018). The legacy of the international criminal tribunals for the former Yugoslavia and Rwanda and their contribution to the crime of rape. The European Journal of International Law, 29(3), 749–769. https://doi.org/10.1093/ejil/chy043
20 Haenen, I. (2014). Force & marriage. Intersentia. ISBN 978-1-78068-252-5.
21 Park, A. S. J. (2006). ‘Other inhumane acts’: Forced marriage, girl soldiers, and the Special Court for Sierra Leone. Social & Legal Studies, 15(3), 315–337. https://doi.org/10.1177/0964663906066611
22 Special Court for Sierra Leone. (2007). Prosecutor v. Brima, Kamara, and Kanu (AFRC Case), Trial Chamber Judgment, SCSL-04-16-T.
23 Special Court for Sierra Leone. (2007). Prosecutor v. Brima, Kamara, and Kanu (AFRC Case), Trial Chamber Judgment, SCSL-04-16-T, para 704.
24 Special Court for Sierra Leone. (2008). Prosecutor v. Brima, Kamara, and Kanu (AFRC Case), Appeals Chamber Judgment, SCSL-04-16-T.
25 Special Court for Sierra Leone. (2008). Prosecutor v. Brima, Kamara, and Kanu (AFRC Case), Appeals Chamber Judgment, SCSL-04-16-T, paras. 169-203.
26 Special Court for Sierra Leone. (2008). Prosecutor v. Brima, Kamara, and Kanu (AFRC Case), Appeals Chamber Judgment, SCSL-04-16-T, paras. 169-203.
Merita Pergega - 12/12/2024
inhumane acts” provides a more nuanced legal framework while preserving the principle of legal certainty.
Comments