Forced Marriage as a Crime against Humanity before the International Criminal Court

(1)

Forced Marriage as a Crime against Humanity

before the International Criminal Court

Marieke Pielaat Student number: 10542957 mariekepielaat@gmail.com

Public International Law Universiteit van Amsterdam

(2)

Abstract

In the past decades, forced marriage has been used as a tactic in armed conflict to support the armed forces and to control the sexual autonomy of civilians. In March 2016 the Pre-Trial Chamber of the International Criminal Court (ICC) recognized forced marriage as the crime against humanity of “other inhumane acts”. As of 2019, there are two individuals charged with forced marriage before the ICC. Jurisprudence following the first recognition of the crime by the SCSL in 2008 has been inconsistent. In the legal discussion that followed, legal scholars have focussed on the categorization of the crime, as well as the legality of recognizing the “new” crime against humanity. This thesis analyses the evolution of the crime and the characterization of the Prosecutor in the case of Dominic Ongwen. The last chapter will examine the normative impact of the recognition of the crime. This thesis stresses that an inclusion of a definition of forced marriage in the Rome Statute is necessary if the Court wants to retain legitimacy and adhere to its aims.

(3)

Introduction

Sexual violence has long been part of international and internal armed conflicts. While both men and women are subjected to heinous acts, women and girls make up the majority of victims of sexual violence during mass atrocities. Violence against women and girls historically remained largely unreported and under investigated. Sexual- and gender-related crimes were not included in the International Military Tribunals (IMTs) after WO II and consequently, acts of sexual violence had long been committed without repercussions.1_{Since the 1990’s, the} International Criminal Tribunals have attempted to prosecute those most responsible for atrocities. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been important actors in ending impunity for sexual violence, such as rape.2_{During the formation of the International Criminal} Court (ICC), an extended list of sexual violence offence was added to the Rome Statute.3_The head prosecutor of the Court, Fatou Bensouda, intends to take serious steps to strengthen prosecution of sexual and gender-based crimes.4

While acts like rape have crystallized in international jurisprudence, the crime of forced marriage has not. Forced marriage has been used as a tactic in armed conflict and is prevalent in armed conflicts today.5_{Despite reports of forced relationships during the conflict in Rwanda,} the Special Court for Sierra Leone (SCSL) was the first International Tribunal to recognize forced marriage as a crime against humanity. In the case against Brima, Kamara and Kanu, known to the public as the AFRC case, the Appeals Chamber found evidence of women and girls who:

“endured physical injury by being subjected to repeated acts of rape and sexual violence, forced labour, corporal punishment, and deprivation of liberty. Many were psychologically traumatized by being forced to watch the killing or mutilation of close family members, before becoming “wives” to those who committed these atrocities and from being labelled rebel “wives” which resulted in them being ostracized from their communities. In cases

1_{O’Brien (2016), p. 386.}

2_{Akayesu, Trial Judgment, paras. 688 and 693 and Kunarac et al., Trial Judgment, para. 267.}

3_{Art. 7(g) Rome Statute lists the crimes against humanity of rape, sexual slavery, enforced prostitution, forced} pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.

4_{Statement of Fatou Bensouda, available at:} https://www.icc-cpi.int/Pages/item.aspx?name=statement-otp-07-03-2014 (last accessed 16 June 2019).

5_{See e.g. the case of the Yazidi women, who were forced to marry ISIS fighters,}

https://www.straitstimes.com/world/middle-east/agony-of-yazidi-women-torn-between-kids-fathered-by-isis-fighters-or-return-home (last accessed 16 Juli 2019)

(5)

where they became pregnant from the forced marriage, both they and their children suffered long-term social stigmatization.”6

In an attempt to characterize the multifaceted conduct the women were subjected to, the Appeals Chamber of the (SCSL) convicted the perpetrators for forced marriage as the crime against humanity of “other inhumane acts”.

The Confirmation of Charges Decision of the ICC Chambers in the Prosecutor v. Ongwen in 2016 has re-ignited the unsettled legal discussion on this “new” crime. The Pre-Trial Chamber confirmed charges of forced marriage under the “other inhumane acts” clause.7_{Due to the range} of different practices of forced marriage and the overlap with other acts such as sexual slavery and enforced pregnancy, jurisprudence concerning the characterization of forced marriage has so far been inconsistent. Other international tribunals and national courts may look at the International Criminal Court for guidance, as it is the only permanent Criminal Court. The decision of the court and the narrative created will therefor carry weight.

Only limited attention has been paid to the long-term consequences for victims and society of the recognition of forced marriage. This thesis will attempt to fill that gap. The question remains if forced marriage as the crime against humanity of “other inhumane acts” is the appropriate characterization for the multi-layered crime? Why does it matter under which label it is prosecuted? In order to answer these questions, chapter 1, 2 and 3 examine the development of the conduct as an international crime and the elements of forced marriage. Chapters 4, 5 and 6 will focus on the compatibility of the crime with the principle of legality and on the influence of trials on women’s rights.

6_{Brima et al., Appeals Judgment, para. 199.} 7_{Ongwen, Pre-Trial Judgment.}

(6)

Forced marriage in Context

According to tradition in many non-Western countries, marriage is an agreement made between two families rather than a decision of two people who fell in love. This tradition, known as arranged marriage or customary marriage is universally accepted under the principle of cultural relativism. The distinction between the traditional arrangements of marriage and forced marriages has been given a considerate amount of attention in international legal literature. The practice of arranged marriage is undoubtedly open to abuse, yet it continues to be a legal practice around the globe. The anxiety around prohibiting these traditional practices, is arguably the reason why the international community has been reluctant to include forced marriage as a crime in the statutes of the International Criminal Tribunals (ICTs).8_{This section will focus on} the main features of forced marriage during armed conflict and arranged marriages during peacetime in order to establish a clear distinction between the two. In this chapter, it will be argued that the criminalization of forced marriage would not lead to the criminalization of arranged marriage.

1.1 Arranged Marriage, Forced Marriage, Arranged Forced Marriage

While it is uncontested that an arranged marriage can turn into an arranged forced marriage, scholars who have welcomed the recognition of the “new” international crime argue these situations should be distinguished.9_{An author of the briefing paper to the SC-SL Prosecutor,} the Office of the Prosecutor (OTP) that successfully charged forced marriage, explained that a clear distinction between arranged and forced marriage was vital as it was not in the Prosecutors intention to declare arranged marriages a war crime.10

Two cases which have recently been under the jurisdiction of two different international criminal tribunals can provide valuable insight. The first case is case 002/02 under the jurisdiction of Extraordinary Chambers in the Courts of Cambodia (ECCC). The following section will compare traditional arranged marriages in Cambodia and forced marriages under

8_{Eboe-Osuji (2012), p. 255.}

9_{Scharf and Mattler (2005), p. 10, Jain (2008), pp. 1026-1028.} 10_{Toy-Cronin (2010) p. 570.}

(7)

the Khmer Rouge regime.11_{The second case is the situation in Uganda, which is currently under} the jurisdiction of the International Criminal Court.12

1.2 Forced Marriage in Conflict: Marriage as a Policy.

The Khmer Rouge regime (1975-1979) aimed to achieve a communist revolution in Cambodia. Ambitions the regime had were to abolish money and private ownership in order to build a socialist society with unconditional loyalty to the Angkar (the Organization).13_{The regime} intended to replace the most important relations in the life of Cambodians.

On the one hand, reproduction was necessary for a new generation “to perform labour and sustain the agrarian revolution”.14_{One the other hand, the Khmer-Rouge saw sexual relations} as a distraction. Hence the idea to restrict the sexual autonomy of Cambodians was born. The

Angkar arranged official ceremonies in which groups of men and women were divided in

couples, had to join hands and recite a statement of faithfulness.15_{They vowed loyalty to each} other and to the regime. Particularly in the beginning of the regime, some woman and men were able to choose their partners freely. However, often the couples were complete strangers, who were forced to commit to each other in mass ceremonies and who had to promise to produce a child within a year.16_{These ceremonies were devoid of tradition and family members were not} allowed to attend. Couples chosen by the Angkar who refused to marry faced punishments such as beatings, sexual violence, rape or were send to “re-education camps”. For many Cambodian women, the order to produce a child lead to rape and sexual violence by their comrade husbands, with approval of the Angkar.17

In the context of Uganda, the practice of forced marriage took place in the camps of the Lord’s Resistance Army (LRA). The LRA kidnapped over 60.000 children and youths between 1990 and 2006 and took them to live in rebel compounds. These compounds resembled the village life of Acholi people in northern Uganda. The rebel group replicated the social interdependence and responsibilities within the familial unit of Acholi culture.18_{The marriages between the}

11_{Case 002/02, Trial Judgment.} 12_{Ongwen, Pre-Trial Judgment.} 13_{Jain (2008), p. 1023.} 14_{Toy-Cronin (2010), pp. 544-545.} 15_{Ibid, p. 548.} 16_{De Langis et al. (2014) p. 28.} 17_{Ibid, p. 29, Toy-Cronin (2010), pp. 550-553.} 18_{Baines (2014), pp. 409-410.}

(8)

kidnapped women and rebels were arranged, without a formal process. The LRA leadership coerced young women into a marital status with rebels to boost morale. Senior rebels allegedly had up to 5 forced wives.19_{The women were not only coerced into marriage with a rebel, they} had no rights within the marriage.

Forced wives served as both direct support to rebels, as part of the troops and indirect support; they were ordered to cook, clean, have regular sexual intercourse with their “husbands” and to bear and rear children.20_{In both situations, women (and in the Khmer-rouge regime also men)} had no authority over their sexuality. The main goal of the marriages was to control the couple’s sexuality and to create a new generation.21 _{Disobeying a command often resulted in} punishments like imprisonment, torture, hard labour, beatings or executions.22

1.3 Peacetime Marriage Practices

The forced marriage policies under discussion took place in countries where in customary practices of marriage were prevalent. Before 1975, marriages in Cambodia were contracted by the parents of eligible singles. The men initiated the process, after which the parents assessed the compatibility of the future spouses.23_{If there was a default in the consent to the marriage of} either the man or the woman, for example if consent was mistaken or coerced, the Civil Code provided the opportunity to break off the engagement or annul the marriage. This way, a lack of consent could be repaired.24_{The wedding ceremonies were an important part of tradition: it} legitimized the union towards the community, demonstrated obedience towards the parents and the event held spiritual meaning.25

Arranged marriage in Acholi culture in South Sudan/Northern Uganda and in the camps of the rebels of the Lord’s Resistance Army (LRA) show significant differences as well. In Acholi culture marriage practice is a slow process called cuna (the courtship). Two families build up a relationship, with the support and involvement of the offspring. The bride and her family must give consent to the marriage in order to be valid and the bride’s father negotiates and accepts the dowry payment. The lineage of the men can start the payment of the bride wealth at any

19_{Carlson and Mazurana (2008), p. 16.} 20_{Baines (2014), pp. 408-410}

21_{In the case of the LRA, the new generation was labelled “the New Acholi”, Baines (2014) at 410.} 22_{Toy-Cronin (2010), p. 545, Baines (2014), p. 411.}

23_{Toy-Cronin (2010), p. 546.} 24_{Ibid, p. 547.}

(9)

point in this process and from that moment the man and the woman can start living together, being more or less married. The absence of a dowry payment is considered an act compatible to abduction according to customary Acholi law.26

Concluding Remarks

What becomes apparent from these cases is that the institution of marriage has been utilized in conflict to control, and in some cases to enslave, the local population. The mass ceremonies during the Khmer Rouge regime illustrate that it affects both the male and female population, though it has disproportionately affected women and girls. Forced marriages took place in an overall coercive environment and are part of a policy or plan. The conduct has been described as a perversion of peacetime customary marriage practices with added elements of crimes recognized as crimes against humanity. Therefore, it resembles but also distorts the social institution of marriage.

While in arranged marriages there is often no autonomy in the choice of partner, at a minimum there is consent to the marriage itself. Arranged marriages can be understood as a delegation of the selection process and consent to the parents or family marriages.27_{The ECCC has further} (among other elements) relied on the element of mutual trust for the distinction. Mutual trust is presumed to exist between the offspring and parents or family.28_{Moreover, an arranged} marriage is a private arrangement between two families, while forced marriages are part of an attack on a civilian population.29

26_{Carlson and Mazurana (2008), p. 51-52.} 27_{Scharf and Mattler (2005), p.11}

28_{Prosecutor v. Chea and Samphan, Trial Judgment, para 19.} 29_{Nyugen (2014), p. 34.}

(10)

2. The Evolution of a new Criminal Norm

Forced marriage policies have different features depending on the context in which they occur. Common factors are the imposition of a marital status, the overall coercive environment and the specific purposes for the marriage. In this chapter the regulation of (forced) marriage in international law will be examined. Part 2.2 analyses the evolution of the crime before International Criminal Tribunals.

2.1 Prohibition of forced marriage in international law

The Universal Declaration of Human Rights, adopted at the 10th_{of December in 1948, was the} first multilateral instrument that dealt with the regulation of marriage. The second paragraph of article 16 UDHR stipulates “Marriage shall be entered into only with the free and full consent of the intending spouses”. The Declaration further stipulates that spouses should have equal rights to enter into marriage, in the marriage itself and at its dissolution.30_{The Declaration is a} non-binding document which served as a starting point for many provisions on marriage and the family in several international human rights documents. The International Covenant on Civil and Political Rights, as well as an elaborate number of other international and regional human rights instruments, require marriage to be conducted between spouses of marriageable age, in full and free consent.31_{The Human Rights Council recently understated the importance} of free and full consent to marriage in their resolution, by urging States to enact and enforce laws that prevent child, early and forced marriages.32

Some States have objected to the requirement of equality of men and women as far it’s incompatible with national law or religious beliefs. 33_{Nonetheless, in International Human} Rights Law there is a general agreement that consent is required for a marriage to be valid. Entering into a marriage without consent of one of the spouses would constitute a breach in human rights law. A breach of IHRL does not however, automatically render the conduct criminal under international criminal law. Human rights are mainly concerned with obligations

30_{Art. 16 (1) Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)} (UDHR).

31_{Art. 23 ICCPR, and see e.g.: Art. 10 ICESCR, art. 16 CEDAW, art. 10 ECHR, art. 17 ACHR, art. 6 Maputo} Protocol and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.

32_{Resolution on Child, early and forced marriage in humanitarian settings adopted by the Human Rights Council} on 22 June 2017 (HRC Resolution 35/16), p. 3.

(11)

upon states, while international criminal law requires the conduct to entail individual criminal responsibility.

International Humanitarian Law (IHL) regulates the means and methods of warfare. Similar to human rights law, it was initially mainly concerned with State behaviour. Humanitarian settings aggravate the risk of forced marriage because of various factors, including insecurity, the breakdown of law and the use of forced marriage as tactic in conflict.34_{The suffering of women} during conflict was for a long time considered “collateral damage” in international law. It wasn’t until 1949 that gender-related crimes were introduced into IHL. As humanitarian law developed, the Geneva Conventions were drafted and the consequences of warfare on the civilian population became a more urgent topic. The fourth Geneva Convention prohibits crimes that often occur within forced marriage, like rape, forced pregnancy and “any form of indecent assault”.35_{Additional Protocol II to the Geneva Conventions added “assaults on} personal dignity” to the list of gender-based offences. Forced marriage was never explicitly added.36_{The anxiety around criminalizing forced marriage possibly resulted in this gap in} international treaties concerning the methods of war in international and internal armed conflict.

2.2 International Criminal Jurisprudence 2.2.1 The AFRC Case:

The ground-breaking judgment in which forced marriage was recognized as an international crime, was delivered by the Appeals Chamber of the SCSL in the case against Brima, Kamara and Kanu (AFRC case).37_{Forced marriage was a commonly used tactic by rebels in the armed} conflict in Sierra Leone, lasting from 1991 to 2002. It was extensively used by the Armed Forces Revolution Council, a group that successfully staged a coup on the government in 1997. In Sierra Leone, the victims of forced marriage were often abducted from their communities at a young age, handed over to rebels and referred to as “bush wives”.

34_{HRC Resolution 35/16, p. 3.} 35_{Art. 27 Geneva Convention (IV).}

36_{Art. 4 Additional Protocol II to the Geneva Conventions.} 37_{AFRC Trial Chamber Judgment.}

(12)

The crimes over which the SCSL had jurisdiction are listed in arts. 2-5 of the Statute of the SCSL.38_{To prosecute forced marriage as a crime against humanity, it had to be brought under} the umbrella of the enumerated crimes against humanity in the Statute. The Court struggled with the legal categorization of the crime. Since forced marriage is not explicitly listed, article 2(g) of the SCSL Statute “any other form of sexual violence” would, at first glance, seem like the appropriate categorization. However, the Prosecutor held that forced marriage was a non-sexual crime and should be categorized under the umbrella of art. 2(i): “other inhumane acts”.

The Prosecution argued that the emphasis of the crime should be on the imposition of the status of marriage by force or threat, and the mental and physical suffering as a result of this status. Even though forced marriage usually leads to sexual violence, it is not necessarily a sexual crime.39_{The Trial Chamber in the AFRC case disagreed. The Chamber held the evidence} provided by the Prosecution was not capable of establishing a non-sexual crime. According to the Trial Chamber, forced marriage was completely subsumed by the crime of sexual slavery.40 The AFRC Trial Chamber rejected the argument that the conferral of marital status had led to serious mental or physical harm, and instead held that the term “wife” indicated the intent to exercise ownership over the women.41

In her dissenting opinion, Judge Teresa Doherty respectfully disagreed with the dismissal by the Trial Chamber, reasoning that the act of forced conjugal association42_{has distinctive} features not found in cases of sexual slavery. Moreover, she argued, the psychological and moral suffering that follows from forced conjugal association is of similar gravity to the other crimes against humanity.43_{Forced marriage is contrary to principles of criminal law and human} rights documents, and therefore the conduct constitutes a crime under international law. According to judge Doherty forced marriage should have been charged as the crime of “other inhumane acts”.44

38_{Arts. 2-5 SCSL Statute.}

39_{AFRC Case, Trial Judgment, para. 701.} 40_{Ibid, paras. 697-713.}

41_{Ibid. para. 711.}

42_{Forced conjugal association and forced marriage are used interchangeably in literature on the subject.} 43_{AFRC Trial Judgment, Dissenting Opinion Justice Doherty, para 48-55, 71.}

(13)

Following Justice Doherty’s reasoning, the Appeals Chamber found that forced marriage is not predominantly a sexual crime and reversed the Trial Chamber Judgment. 45_{The Chamber} identified both physical harms such as rape, forced labour, sexual violence and deprivation of liberty, and psychological harms resulting from watching the perpetrators commit egregious crimes, being forced into marriage with these same perpetrators and being labelled as rebel “wives” by their communities.46_{According to the Appeals Chamber forced marriage in the} context of the Sierra Leonean conflict encompasses:

“A situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat or force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”47

2.2.3 The RUF Case

In the later RUF Trial Judgment against the former leaders of the Revolutionary United Front, the SCSL Trial Chamber adopted the definition of forced marriage as set out in the AFRC case. The RUF Trial Chamber saw victims before them with similar experiences to the victims in the

AFRC case. The Judgement in the AFRC case was based on evidence of women who were

coerced to perform duties associated with conjugal relations like sexual intercourse and domestic labour, who in return received protection against rape by other rebels and food from their ‘husbands’. The RUF leaders were convicted of forced marriage as an ‘other inhumane act’, and interestingly, also of the crime of sexual slavery based on the similar factual findings as in the former AFRC case.

The RUF Trial Chamber considered that cumulative charging is only allowed if the elements of the crimes are materially distinct.48_{For the distinct elements, they simply referred to the} distinction made by the AFRC Appeals Chamber between forced marriage and sexual slavery.49 While the AFRC Chamber stated that “the perpetrators of forced marriage intended to impose a forced conjugal association upon the victim rather than exercise an ownership interest”50_{, the} RUF Trial Chamber relied on evidence of forced marriage in their conclusion that the

45_{AFRC Case, Appeal Judgment, para. 195} 46_{Ibid, para. 199.}

47_{Ibid, para. 196.}

48_{RUF, Trial Judgment, para 2300.} 49_{RUF, Trial Judgment, para. 2307}

(14)

perpetrators intended to deprive the women of their liberty and exercised powers attaching to the right of ownership, thus could be convicted for sexual slavery.51_{In their judgment, the Trial} Chamber made no distinction as to which facts were provided in support of the count of forced marriage and which were provided in support for the count of slavery.52

2.2.4. Charles Taylor Case

In the 2012 Taylor case, the SCSL Trial Chamber took a different turn when it dismissed the count on forced marriage and held “conjugal slavery” better represented the experiences of the women and girls who were abducted and forced into conjugal associations in Sierra Leone.53 The reasoning of the Chamber was based on the understanding that forced conjugal associations could not be labelled “marriage”, as no actual marriage (either according to civil or customary law) had taken place.54_{Remarkably, the Taylor Trial Chamber used the findings on the count} of forced marriage by the AFRC Appeals Chamber to describe the experience of the women who were subjected to conjugal slavery. Citing the Appeals Chamber, they held that “bush wives” in Sierra Leone were “coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the ‘husband’, endure forced pregnancy, and to care for and bring up children of the ‘marriage’”.55

The Trial Chamber argued that the AFRC Appeals Chamber did not express the view that the conduct did not constitute slavery, but merely that the conduct is not limited to sexual slavery. In their conclusion, the Chamber held that forced marriage should not be framed as a “new” crime and is better conceptualized as a distinctive form of sexual slavery.56

2.2.5. Case 002/02

The latest judgment concerning forced marriage was issued by the Extraordinary Chambers of the Court of Cambodia in November 2018. In Prosecutor v. Chea and Samphan (Case 002/02) the Chambers held that forced marriage can amount to the crime against humanity of other inhumane acts. The Chamber stated there was no common understanding of the term “forced marriage” and that it had been used in international jurisprudence to cover different factual

51_{RUF Judgment, paras, 1294-1295, 1581.} 52_{Bunting and Ikhimiukor (2018), p. 342.} 53_{Taylor Trial Judgment, para 428.} 54_{Taylor Trial Judgment, para 427.}

55_{AFRC Appeals Judgment, para. 195 as cited in Taylor Trial Judgment, para 427.} 56_{Taylor Trial Judgment, Paras 428-430.}

(15)

understandings.57_{It is apt to point out that there are contextual differences between the 002/02} Case and the case of Sierra Leone and Uganda. The Samphan Defence submitted the Chambers should not compare the situation under the Khmer Rouge in Cambodia to Sierra Leone, as in Sierra Leone the women were abducted and enslaved.58_{According to the Chambers, the} decision if forced marriage could amount to the crime of “other inhumane acts” had to be determined on the factual circumstances. The Trial Chambers relied on evidence of women and men being coerced into marrying against their wills. The Chamber adopted the following understanding of conduct characterizing as forced marriage:

“victims were forced into conjugal associations in coercive circumstances […], weddings took place devoid of traditional involvement […] and sexual relations aimed at enforced procreation were imposed.”59_{The Chamber} considered the severity of mental suffering caused by being coerced to marry and the fear instilled by the regime through pressure to consummate the marriage is of similar gravity to other enumerated crimes against humanity.60

Concluding remarks

According to international human rights law, for a marriage to be valid the free and full consent

of both the spouses is required. Customary marriages consumed with solely with consent of the

parents and families are thus invalid under human rights law. International humanitarian law does not regulate the use of forced marriage as a tactic, it only lists common consequences of the policy. As becomes apparent from the divergences in case law from the ad hoc Tribunals, there is no clear and common understanding of which acts are included in the label “forced marriage” in international case law. The RUF and Taylor Judgments raise the question if forced marriage and (sexual) slavery can and should be distinguished. In line with earlier jurisprudence of the ICC on the issue of forced marriage, the Defence in the Prosecutor v. Ongwen has argued forced marriage is completely subsumed under sexual slavery.61_{On the other hand, several} scholars have suggested enslavement would be the appropriate characterization for the crime.62 In the next part of the thesis, the parameters of enslavement and sexual slavery will be discussed.

57_{Case 002/02, Trial Chamber, para 743.}

58_{KHIEU Samphan Closing Brief, paras 2417-2419.} 59_{Case 002/02, Trial Judgment, para 3686.}

60_{Ibid, 3692.}

61_{Ongwen, Pre-trial Judgment, para. 87.}

(16)

Forced Marriage vs. other gender-related crimes

The ICC has dealt with allegations similar to the circumstances of “bush wives” in the Sierra Leone conflict. These include cases of abduction, forced transport, detention, rape, child bearing and rearing and forced conjugal relations.63_{In Prosecutor v. Lubanga there was} evidence of forced conjugal relations in the context of the recruitment of children in hostilities. In the Katanga case, the ICC used the conduct of forced marriage as evidence for the crime of sexual slavery. In the Judgment in the Katanga case, the Chamber explicitly stated that forced “marriages” to soldiers and other practices in which women are treated as chattel, violate the

jus cogens norm of slavery.64_{In Prosecutor v. Ongwen, the ICC has charged both sexual slavery} and forced marriage as an “other inhumane act”.65

3.1 The crime against humanity of enslavement and its specialis

The definition of the crime of slavery can be traced back to the 1926 Slavery Convention which stipulates: “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”66_{. Enslavement and sexual slavery are both} enumerated in the Rome Statute as a crime against humanity.67_{For the specialis of enslavement;} sexual slavery, additional to the powers attaching to the right of ownership one or more acts of a sexual nature are required.68_{The elements of the crime of enslavement specify that powers} attaching to the rights of ownership include actions such as ‘purchasing, selling, lending or bartering such a person, or by imposing on them a similar deprivation of liberty’69_.

The list is purposely non-exhaustive and recognizes there may be other acts that amount to enslavement. The Elements of Crimes add that exacting forced labour or otherwise reducing someone to a servile status, as defined in the Supplementary Slavery Convention, may amount to a similar deprivation of liberty. Authors that have argued that the practice of forced marriage should be categorized under enslavement have based their argument on a reading of the Slave

63_{Katanga case, Trial Judgment, paras. 958-960, 985, Lubanga case, paras. 629, 891-893. Although there was} evidence of systematic sexual violence, the prosecution in the Lubanga case failed to include allegations of sexual violence in the charges.

64_{Katanga and Chui, Confirmation of Charges, para. 431.} 65_{Ongwen Pre-Trial Judgment, paras 116-119.}

66_{Art. 1(1) 1926 Slavery Convention.}

67_{Art. 7(1)(c) enslavement, art. 7(1)(g) sexual slavery Rome Statute.} 68_{Elements of crimes (hereafter EoC), art. 7 (1)(g)-2 sub 2.}

(17)

Convention and Supplementary Slavery Convention.70_{The Supplementary Slavery Convention} explicitly recognizes that forced conjugal associations may amount to slavery.71_{Next to that, a} “similar deprivation of liberty” has been interpreted to cover situations in which victims were not physically confined, but in which they felt unable to leave because they feared for their lives.72_{Being reduced to a servile status is, however, not enough to amount to slavery; the} exercise of any or all of the powers attaching to the right of ownership remains the necessary condition of the crime of enslavement.73

While it is clear what slavery may have traditionally entailed - persons literally owning other human beings - to establish whether a pattern of conduct entails modern day slavery is determined from a number of factors and indicia. In contemporary law, the possibility to legally own another person does not exist. The threshold of enslavement is a high threshold, which is met if a victim is subject to the exercise of the power of ownership by another person and when this results in the complete or partial “destruction of a victim’s juridical personality”74_{. In other} words, the autonomy and agency of the victim has been removed. The relationship between the victim and perpetrator is therefore characterized as one based on oppression and (near complete) power of one person over another.75_{In the case against Kunarac, Kovac and Vukovic} the ICTY identified the following indicia of the crime of (sexual) slavery:

“the control over someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”76

Many of these elements apply to the experiences of victims in the armed conflicts in Sierra Leone and Uganda. Women were abducted, assigned as “wife” to one rebel soldier and often they were raped and coerced into performing labour.77_{The AFRC Trial Chamber even stated} that the term ‘wife’ was strategic and indicated the perpetrator’s intent to exercise ownership over the victim. The aim of use of the word ‘wife’ was “enslaving the women and manipulating

70_{Sellers (2011), p. 137. Bunting (2012), p. 169.} 71_{Art. 1(c) Supplementary Slavery Convention.} 72_{Taylor, Trial Judgment, para. 420.}

73_{Haenen (2013) p. 902.}

74_{Kunarac et al., Appeals Judgment, para. 117.} 75_{Haenen (2013) p. 903.}

76_{Kunarac et al., Trial Judgment, para 543.} 77_{McKay and Mazurana (2003), p. 7.}

(18)

them with the purpose of treating the victims as their possessions.”78_{The Trial Chamber added} there was thus no need for the recognition of a separate crime of forced marriage under “other inhumane acts”.79

3.2 Forced marriage as distinct from sexual slavery

If the International Criminal Court’s prosecution of the crime of forced marriage as a separate crime against humanity intends to enrich criminal law, it must address conduct that had no remedy under the existing provisions. In other words: prosecuting a crime for which a remedy already exists would be redundant. Justice Doherty argued that forced conjugal associations could be distinguished from sexual slavery, because of the stigmatization of the victims and the serious psychological injury that follows from the forced conjugal relationship. She argued that the label ‘wife’ and accompanied stigmatization negatively effects the reintegration of victims into their communities, which leads to additional long-term mental injury.80_{Victims of sexual} slavery did not enjoy protection from rape from others by their captors. They were also not stigmatized when returning to their communities in same way as the ‘rebel wives’ and their children. According to Judge Doherty, the practice of forced marriage is of similar gravity to the acts enumerated as crimes against humanity in Article 2(a)-(h) of the SCSL Statute and satisfies the elements for the category of “other inhumane acts”.81_{The AFRC Appeals Chamber} agreed, and found two distinctions between forced marriage and sexual slavery:

i) the exclusivity of the relationship, and

ii) the “conjugal association”, which forced victims to perform conjugal duties like forced domestic labour, pregnancy, raising children, and pretending to be the rebel’s wife.82

i) The exclusivity of relationship is a prominent feature in forced marriages. For women and man in the forced marriage in the LRA and the Khmer Rouge, it was prohibited to even engage in conversation if they were not married, unless there was an official reason to do so.83_{A breach} of the arrangement was punishable by beatings, imprisonment or public death.84_{This distinction}

78_{RUF Trial Judgment, para 1466.} 79_{AFRC, Trial Judgment, paras. 711-713.}

80_{Partly Dissenting Opinion Justice Doherty, paras. 47-51.} 81_Ibid¸71.

82_{AFRC Appeals Judgment, para 195.} 83_{Baines, pp. 411-412.}

(19)

was made by the AFRC Chamber in the context of Sierra Leone, where the married women were protected from rape while other women who were captured and not married to a rebel were not. However, the “exclusivity of the relationship” may not provide a very convincing distinction between forced marriages and sexual slavery as the offence of sexual slavery does not require multiple perpetrators.85

ii) The elements of conjugal associations entail features which are not present in sexual slavery. Charging forced marriage under the crime of sexual slavery risks reducing the harm to the sexual elements of the crime.86_{While both offences entail sexual acts, forced marriage includes} sexual intercourse and “conjugal duties” such as child bearing and child rearing and domestic labour (cooking and cleaning). In return, the husband would provide food and protection.87_Both the Appeals Chamber and Judge Doherty utilized the reciprocal relationship to establish a distinction between forced marriage and slavery. The Prosecutor to the ICC has chosen a different path in the case against Dominic Ongwen. Forced marriage is charged under both the crime of “other inhumane acts” and sexual slavery.88_{The Chamber characterized forced} marriage as an “other inhumane act” which differs from the crime of sexual slavery “in terms of conduct, ensuing harm, and protected interests”.89

Concluding remarks

Neither the distinction based on the exclusivity of the relationship nor the distinction based on the reciprocal relationship as indicated by the Appeals Chamber were very persuasive. Even if the perpetrator provides food and protection, an owner-slave relationship between the perpetrator and victim may still exist. Charging forced marriage under the crime of enslavement could arguably avoid the risk of reducing the harm to the sexual and reducing it solely to the imposition of a conjugal status.90

As the crimes of enslavement, sexual slavery and forced marriage consist of overlapping conduct, it is not surprising that Tribunals have conflated the evidence of forced conjugal associations with evidence of the crime of sexual slavery. After the AFRC case and the RUF

85_{Toy-Cronin (2010), p. 569.} 86_{Oosterveld (2011), p. 134.} 87_{AFRC Judgment, para 195.}

88_{Ongwen, Pre-trial Judgment, para. 88-92.} 89_Ibid.

90_{It could also avoid the risk of reinstating a gendered version of international crimes. Prosecutors and Chambers} tend to not consider men as victims of forced marriage or sexual violence, see Bunting (2012), p. 181.

(20)

judgment, confusion between the distinction of the two crimes remains to exist. Based on their research on the experiences of victims of forced marriages in the LRA, Carlson and Mazurana strongly argue against solely characterizing these victims as sexual slaves. They argue that “such a designation ignores the central element of the injustice they have suffered – the forced imposition of the status of marriage and it’s chronic ongoing consequences.”91_While enslavement or sexual slavery may capture harms like abduction, forcible transfer, being reduced to a servile status and forced labour, they do not capture the harm of the conjugal-like relationship with the perpetrator, the child bearing and rearing, and the resulting stigmatization. The focus on the crime should be at its core: the imposition of marital status on the victim in coercive circumstances.

91_{Carlson and Mazurana (2008), p 7.}

(21)

The Elements of Forced Marriage

The ICC considered that the central element of the crime of forced marriage is the imposition of the marriage and the consequences of the imposition, which may have consequences long after the hostilities. The Pre-Trial Chamber in Ongwen held forced marriage can be considered under the crime of “other inhumane acts” as a crime against humanity.92_{A question that may} arise is: what range of conduct can be brought under the umbrella of article 7(1)(k) Rome Statute “other inhumane acts”? As the wording of the clause is rather vague, the next part of the thesis focusses on the crime against humanity of other inhumane acts in order to answer the question if forced marriage fits the crime.

4.1 The chapeau requirement

Crimes against humanity are among the most serious international crimes and demand individual criminal responsibility. The prosecution of these crimes concerns the international community as a whole. Crimes against humanity can occur both during and outside armed conflict. The threshold for an ordinary crime to rise up to the level of a crime against humanity is that it is part of a “widespread and systematic attack”.93_{An “attack” is not limited to the} conduct of hostilities, but also covers the mistreatment of civilians. The contextual elements justify universal jurisdiction for the conduct. These contextual elements are commonly referred to as the chapeau or general requirements. The chapeau requirement encompasses five sub-elements; (i) there must be an attack, (ii) the acts of the perpetrator must be part of the attack, (iii) the attack must be “directed against any civilian population”, (iv) the attack must be widespread and systematic, and (v) the perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack.94_{Proving that the perpetrator had the} required the mens rea over the details of the attack or policy is not necessary, proving the intent to further the attack is sufficient to hold the perpetrator accountable for the conduct.95

The contextual elements in international criminal norms can provide further arguments why recognizing forced marriage as an international crime would not criminalize arranged marriages: these elements generally don’t apply to arranged marriages. It would be difficult to

92_{Ongwen Pre-Trial Judgment, para. 87.} 93_{Art. 7(1) Rome Statute.}

94_{Kunarac et al., Trial Judgment, para. 410-416.} 95_{Elements of Crimes, p.5.}

(22)

argue that arranged marriages fulfil the necessary elements for one of the categories of international crimes i.e.; genocide, crimes against humanity, war crimes and the crime of aggression. As stated above, crimes against humanity require the act to be part of a widespread and systematic attack upon a civilian population. These sub-elements are high thresholds, which would rarely be met outside the context of war. It would require a situation where there is an “attack” on the civilian population, meaning a number of people were involved and behind the attack was some kind of organized plan or policy.96_{The other international crimes over which} the ICC has jurisdiction don’t require much attention to illustrate the distinction. Genocide requires the mens rea to destroy a specific ethnical or religious group, and war crimes require a nexus to an armed conflict, both thresholds that arranged marriages will generally not meet.97

4.2 The residual category of “other inhumane acts”

The category “other inhumane acts” of art. 7(k) Rome Statute was intended to be a residual category. It is inclusive in nature and added to avoid restrictions on the punishments of crimes which are not specifically listed, but which are of comparable gravity to listed crimes of humanity.98_{The advantage of the broad category of other inhumane acts is that the statute is} not rigid and can react to changing perspectives in het international community. In other words, it can prevent impunity based on the letter. However, as the Pre-Trial Chamber of the ICC once noted, to prevent unduly stretching the category of crimes against humanity the category should be interpreted conservatively.99

Because the “other inhumane acts” clause is the residual category of crimes against humanity, charging conduct under the clause is only permissible if the actus reus of the crime does not fit any of the other categories listed in art. 7(a)-(j) Rome Statute. To avoid the clause being used as a “catch-all” category, there are three specific requisites to inhumane acts: i) the perpetrator must have inflicted great suffering, or serious physical or mental injury, by means of an inhumane act, ii) the act was similar in nature and gravity to any of the other acts in article 7, paragraph 1, and iii) at the time of the offence, the accused had the intent to inflict serious harm.100_{The perpetrators specific intent is not decisive in the determination if conduct is}

96_{Kunarac et al., Appeal Judgment, para 94.} 97_{Arts. 6 and 8 Element of Crimes.}

98_{Kupreskic et al, Trial Judgment, para 563.}

99_{Muthaura et al., Confirmaton of Charges, para. 269.}

(23)

considered a crime under other inhumane acts, the intent to inflict great suffering results in criminal liability.101_{Conduct that has been found of similar gravity to the listed crimes against} humanity by International Tribunals include bodily harm, confinement under inhumane conditions, forced transfer, forced labour and civilians being used as human shields.102

To determine if an act was sufficiently serious in nature and gravity, Tribunals have taken into account factors like the nature of the act, the context in which the act occurred and the individual circumstances of the victim.103_{The question what conduct can be charged under the other} inhumane acts clause was answered by the ad hoc Tribunals. In the Kupreskic case, the ICTY reasoned that following the ejusem generis rule of interpretation, a range of actions similar to those enumerated would be covered by the ‘other inhumane acts clause’. This is be contrary to the principle of specificity.104_{The Trial Chamber considered that interpreting the other} inhumane acts category according to this principle lacks “precision and is too general to provide a safe yardstick.”105_{The Chamber held that the legal parameters for the content of the category} should be identified, before applying the ejusdem generis interpretation to assess the gravity of the criminal act.106_{According to the Chamber, the legal parameters of other inhumane acts} could be identified in international standards on human rights. Depending on the circumstances of the case, if a widely recognized human right has been infringed and fulfils the chapeau requirement, it amounts to a crime against humanity.107

This statement was later nuanced by the same Court in their Stakic Judgment. But, as Haenen points out, the ICC could use human rights law as a yardstick for determining the scope of the ‘other inhumane acts clause’. Her argument is based on four considerations:

i) the Rome Statute explicitly states the Courts interpretation should be consistent with human rights documents,

ii) since crimes against humanity are based on human rights violations, human rights documents could be used to identify conduct which can be included in of the residual category,

101_{Delalic et al, para 1039-1040.}

102_{Ibid, paras. 554-558. Karadzic, Trial Judgment, para. 525} 103_{Kordic, Appeals Chamber, para 117.}

104_{Ejusem generis is Latin for “of the same kind”. It can be used to interpret statutes with general or broad} provisions.

105_{Kupreskic, para 564. Stakic, Trial Judgment, para 719.} 106_{Kupreskic, para. 566.}

(24)

iii) the ILC in their early Draft Code of Offences against the Peace and Security of Mankind used the term “systematic or mass violations of human rights” for acts now enumerated in art. 7(a)-(k) Rome Statute and,

iv) as crimes against humanity no longer require a nexus to an armed conflict, the identification of conduct that rises up to the level of crimes against humanity is no longer limited to humanitarian law.108

According to Haenen, human rights violations can thus help identify conduct that has been condemned by the international community and may result in criminal responsibility.109_After identifying the conduct, the ejusdem generis rule plays a role in determining if a violation is of similar gravity to the other listed crimes.

4.3 Defining the Elements of Forced Marriage

If forced marriage is to be considered as a crime under other inhumane acts, evidence must show that the forced conjugal relations were part of a widespread and systematic attack. The perpetrator knew the conduct was part of, or intended it to be part of, an attack against the civilian population. Whether it was to control reproduction for a socialist revolution or to support rebel forces, in the proceedings before ICTs in which forced marriage was charged, the marriages were part of a policy or organized plan. Next to the general requirement of crimes against humanity, evidence must show that forcing a conjugal relation or union upon a person inflicted serious mental or physical injury and is of similar to the other crimes against humanity listed under art. 7(1)(a)-(j) in the Rome Statute. Moreover, the Prosecutor needs to prove that the conduct has distinct elements, elements that cannot be subsumed within the other crimes: a requirement that the ad hoc Tribunals have struggled with in their previous case law.

The AFRC Appeals Chamber held that the central element of forced marriage is the imposition of marriage by coercion or in coercive circumstances. Whether the marriage is considered valid is not of importance. While forced marriage may share certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, it also includes distinguishing factors. Two elements specific to forced marriage have been identified by the AFRC Appeals Chamber: (i) the non-consensual conferral of the status of “wife” or “marriage” by the perpetrator, through force or threat of force or by taking advantage of the overall coercive circumstances, resulting

108_{Haenen (2014), p. 166.} 109_{Ibid, pp. 167-168.}

(25)

in both physical and psychological damage to the victim, (ii) the harm caused by the duties associated to marriage such as regular sexual acts, child bearing and child rearing and domestic labour.110

Concluding Remarks

The Trial Chamber of the SCSL rejected the count of forced marriage, in their view there was no evidence to support the claim that the sole conferral of the status of wife causes significant mental harm and social injustice.111_{The Appeals Chamber, however, found ample evidence of} mental and physical harm as a consequence of the conferral of the status of wife. The exclusivity of the union resulted in particular forced labour and the status of “wife” resulted in long term mental harm as a consequence of the social stigma of being associated with the perpetrator of egregious acts.112_{The involuntary conferral of the status of marriage inflicts great suffering.} The victims are forced into long-term relationships with persons who the victims often fear. Next to that, they are subjected to the control of the perpetrator and deprived of the internationally recognized human right to consent to marriage.

By categorizing the experiences of the “bush wives” under sexual slavery, the AFRC Trial Chamber shelved the crime under a label that is too limited to characterize the totality of the conduct and harms of forced marriage. By identifying the experiences of victims of forced marriages as solely a sexual violation, Tribunals risks reducing the experience of women during wartime situations to the sexual elements.113_{The Chamber of the ICC reinforced the finding of} the AFRC Appeals Chamber and held: “forcing someone to serve as a conjugal partner, i.e. forcing someone to perform duties that are associated with duties within a marriage and imposing the social status of the perpetrator’s wife is, per se an act of similar gravity as the listed crimes under article 7(1)”.114

110_{AFRC, Appeals Judgment, para 195.} 111_{AFRC, Trial Judgment, para. 710.} 112_{Ibid, para 199.}

113_{Oosterveld (2011), p. 134.} 114_{Ongwen, Pre-Trial Chamber,}

(26)

Prosecuting Forced Marriage before the ICC

The legality principle, known as the principle of nullum crimen sine lege, is one of the fundamental principles of criminal justice. The principle entails that no one shall be punished for conduct that was not criminalized at the time of commission. One of the goals of this principle is legal certainty: it must be clear to the perpetrator what behaviour is criminal at the time of the offence. It is further intended to avoid arbitrary criminal proceedings for minor or obscure offences. In most modern legal systems, the judiciary can only convict alleged criminals of codified or recognized criminal conduct.115_{The Statute of the respective Court} determines the subject-matter jurisdiction of the International Tribunals. The Rome Statute enumerates the sources of law which may be applied by the ICC and explicitly addresses the legality principle.116_{This chapter examines whether the crime of forced marriage under the} category of “other inhumane acts” can withstand nullum crimen scrutiny.

5.1 The principle of legality

The principle of legality is founded on four basic notions: nullum crime sine lege scripta, certa,

praevia and stricta: the offence must exist in written law and the physical act, the actus reus of

the crime, should be strictly construed.The law must have entered into force at the time of commission (the prohibition of retroactive punishment) and the definition of the crime may not be extended by analogy. 117_{The prohibition on analogy, which is linked to the principle of} non-retroactivity, serves as a restraint on the interpretation of customary law and statutory provisions. It was intended by the drafters of the Statute to bar individual criminal responsibility for substantially new crimes.118

The nullum crimen principle is part of customary international law and is enshrined in the ICCPR.119_{The principle is not as rigid in international criminal law as in most civil law} countries. An important reason for a more lenient approach is that there is no complete system in international criminal law - an international legislator who proscribes criminal norms and definitions does not exist. Like any treaty provision of international law, codification of criminal law in a Statute is the result of negotiations between State Parties.

115_{Lincoln (2011), p. 137.}

116_{Arts. 21(1) and 22 Rome Statute.} 117_{Lamb (2002), p. 733.}

118_{Ibid, p. 753.} 119_{Art. 15(1) ICCPR.}

(27)

The Statutes thus address the subject-matter jurisdiction for the judiciary. The power of International Tribunals to address crimes is limited to a list that is understood by the international community as “the most serious crimes”. Which other sources of law may be applied depends on the Statute of the Court and statements made during the formation of that Tribunal. During the formation of the ICTY, the Secretary-General stated that the Tribunals jurisdiction “is limited to the application of the statute and rules of international humanitarian law which are beyond any doubt part of customary law”.120_{The jurisdiction of the SCSL} extended to “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean Law.”121_{The jurisdiction of these courts was thus} intended to be limited to customary authorities of international humanitarian and criminal law, such as the Geneva Conventions and the Charter of the International Military Tribunal.

5.2 Customary law and general principles of law

Beside the crimes enumerated in the Statute, judges have identified criminal norms arising from customary law and general principles of the laws of civilized nations. As customary law arises from a general practice accepted as law, codification often comes after the recognition of a law of custom. The requirements of lex scripta (no crime without written law) thus often does not prevent prosecution for international crimes, a direct consequence of the role customary law and international criminal law. 122_{In practice, this resulted in the prosecution of crimes before} International Criminal Tribunals which are not explicitly codified in the Statutes, but are instead based on customary norms of international law. In the view of the ad hoc Tribunals, the nullum

crimen principle is not infringed if the perpetrator could reasonably foresee that the conduct

was prohibited by a rule arising from customary law (foreseeability). 123_{The ICTY convicted} the accused of crimes contained in common article 3 of the Geneva Conventions in Delalic et

al. and held:

“It is undeniable that acts such as murder, torture, rape and inhuman treatment are criminal according to "general principles of law” recognised by all legal systems. […] The purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to

120_{Report of the Secretary-General pursuant to Resolution 808, para 34.} 121_{Art. 1(1) SCSL Statute.}

122_{This broad interpretation of international criminal law is accepted in civil law countries, see e.g. additional} art. IX Dutch Constitution, which recognizes an exception to the nullum crimen principle for international crimes.

(28)

contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment.”124

Alleged perpetrators may not hide behind the codification of particular conduct. A second rationale for a less stringent approach to the nullum crimen principle is that the Statutes of ICTs include broad labels of crimes. As a result of the broad labels of crimes with often unknown elements, some form of judicial law-making is unavoidable in international criminal law. For example, the ICTR held that it needed to define the crime of rape.125_{When the Defence in the} 002/01 case argued there was a violation of the nullum crimen principle the ECCC stated: “as

to foreseeability, it is sufficient that the accused was able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision”.126_The interpretation of the nullum crimen principle by the Tribunals thus gives judges a rather wide discretion in interpreting and applying the law.

5.2 The requirement of strict construction

The nullum crimen principle requires strict construction of the definition of a crime: it must be sufficiently clear which acts are included in other inhumane acts in the form of forced marriage. The Rome Statute expresses adherence to the principle by stating: “The definition of a crime shall be strictly construed and shall not be extended by analogy, in case of ambiguity the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted”127_{. It is important to remark that even though several national jurisdictions have} established criminal responsibility for forced marriage, there is no definition of forced marriage as a crime in any treaty or Statute of the International Tribunals. 128

There are two approaches to the definition of forced marriage: a narrow approach, which focusses solely on the forced conferral of marital status and a wider approach, which takes into account the conferral of marital status and the acts following the imposition of that status.The advantage of the latter approach is that it recognizes the totality of the multi-layered offence of forced marriage, in a way that separately charging the crimes that occur within the crimes would

124_{Delilac, Trial Judgment, para. 313.} 125_{Zawati (2014) p. 107.}

126_{Case 002/01 Appeal Judgement, para 765.} 127_{Art. 22 (2) Rome Statute}

128_{Some examples are Bolivia, Australia, Singapore, Norway, the Kyrgyz Republic, India and Germany,} Dumbryte (2014), p. 21.

(29)

not.129_{In other words: the wider definition of forced marriage would recognize the crime entails} more than the sum of a collection of charges. Other authors have argued that the preferred definition would focus on the specific act of coercing a marital status upon the victim, including the social stigmatization that results from that status. This narrow approach would prevent crime overlap; it leaves open the possibility of separately charging the crimes within the marriage, such as rape and enslavement. Another benefit is that it prevents forced marriage being used as a veil for criminal offences.130_{As the wide definition incorporates already} recognized international crimes, the alleged perpetrator could hardly argue that individual criminal liability for the conduct was not foreseeable. 131

Both sides have raised question of nullum crimen sine lege. In the AFRC case, the defence argued that the charge of forced marriage violates the principle of strict construction, as it was too vague, and imprecisely defined.132_{The wide definition is not strict construed, as it may or} may not include rape and forced labour. The narrow definition has the advantage that it is in line with the specificity principle.133_{This narrow definition however raised the question if it} could be considered sufficiently grave to amount to a crime against humanity. Next to that, some have argued that the narrow approach would offend the requirement of foreseeability. 134

5.3 Can the crime of forced marriage withstand nullum crimen scrunity?

The compatibility of the crime of forced marriage with the nullum crimen principle has been much debated. Some legal scholars welcomed the decision of the SCSL in the AFRC case.135 Others were concerned with the conceptual difficulties in the crime136_{, while a third branch} stated that the SCSL convicted the accused for an ex post facto crime.137

129_{Scharf and Mattler identified inescapable rape, sexual slavery, torture, forced pregnancy, enslavement as well} as the degradation of the institution of marriage as the constituent elements of forced marriage see Scharf and Mattler 2005, p. 16.

130_{Oosterveld (2011), p. 144-145, Toy-Cronin (2010), p. 577.} 131_{Oosterveld (2011), p. 146, Scharf and Mattler (2005), p. 8.} 132_{AFRC Trial Judgment, para. 34.}

133_{Oosterveld (2011), p.147.}

134_{Particularly in Sierra Leone, and in other cultures in which customary marriages are common, the consent of} the family is important for the marriage, the consent of the wife is not, Oosterveld (2011), p.147.

135_{Frulli (2008).}

136_{Oosterveld (2011), p. 145.}

(30)

The SCSL Appeals Chamber dealt with the compatibility of forced marriage as a crime against humanity with the nullum crimen principle in their judgment, albeit in an unsatisfying way. When charging the crime of forced marriage, the prosecutor made no reference to any legal definition or elements that indicated forced marriage was recognized as a crime in international law at the time. The Prosecutor to the SCSL argued that the conduct characterized as “forced marriage” was grave enough to rise up to the level of an inhumane act. According to the Prosecution, the nullum crimen principle was not violated by bringing forced marriage under the rubric of “other inhumane acts”, because at the material time this category formed part of customary international law. The Appeal Chamber agreed and held that “other inhumane acts” had been recognized as customary international law. According to the Appeals Chamber, the conduct was capable of incurring individual criminal responsibility. Forced marriage in the context of Sierra Leone satisfied the elements of “other inhumane acts”; (i) it inflicted great suffering, (ii) it was sufficiently similar in gravity to the other enumerated acts and, (iii) the perpetrator was aware of the factual circumstances.138

The ECCC, the only other Tribunal that has convicted individuals for forced marriage, did not make any findings to determine the existence of “forced marriage” as a crime and did not formulate a definition. The Camber referred to the description of forced marriage by the SCLSL and assessed whether the conduct as described by the Prosecution rises to the level of an “other inhumane act”.139_{The Court rejected the argument that there was a violation of the nullum} crimen principle due to forced marriage was not an international crime during the Khmer Rouge

regime in 1975-1979. The ECCC held that “the higher the gravity of the crimes, the more likely that an accused would be aware in a general sense that such conduct is punishable”.140 According to the ECCC, specific conduct underlying the crime of “other inhumane acts” needed not be expressly criminalized under international law.141

Since neither the Office of the Prosecutor nor the Chambers of the ICC are obliged to follow the jurisprudence of the other ad hoc Tribunals, it will be interesting to see how the Chambers will reconcile the “new” crime of forced marriage with the principle of legality.

138_{AFRC Appeals Judgment, para 197-198.} 139_{Case 002/02 Trial Judgment, para. 3692.} 140_{Ibid, para. 30.}

Forced Marriage as a Crime against Humanity before the International Criminal Court