Emerging Voices: Taking Forced Marriage out of the “Other Inhumane Acts” Box

by Frances Nguyen

[Frances Nguyen is a recent J.D. graduate of Lewis & Clark Law School.]

Forced marriage is a complicated subject. The multilayered acts of brutality frequently overlap with sexual slavery, enslavement, rape, and arranged marriage. This can create confusion leading scholars, courts, and legal practitioners to either disregard forced marriage or shelve it into the box of “other inhumane acts” under crimes against humanity. The purpose of this post is to facilitate a proper discussion and address the legal complexities of forced marriage. More importantly, this post is calling for a robust recognition of forced marriage as an international crime. Instead of putting it under the general rubric of “other inhumane acts” it should be explicitly listed and placed alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute.  In doing so, the criminalization of forced marriage by the international community will gain ground. This will lead to greater punishment against the perpetrators and properly accord the victims justice. Victims of forced marriage often endure severe long-term physical and emotional trauma due to their continuous and exclusive relationship with their perpetrators. For example, Fatmata Jalloh was selling pancakes on a rural road in Sierra Leone when a rebel soldier kidnapped her and made her his wife. “I was a child. I didn’t know anything about love at that time. But he said, “If you don’t take me [as your husband], I’ll kill you,” Jalloh said. As his wife, Jalloh was forced to perform sexual acts and domestic duties for two years until Sierra Leone’s civil war ended. “There was no way not to do it. If I would leave, I would have no food. He would kill me.”

Jalloh’s story is representative of many young women and girls who were forced to become “bush wives,” women who were forced into marriage and essentially became domestic and sexual slaves to militia soldiers. From 1991 to 2002, Sierra Leone was embroiled in a civil war, which resulted in the national government fighting against rebel groups. At least 50,000 people died, while an estimated 100,000 suffered from mutilation. While massive atrocities were prosecuted by the Special Court for Sierra Leone (SCSL), forced marriage remained a neglected issue until 2008 when the SCSL in Prosecutor v. Brima, Kamara, and Kanu formally recognized forced marriage as a crime against humanity as an “other inhumane act.”

According to the SCSL, forced marriage involves a perpetrator compelling a person by force or threat of force, through words, or conduct of the perpetrator, or anyone associated with him, into a forced conjugal association resulting in great suffering or serious physical or mental injury on the part of the victim. A year later in Prosecutor v. Sesay, Kallon, and Gbao, the Appeals Chamber of the SCSL upheld the Trial Chamber’s ruling on the conviction of forced marriage. While the decisions in Sierra Leone were a major step in advancing the proscriptions against gender-based crimes, case law remains insufficient in addressing forced marriage as a crime against humanity. Other than Sierra Leone, no other tribunal to date has successfully prosecuted and convicted suspects accused of forced marriage. The lack of enforcement in subsequent case law shows an unsettling gap in international law concerning forced marriage.

This “gap” not only has negative repercussions from a legal standpoint, but also creates a damaging societal impact on all the parties involved, particularly for the victims and their communities. The perception of the individual’s marriage to the perpetrator, regardless of the coerced circumstances, unfortunately leads to prejudice towards the victim. The victim is intimately associated with the perpetrator over a long duration of time, which leads to discrimination upon returning to the victim’s homes and families. To close the gap, the definition of forced marriage should be specifically enumerated as a crime against humanity alongside other sex and gender-based crimes such as rape and sexual slavery under Article 7 (1)(g) of the ICC Rome Statute.

While advocates of criminalizing forced marriage believe it should remain under “other inhumane acts” of the ICC Rome Statute, the crimes categorized in this area do not match the brutality of forced marriage. For example, previous crimes recognized as “other inhumane acts” include economic discrimination, destruction of Jewish property, and beatings. See Matthew Lippman, International Law and Human Rights Edition: Crimes Against Humanity and Prosecutor v. Tadic. These examples demonstrate how the “other inhumane acts” clause serves as an inclusive category for other crimes not specifically enumerated under the Rome Statute. Furthermore, crimes such as beatings and economic discrimination are severe in nature and should be included under “other inhumane acts.”  However, in contrast to these aforementioned crimes, putting forced marriage under the “other inhumane acts” box diminishes its severity. This arguably makes it more difficult for forced marriage to be effectively prosecuted.

The purpose in identifying forced marriage as a sex and gender-based crime rather than an “other inhumane act” is not simply for legal categorization. Rather, it is to cast a greater spotlight on a crime that has received scant recognition by the international community. As a result this has led to weak criminal enforcement. For instance, the ICC has issued arrest warrants for Ugandan warlord Joseph Kony and other high-ranking officials of the Lord’s Resistance Army for crimes against humanity, such as sexual slavery, rape, and murder. However, there was no mention of forced marriage in the indictment despite widespread reports. The ICC’s omission illustrates the importance in classifying forced marriage as a sex and gender-based crime.

The local and international community has achieved success in socially reintegrating young men and boys back into their societies after fighting in combat as child soldiers. See Kari Hill and Harvey Langholtz, Rehabilitation Programs for African Child Soldiers. If more local communities established rehabilitation programs for forced marriage victims, then societies will progress in creating long-lasting positive change. The victims, who are predominantly young women and girls, can realize their self-worth and reclaim their personal autonomy. After years of hardship and trauma, the sufferers  of forced marriage should receive as much treatment and respect as their male counterparts. This will ultimately create a powerful social weapon to combat forced marriage. As Fatmata Jalloh said, “[So] for other women coming, they don’t have the same story [as me].”

http://opiniojuris.org/2013/07/31/emerging-voices-taking-forced-marriage-out-of-the-other-inhumane-acts-box/

2 Responses

  1. Thank you for this excellent post on what is indeed a complicated and, sadly, often disregarded issue.
     
    In order to stress the importance of recognising forced marriage as a separate crime, it is essential to clearly demonstrate the features which distinguish it from other crimes, especially sexual slavery. (As we know, the SCSL Trial Chamber in the AFRC case considered the instances of forced marriage subsumed within the crime of sexual slavery; the ICC in the Katanga confirmation of charges decision also listed forced marriage as an example of sexual slavery.) Treating forced marriage as sexual slavery fails to understand its main distinguishing feature: a forced conjugal association. Such an association causes very specific harms to the victim: it forcibly binds the victim for life to another person, often one that the victim fears or despises; it subjugates the victim to the perpetrator, because in many cultures the ‘wife’ is automatically submissive to the ‘husband'; it precludes the victim from entering into a marriage of choice; it ostracises the victim from her community for allegedly siding with the perpetrator; and it often excludes the victim from legal remedies for crimes committed within the ‘marriage’, since many societies don’t criminalise marital rape or domestic abuse. I believe that these harms should be talked about more, rather than the sexual violence, which typically occurs within forced marriage, but is a separate crime that can and must be prosecuted separately.
     
    However, as I see it, the biggest obstacle to achieving the inclusion of forced marriage into the Rome Statute (or any other legal acts) is the tradition of arranged marriages and inequality of spouses in many countries, including Sierra Leone and Uganda. In fact, in societies which do not recognise the possibility of a marriage against the will of one of the spouses, or which do not require the subjugation of wives to their husbands, the crime of forced marriage is hardly possible: in such societies, the victim and the community would regard the act as abduction or slavery, but not a conjugal association, and the specific harms related to ‘marriage’ would not arise. Thus, explicit criminalisation of forced marriage is likely to threaten peacetime traditions of marriage and gender relations in many states. So while such an option is certainly preferable, perhaps prosecuting forced marriage as ‘other inhumane acts’ is a slightly more practicable alternative?

  2. Ariste,
    You’ve made some excellent points in your response. First, yes I mostly certainly agree with you that in order to fully understand forced marriage, it is important to understand the distinctions between sexual slavery and forced marriage. While there is some overlap between the two, the differences – particularly as you well noted the conjugal association aspect – is absolutely crucial. I discuss this topic more extensively in a longer version of my paper. 
    I also believe the conjugal association part is significant because it shapes how communities perceive victims, whether they are seen as victims of sexual slavery or forced marriage. Sexual slavery, as horrific as the crime is, implies complete physical and sexual subjugation from the victim through coercive means by the perpetrator. However, not having the conjugal association element included means there’s more of a dissonance between the victim and perpetrator. Hence, it’s easier to argue that the victim and the perpetrator are separate parties with a distinct lack of a relationship, other than the slavery-master association. As you mentioned, it is harder for a victim to be disentangled with the perpetrator in a forced marriage due to marital ties, despite being forced against her (or his) will. Thus, in cases like Uganda, you have unfortunate situations where victims of forced marriage faced discrimination upon returning to their communities because of the former conjugal ties she had with the perpetrator. It’s an unfortunate effect and is one that should be noted in discussing the differences between forced marriage and sexual slavery. 

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