By: Aban Ador
27 September 2022
Forced marriage, often overlooked, breaches international human rights law by replacing consent with coercion. This article examines its classification as a crime against humanity, particularly under the category of “other inhumane acts,” through pivotal cases and evolving jurisprudence.
INTRODUCTION
There is no universally agreed-upon legal definition of forced marriage. However, certain elements of the adoption of its definition in national legislation consistently show up, revealing a somewhat customary commonality. Marriage is understood as the union of spouses ‘…in a consensual and contractual legal relationship’. The Universal Declaration of Human Rights (UNDHR) establishes marriage as an absolute right accorded equally to both men and women of ‘full age’ and should be ‘entered into only with the free and full consent of the intending spouses’. The aforementioned consecutive elements of full consent, free will and full age are present or implied in both definitions above as well as in the domestic laws of most countries, indicating that their inclusion in the definition is essential and non-negotiable. Therefore, the absence of the elements would render it a forced marriage, replacing full consent with coercion, a threat to life and/or intimidation. The UDHR’s definition of marriage is echoed in the International Covenant for Civil and Political Rights, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, as well as the Convention on the Elimination of all Forms of Discrimination against Women. As human rights instruments, these treaties have been widely ratified, demonstrating that forced marriage is contrary to international human rights law (IHRL). Particularly, forced marriage is prevalent during armed conflicts and post-conflict situations, presenting a clear breach of the rules of war, especially in the cases of bush wives, where combatants are participants in forced marriages. Violations of IHRL and International Humanitarian Law are remedied through international criminal law, which aims to hold perpetrators accountable for gross human rights violations and core international crimes through individual criminal responsibility.
CLASSIFYING FORCED MARRIAGE UNDER ‘OTHER INHUMANE ACTS’
‘Other inhumane acts’ is one of the prohibited acts categorised under the core crime ‘crimes against humanity’. The core crimes of international criminal law were first recognised and codified during the Nuremberg and Tokyo trials of the 1940s to prosecute key architects of the Third Reich in Nazi Germany and leaders of the Empire of Japan, respectively. This was later refined during the creation of statutes for United Nations Security Council-established international ad hoc tribunals: the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda in the early 1990s. Subsequently, the International Criminal Court’s statute also recognised the prohibited act under Article 7, expanding its definition to include ‘intentionally causing great suffering or serious injury to body or mental or physical health.’ The hybrid courts reflected the core crimes provisions into their respective statutes with minor alterations but primarily using the same wording.
The ever-expanding category of other inhumane acts has encompassed many crimes such as experimentation with reproductive functioning, ‘mutilation and other types of severe bodily harm, beatings and other acts of violence.’ It is precisely due to this wide-ranging categorisation that the open-ended prohibited act was incorporated under crimes against humanity, a deliberate design to inhibit ‘opportunities for evasion of the letter of the prohibition.’
Even though the open-ended reference to other inhumane acts has been used for more than forty years to prosecute perpetrators of offences that constitute crimes against humanity but which the Rome Statute does not specifically mention as such, it was in 2008 that international criminal law adjudicated forced marriage for the first time. The Special Court for Sierra Leone, a hybrid court, laid out the requirements that the act of forced marriage must meet to be categorised under other inhumane acts:
- inflict great suffering, or serious injury to mental or physical health;
- are sufficiently similar in gravity to the acts referred to in Article 2(a) to Article 2(h) of the Statute, and
- the perpetrator was aware of the factual circumstances that established the character of the gravity of the act.
The Court exerted that ‘acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence.’ The Court reasoned that victims of forced marriage were subjected to, inter alia, repeated acts of rape, sexual violence and deprivation of liberty; the Court further noted that they were ‘psychologically traumatised by being forced to watch the killing or mutilation of close family members’ straight to becoming wives of their torturers, thus fulfilling the threshold of gravity. The same Court had also found that the prohibited act of other inhumane acts ‘forms part of customary international law.’
The Extraordinary Chambers in the Courts of Cambodia, another hybrid court, convicted two defendants for forced marriage, invoking the SCSL’s AFRC case precedent finding of other inhumane acts as customary international law. The ICC Trial Chamber IX in the Ongwen case confirmed in 2021 that the requirements set previously by the SCSL for forced marriage constitute other inhumane acts. In the same case, Pre-Trial Chamber II set out the central element of forced marriage as the ‘imposition of “marriage” on the victim’ such as imposing ‘duties’ associated with marriage, whether performed wilfully or not by the victim and the ‘social status’ awarding the victim as the ‘perpetrator’s “wife”.’ This leaves a social stigma for the victim. The forgoing phrase underscores the Chamber’s disproportionate classification of victims as it only factored in the female gender. The ECCC, however, has affirmed that men can also be victims of forced marriage in its Appeals Judgement of the Khieu Samphân case.
The Trial Chamber in Ongwen also identified a distinction between forced marriage and the enumerated prohibited acts under crimes against humanity that the SCSL Appeals Chamber established. It recognised two types of harm relating to the course of conduct of forced marriage: ‘the violation by the accused of the victim’s relational autonomy’ and a constellation of rights violations.’ The first harm relates to the absence of consent in marriage, removing autonomy from the victim and imposing on them a conjugal union that demands exclusive commitment. The second harm is the victim’s endurance of multiple violations simultaneously on top of the first harm. This is assessed on a case-by-case basis, but it typically includes the victim being on the receiving end of ‘abduction, rape, sexual slavery, enforced exclusivity in the sexual relationship, inability to leave the conjugal union for fear of violent retribution’ and ‘forced childbearing.’
The data that is currently accessible on forced marriage largely pertains to child marriages, which are considered a type of forced marriage due to the inability to obtain consent from individuals who are not yet of legal age, or under 18 years of age. The conduct of forced marriage also disproportionately affects girls and women, with more than 650 million girls and women worldwide having been married as children and one in every five girls married off before the age of 18. The United Nations reports that this number doubles in the least developed countries. This data also suggests that forced marriage manifests gender-based violence and inequality, especially as it is widespread during armed conflicts and in other humanitarian settings i.e., refugee camps, severely impoverished areas, shelters, etc. The fact that it took until 2008 for forced marriage to enter the international criminal justice arena despite its prevalence affirms the criticism against international courts, including the ICC, that Sexual and Gender-Based Violence continues to be ‘consistently marginalised or dismissed as a natural consequence of war.’
CONCLUSION
The prosecution of forced marriage under international law developed through the interpretation of the right to marry as codified in the UDHR, then the establishment of the IMT tribunals and Statutes in the 1940s which saw the use of the category other inhumane acts under crimes against humanity for the first time. This was then improved upon by the statutes of the ad hoc tribunals of the 1990s, updating it after more than forty years and finally, the Rome Statute also adopting it. Afterwards, multiple hybrid courts followed suit and codified the core crimes in their constituent documents. Shortly afterwards, international jurisprudence on forced marriage developed, appearing in the prohibited act category of ‘other inhumane acts’ under crimes against humanity and was finally recognised as customary international law.
REFERENCE LIST
International Treaties
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (adopted 07 November 1962, entered into force 9 December 1964) UNTS 7525.
Convention on the Elimination of all forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) UNTS 20378.
International Convention for Civil and Political Rights (adopted, 16 December 1966, entered into force 23 March 1976) UNTS 999 171.
Rome Statute of the international Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS 2187 3.
The Universal Declaration of Human Rights (adopted 10 December 1948) 217 A (III).
Books and Publications
Annerieke Smaak and Nisha Varia, ‘Ending Child Marriage in Africa’ (Human Rights Watch, 2015). Available at: https://www.hrw.org/news/2015/12/09/ending-child-marriage-africa;
Bridgette A. Toy-Cronin, ‘What Is Forced Marriage – Towards a Definition of Forced Marriage as a Crime against Humanity’ (Columbia Journal of Gender and Law, 2010) 19 239.
Chris Coulter, Bush Wives and Girl Soldiers: Women’s Lives through War and Peace in Sierra Leone (Cornell University Press, 2009).
Emma Psaila et al, ‘Forced marriage from a gender perspective’ (Policy Department C: Citizens’ Rights and Constitutional Affairs, European Parliament, 2016). Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556926/IPOL_STU(2016)556926_EN.pdf.
Katrin Anastasia Gabriel, ‘Engendering the International Criminal Court: Crimes Based on Gender and Sexual Violence’ (Eyes on the ICC 2004) 11.
Robert Cryer, Darryl Robinson, Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2019).
Reports
European Union Agency for Fundamental Rights, ‘Addressing forced marriage in the EU – Legal provisions and promising practices’ (Publications Office, 2014). Available at: https://data.europa.eu/doi/10.2811/70551.
International Committee of the Red Cross, ‘Commentary on the 4th Geneva Convention’ (ICRC, 1958) p 39. Available at: https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-3/commentary/1958.
United Nations Children’s Fund, ‘Child Marriage Annual Report’ (UNICEF 2019). Available at: https://www.unicef.org/media/83516/file/Child-marriage-annual-report-2019.pdf.
United Nations Human Rights Office of the High Commissioner, ‘Child and forced marriage, including in humanitarian settings’ (OHCHR, 2020). Available at: https://www.ohchr.org/en/women/child-and-forced-marriage-including-humanitarian-settings.
World Health Organization, ‘Child, early and forced marriage legislation in 37 Asia-Pacific countries’ (World Health Organization, 2016). Available at: https://iris.who.int/handle/10665/246283.
Websites
‘Marriage Definition & Meaning’ (Merriam-Webster). Available at: https://www.merriam-webster.com/dictionary/marriage#:~:text=Legal%20Definition-,marriage,see%20also%20divorce%2CObergefell%20v.