AIDP Blog

While international law has made great strides over the past few decades, the serious issue of crimes against women has been largely overlooked by the international law community. This has prompted recent criticism from those who would like the international courts to take a more aggressive stance toward crimes against women. The recent decision of the Special Court of Sierra Leone’s decision to recognize forced marriage as a crime against humanity may be a much needed step in a positive direction for a category of crimes that have experienced some setbacks of late; however, this is dependent on the international community showing a commitment to enforcing this new crime and other crimes where women are victims.

The recent decision might stymie some of the recent criticism of international courts prompted by the ICC’s decision to drop the sexual violence charges in the Democratic Republic of Congo (DRC) case. While the decision to drop these charges was based on problems ensuring witness safety, it has sparked an outcry from human rights groups who feel sexual violence has a lesser place in the hierarchy of punishable crimes. Rape, sexual slavery, and forced marriage have been all too common occurrences in the recent conflicts in the DRC, Uganda, and Sierra Leone, and the international legal community needs to step up and aggressively investigate, support, and prosecute these cases. Otherwise, the message to all women around the world is that despite their inclusion, international courts do not really view these horrendous crimes as grave enough to rise to a level that deserves serious effort.

Now, that the Appeals Chamber of the Special Court for Sierra Leone has reversed the Trial Chamber and included forced marriage on the list of recognized crimes against humanity, the trend might be turning. On the other hand, being on the list of recognized war crimes does not necessarily mean that future courts will choose to prosecute those who commit these crimes. Just as the ICC chose not to prosecute sexual violence charges in the DRC trials, future courts may also choose not to develop cases and prosecute these crimes. No matter how many crimes are recognized, unless violations are aggressively investigated and pursued, there is really no difference.

In the end, what is really needed is a fundamental change in the way international courts view sexual violence and crimes against women. These crimes need to be given the same weight as other crimes against humanity and the cases need to be actively investigated, developed and tried. Only then, can these courts serve as a deterrent to future crimes of this nature. Only then can woman all over the globe feel that justice extends to them.

Under International Criminal Law, the prohibition of “other inhumane acts originated from the Nuremberg Charter (under Article 6.c) to fill any loopholes that may have been created by the enumerated offences. This catch-all phrase was designed as a residual category created to minimize the risk of offenders escaping liability for the unenumerated crimes, as evident in the ICTY judgment of Kupreškić at paragraph 563. The crime of forced marriage was first coined by the founding Chief Prosecutor of the SCSL in 2004 under Art 2(i) of the SCSL statute. The same provisions are found in Art 7(k) of the Rome statute; Art 5(i) of the ICTY statute; and Art 3(i) of the ICTR statute. As a crime against humanity, forced marriage constitutes a consolidated number of acts strung together, in addition to rape, forced impregnation, sexual slavery, and other definitional crimes against humanity identified in the statute; which makes it difficult to delineate its boundaries. The crime of forced marriage has therefore been shaded under other umbrella terms of the crimes against humanity, illustrating that persons committing unlawful acts of such a nature of criminality are bound to be punished. The SCSL has made the crime more defined in this aspect. The press release dated 22 February 2008 reported that the SCSL appeals chamber upheld the sentences of the AFRC leaders in The Prosecutor v Brima, Kamara and Kanu. One of the grounds of appeal of count 8 punishable under Article 2(i), cited by the Prosecutor was the dismissal of the count of forced marriage by the trial chamber. The latter strictly interpreted “other inhumane acts” as encompassing forced marriage and constituting non-sexual acts only; disqualifying acts of a sexual nature altogether. The court further indicated that such a crime was perceived as insignificantly falling within the bounds of sexual slavery. Prosecution strongly defended their position by distinguishing sexual slavery from forced marriage, the primary divide falling on the conjugal duties and non-sexual marital duties imposed on the victim in the same manner as that expected of marriage. The appeals chamber however overturned this view, making it the first international court to reach such a finding, according to the elements of the definition of forced marriage referred to in the case. The door to force marriage as a crime against humanity has therefore been opened. The SCSL acted within its statutory and International bounds, and has therefore set the tone for the crime to be recognized as a crime in its self. This position is fortified by the fact that the crime falls within the confines of the principle of nullum crimen sine lege, which seeks to protect the rights of the accused through recognition of “other inhumane acts” in Article 6.c of the Nuremberg Charter.
The women in the African countries where forced marriage is perpetrated are victims engaged in a void marriage arrangement by virtue of the fact that the union between the two partners is non-consensual. They are victims of the violent political and rebellion upheaval in the same manner that all civilians are victims to other criminal acts in armed conflict. The plight they face is of a different caliber, with the same grave consequences as the other crimes against humanity. Interestingly, the bush wives support the rebel movement, by being trapped into confinement and abuse through the system of the forced marriage, as was prevalent in Angola (under the leadership of Jonas Savimbi of the National Union for the Total Independence of Angola (UNITA)). Despite the war in Angola having ended these women have not shown any signs of their wanting to return to their villages, and proclaim happily married to the rebels. Investigation led to the revelation that they were kidnapped and made rebels’ wives. Regardless of international aid attempting to reintegrate them into their villages, they have rejected doing so. Consent however cannot be the basis upon which forced marriage is criminalized as a crime against humanity, as referred to by Scharf and Mattler in their article, in which they strike a comparison between forced marriage and arranged marriage. The former comprises a systematic attack on the civilian population whereas the latter comprises the aim of creating family relations with a more positive approach than the former. Justice Sebutinde (in Brima, Kamara and Kanu) contributes that, while arranged marriage infringes the provisions in the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), forced marriage is clearly criminal in nature through subjecting the women to forced detention, abduction and for torturous imposed marital conduct which includes conjugal duties and child-bearing amongst others. Forced marriage was systematic in the sense that a system had been put in place on the criteria and manner of capture, under which, if any victims died or escaped, they had to be “replaced” by order from the LRA leaders. The stark contrast between forced marriage and valid marriage is that the former occurs under the auspices of armed conflict with the absence of any aspects of consent whatsoever, through resignation or surrender by the victim to her “captor”. The sanctity of the doctrine of marriage in casu is therefore distorted.
One school of thought argues that connoting forced marriage as crime separate from the ones mentioned in the crimes against humanity will prove to be an onerous task, in light of the fact that the crime is already encompassed in the definitional elements of the crime against humanity. More so, by coining and categorizing crimes with more defined criteria, one is not likely to be in a position to cover the definition in its entirety, creating a likely lacuna in the definitional elements of the law in the future brought about by other circumstances unforeseen to the founders of the crime at this present moment. In a bid to “box” everything, more problems such as that identified above are bound to occur, essentially complicating the legal field more than it should necessarily be. The argument of redundancy is put forward in the appeals chamber decision by the respondents Brima and Kanu.
I respectfully disagree with Scharf and Mattler’s view to some extent in their article, where they state: “In the crime of enslavement, as in sexual slavery, the perpetrator’s control over the victim comes from attaching of the right of ownership to the victim, while in forced marriages the perpetrator obtains control over the victim by attaching the obligations of a spouse to the victim.” Forced marriage does not only constitute the perpetrator’s gaining control over the victim through attaching the obligations of a spouse to the victim, but through perceiving a right of ownership in addition to the aforementioned, with regard to this particular element of the crime. In essence, it is a conglomerate of the two characteristics exuded by the two separate crimes. In a discussion of the crime of forced marriage with one of the leading academics, David Crane; he alluded to the fact that the bush wives were driven like herds from as far as FreeTown to the bushes in the peripheral parts of the country, to become “wives” of the RUF militia. Like cattle, they were branded, through being carved the letters RUF on their bodies and treated like the property of the militia. Any element of humanity in them was extinguished to the very last flame, and they were never recognized as having any rights. According to statistics given by CS Monitor, an estimated number of 1 in every 6 girls in Northern Uganda has been subjected to becoming bush wives and kidnapping by the Lord’s Resistance Army (LRA). The captured women are not only affected physically, but psychologically and morally too, and psychological wounds/ trauma is more difficult to heal than the physical. During the Security Council’s unanimous resolution 1820 of 2008 held on the 19th of June titled: “Security Council Demands Immediate and Complete Halt to Acts of Sexual Violence Against Civilians in Conflict Zones”; the permanent representative of Afghanistan to the United Nations, Zahir Tanin alluded to the fact that women were deliberately targeted during wars, and indicated to forced marriage as being a crime prevalent during such times. One would have thought that more deliberation on the international crime would have been engaged in, which however turned out not so. Only recently have mechanisms been put in place to address sexual violence against women. By women not having a platform from which to base their claims, non ever came forward to report the crime committed against them for redress, which was heightened by the stigma attached to being a victim of the sexual slavery, more so a bush wife. Terming forced marriage as a crime against humanity therefore elucidates a union of international responsibility to protect women against such crimes during times of armed conflict in a bid to removing the stigma attached by supporting them, as alluded to by Donald Steinberg in his article. The stigma attached to a woman who has been raped is negative to the extent that she is deemed unfit for marriage, unless she marries her rapist. The latter act therefore negates the aforementioned view, as it is seen to constitute part of the marriage therefore.

Under International Criminal Law, the prohibition of “other inhumane acts originated from the Nuremberg Charter (under Article 6.c) to fill any loopholes that may have been created by the enumerated offences. This catch-all phrase was designed as a residual category created to minimize the risk of offenders escaping liability for the unenumerated crimes, as evident in the ICTY judgment of Kupreškić at paragraph 563. The crime of forced marriage was first coined by the founding Chief Prosecutor of the SCSL in 2004 under Art 2(i) of the SCSL statute. The same provisions are found in Art 7(k) of the Rome statute; Art 5(i) of the ICTY statute; and Art 3(i) of the ICTR statute. As a crime against humanity, forced marriage constitutes a consolidated number of acts strung together, in addition to rape, forced impregnation, sexual slavery, and other definitional crimes against humanity identified in the statute; which makes it difficult to delineate its boundaries. The crime of forced marriage has therefore been shaded under other umbrella terms of the crimes against humanity, illustrating that persons committing unlawful acts of such a nature of criminality are bound to be punished. The SCSL has made the crime more defined in this aspect. The press release dated 22 February 2008 reported that the SCSL appeals chamber upheld the sentences of the AFRC leaders in The Prosecutor v Brima, Kamara and Kanu. One of the grounds of appeal of count 8 punishable under Article 2(i), cited by the Prosecutor was the dismissal of the count of forced marriage by the trial chamber. The latter strictly interpreted “other inhumane acts” as encompassing forced marriage and constituting non-sexual acts only; disqualifying acts of a sexual nature altogether. The court further indicated that such a crime was perceived as insignificantly falling within the bounds of sexual slavery. Prosecution strongly defended their position by distinguishing sexual slavery from forced marriage, the primary divide falling on the conjugal duties and non-sexual marital duties imposed on the victim in the same manner as that expected of marriage. The appeals chamber however overturned this view, making it the first international court to reach such a finding, according to the elements of the definition of forced marriage referred to in the case. The door to force marriage as a crime against humanity has therefore been opened. The SCSL acted within its statutory and International bounds, and has therefore set the tone for the crime to be recognized as a crime in its self. This position is fortified by the fact that the crime falls within the confines of the principle of nullum crimen sine lege, which seeks to protect the rights of the accused through recognition of “other inhumane acts” in Article 6.c of the Nuremberg Charter.

The women in the African countries where forced marriage is perpetrated are victims engaged in a void marriage arrangement by virtue of the fact that the union between the two partners is non-consensual. They are victims of the violent political and rebellion upheaval in the same manner that all civilians are victims to other criminal acts in armed conflict. The plight they face is of a different caliber, with the same grave consequences as the other crimes against humanity. Interestingly, the bush wives support the rebel movement, by being trapped into confinement and abuse through the system of the forced marriage, as was prevalent in Angola (under the leadership of Jonas Savimbi of the National Union for the Total Independence of Angola (UNITA)). Despite the war in Angola having ended these women have not shown any signs of their wanting to return to their villages, and proclaim happily married to the rebels. Investigation led to the revelation that they were kidnapped and made rebels’ wives. Regardless of international aid attempting to reintegrate them into their villages, they have rejected doing so. Consent however cannot be the basis upon which forced marriage is criminalized as a crime against humanity, as referred to by Scharf and Mattler in their article, in which they strike a comparison between forced marriage and arranged marriage. The former comprises a systematic attack on the civilian population whereas the latter comprises the aim of creating family relations with a more positive approach than the former. Justice Sebutinde (in Brima, Kamara and Kanu) contributes that, while arranged marriage infringes the provisions in the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), forced marriage is clearly criminal in nature through subjecting the women to forced detention, abduction and for torturous imposed marital conduct which includes conjugal duties and child-bearing amongst others. Forced marriage was systematic in the sense that a system had been put in place on the criteria and manner of capture, under which, if any victims died or escaped, they had to be “replaced” by order from the LRA leaders. The stark contrast between forced marriage and valid marriage is that the former occurs under the auspices of armed conflict with the absence of any aspects of consent whatsoever, through resignation or surrender by the victim to her “captor”. The sanctity of the doctrine of marriage in casu is therefore distorted.

One school of thought argues that connoting forced marriage as crime separate from the ones mentioned in the crimes against humanity will prove to be an onerous task, in light of the fact that the crime is already encompassed in the definitional elements of the crime against humanity. More so, by coining and categorizing crimes with more defined criteria, one is not likely to be in a position to cover the definition in its entirety, creating a likely lacuna in the definitional elements of the law in the future brought about by other circumstances unforeseen to the founders of the crime at this present moment. In a bid to “box” everything, more problems such as that identified above are bound to occur, essentially complicating the legal field more than it should necessarily be. The argument of redundancy is put forward in the appeals chamber decision by the respondents Brima and Kanu.

I respectfully disagree with Scharf and Mattler’s view to some extent in their article, where they state: “In the crime of enslavement, as in sexual slavery, the perpetrator’s control over the victim comes from attaching of the right of ownership to the victim, while in forced marriages the perpetrator obtains control over the victim by attaching the obligations of a spouse to the victim.” Forced marriage does not only constitute the perpetrator’s gaining control over the victim through attaching the obligations of a spouse to the victim, but through perceiving a right of ownership in addition to the aforementioned, with regard to this particular element of the crime. In essence, it is a conglomerate of the two characteristics exuded by the two separate crimes. In a discussion of the crime of forced marriage with one of the leading academics, David Crane; he alluded to the fact that the bush wives were driven like herds from as far as FreeTown to the bushes in the peripheral parts of the country, to become “wives” of the RUF militia. Like cattle, they were branded, through being carved the letters RUF on their bodies and treated like the property of the militia. Any element of humanity in them was extinguished to the very last flame, and they were never recognized as having any rights. According to statistics given by CS Monitor, an estimated number of 1 in every 6 girls in Northern Uganda has been subjected to becoming bush wives and kidnapping by the Lord’s Resistance Army (LRA). The captured women are not only affected physically, but psychologically and morally too, and psychological wounds/ trauma is more difficult to heal than the physical. During the Security Council’s unanimous resolution 1820 of 2008 held on the 19th of June titled: “Security Council Demands Immediate and Complete Halt to Acts of Sexual Violence Against Civilians in Conflict Zones”; the permanent representative of Afghanistan to the United Nations, Zahir Tanin alluded to the fact that women were deliberately targeted during wars, and indicated to forced marriage as being a crime prevalent during such times. One would have thought that more deliberation on the international crime would have been engaged in, which however turned out not so. Only recently have mechanisms been put in place to address sexual violence against women. By women not having a platform from which to base their claims, non ever came forward to report the crime committed against them for redress, which was heightened by the stigma attached to being a victim of the sexual slavery, more so a bush wife. Terming forced marriage as a crime against humanity therefore elucidates a union of international responsibility to protect women against such crimes during times of armed conflict in a bid to removing the stigma attached by supporting them, as alluded to by Donald Steinberg in his article. The stigma attached to a woman who has been raped is negative to the extent that she is deemed unfit for marriage, unless she marries her rapist. The latter act therefore negates the aforementioned view, as it is seen to constitute part of the marriage therefore.

“Forced” marriages and “arranged” marriages**

Many cultures in Africa and Asia incorporate some form of arranged marriage into their respective cultures. Arranged marriages work, more or less, in the following manner. A single man and single woman are both “ready” to get married, so the parents of each side spread the word within the community. Shortly thereafter, both sides area introduced to a few prospective grooms/brides, and some pair will agree to get married. Other cultures may deicide from the child’s birth who that child will marry. There are of course many different concepts of arranged marriages.

The important underlying fact with arranged marriages is that women in most cases do not have much freedom in deciding who they will marry. Also in many of these cultures, a woman who divorces her husband has virtually no chance of being married again, whereas the man can generally remarry. A woman who is pressured by her family and society to follow customary practices, and go through with an arranged marriage with the knowledge that this is the one and only time she can get married, has essentially been forced into a marriage. Though arranged marriages sound peaceful – since the parents handle most of the communications– there is a lot of violence that goes on behind closed doors. Arranged marriage cultures are very male dominant, and the occurence domestic violence is very high. Once a woman is married, she “belongs” to the man’s side of the family, and the woman’s parents typically will not get involved.

This is not the “forced marriage” which Professor Scharf speaks of. Forced marriage here means taking a woman against her will, a lot of times at gun point, to be the wife of a soldier. It is also true that many of these women are very young, and many may also have been sold into marriage because their families do not have the financial resources to support the child. True, these women are house maids and sex slaves. True, many of these women probably get beaten. But this is true of a lot of arranged marriage households. The difference between “arranged” and “forced” then is that with the former, the parents make matrimonial decisions for their children, where as in the latter, a man with a gun does. Targeting forced marriages will overlook many other situations in which women are kept subservient, for example where many of these countries’ legal systems view men as having many rights, and women having very few (as this falls in line with arranged marriage households). The International legal community will not be able to implement even a deterrent effect if the legal systems of the countries do not acknowledge these wrongs against women.

The ultimate goal of the international legal community should be to end suffering, not to end certain instances of suffering. In a community where arranged marriages, and the problems for women that ensue, are wholly accepted, it will be difficult to propose a change which calls for respecting women. The ICC and other tribunals will not be able to solve the overall problem without pushing for an ideological change in the world. The new ideology should start at the basic level, that men and women are equal, at least in the legal sense if not the social sense yet. This creates problems in itself of course, as Western legal authorities push for this change, the change will be geared to Western ideologies, not necessarily what is best for the nationals of these various countries. Furthermore, most countries will take great insult to Westernization of their cultures, and will fight back even more to defend it.

I support the ICC’s push for criminalizing rape, forced marriage, etc., but I do believe that more time and research needs to be put into the sociological and psychological dilemmas facing women in these cultures because pushing for a change without first understanding the whole problem leads to a path of failure.

** Please note that many arranged marriages work out for the best, but many also do not. Furthermore, I am Asian-Indian, so I understand arranged marriages, and the problems associated with it. If there are different understandings of arranged marriages, please comment.

It seems unnecessary to include “forced marriage” as a separate offense for two reasons. First, it creates an undue burden on the prosecution to prove a crime that they themselves would create with the intention of accomplishing very noble political goals, yet end up finding themselves, among other things, frustrated in proving a very essential element: marriage. Second, the charge would be redundant because many of the elements that comprise the prima facie case for forced marriage are already crimes against humanity in and of themselves.

Sidestepping the potential nullum crimen sine lege and ex post facto issues that could arise from the creation of this new crime, it would be difficult to make the case for forced marriage because these acts were not marriages to begin with. It seems as though one of the problems inherent in defining this crime is the whole concept of there being a marriage. According to the article by Scharf and Mattler, the marriage process can be very complex in Sierra Leone and the women who were abducted and forced into these “marriages” rarely engaged in a consensual ceremony or any other type of ritual that would be recognized under the laws of Sierra Leone as constituting a legitimate marriage. Rather, women were married upon the single act of a soldier stating that they were their wives and subsequently forcing them to perform most functions associated with marriage. Being that this was the case, one could conclude that these “bush wives” were never legitimate brides and therefore it would be an undue burden in proving a crime called “forced marriage” where the arrangement was never legally carried out.

There are already crimes that are well delineated in international law, either conventional or customary, that individuals who have engaged in forced marriage can be charged under without creating a new crime. For example, forced marriage is already a recognized international principle under the umbrella of slavery. As defined in the Slavery Convention of 1926 and expanded upon by the UN’s Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, slavery is the status or condition of a person over whom any or all powers related to ownership are exercised (226 U.N.T.S. 3.). Article 1(c) of The Supplementary Convention in 1957 expanded this definition to apply to women who were being treated as chattel by their family, husbands, or other third party. This provision basically states that the nonconsensual transfer or exercise of power over a woman, specifically in the context of marriage, would be considered slavery. Moreover, As Kalra states in “Forced Marriage: Rwanda’s Secret Revealed,” many of the acts committed upon victims of forced marriage such as rape, torture, enslavement, sexual slavery, and forced pregnancy, are already recognized as crimes against humanity. In sum, perpetrators of forced marriage will not escape justice due to the absence of that specifically named crime because there is a plethora of criminal activity for which they could be charged that would lead to their punishment, which would in turn ensure retribution for their victims.

Excluding the crime of forced marriage would help avoid undue burdens and redundancies. It is difficult to prove the crime because the marriage has never legitimately taken place. Also, there is no need to prove the crime if the elements already constitute crimes against humanity for which the perpetrators could be convicted.

Forced Marriage Is Not an “Other Inhumane Act”

In defense of the Special Court for Sierra Leone’s creation of the new crime of forced marriage, Professor Scharf and other proponents contend such a development is necessary because the constituent crimes currently enumerated in the Court’s Statute and accepted as part of international law – rape, enslavement, torture, sexual slavery, and forced pregnancy – do not fully encompass the experience of a victim of forced marriage. The argument is essentially that the act of forced marriage is more than the sum of its parts, and thus must be recognized as a discrete crime, punishable under the “other inhumane acts” language of Statute. (See Scharf, Michael and Mattler, Suzanne, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity”. Case Legal Studies Research Paper No. 05-35 Available at SSRN: http://ssrn.com/abstract=824291)

I fully agree that forced marriage is an inhumane act, but reject applying the qualifying word “other.” I do not believe there is any justification for treating it as a crime of its own.

Scharf’s primary reason for distinguishing forced marriage from the other enumerated crimes is that, unlike sexual slavery for instance, it is an attack on the institution of marriage and uses the societal pressures surrounding marriage to keep the victim under the thumb of the oppressor. He rightly contends that this is an element missing from the crime of sexual slavery. But this argument misses the point that these situations aren’t marriages at all. They are invalid because they do not conform to any of the three types of marriage recognized in Sierra Leone (religious, civil, and customary) and continue without the consent of one of the parties. If these are not generally recognized as marriages at all, then it is difficult to see how it is an attack on the institution of marriage.

Scharf further argues that forced marriage is different from sexual slavery because it relies on typical marital obligations to keep the “wives” in check:

“[T]he constraint is accomplished not through attachment of right of ownership, but through the enforced, nonconsensual attachment of the rights and privileges of marriage. Wives compelled into forced marriages are not ‘owned’ as the victims of sexual slavery are, but are still inextricably bound to their captors by the ties of matrimony and the obligations flowing from it that the perpetrator foists upon the victim.”

But this argument is belied by the fact that these women were kidnapped, held at gunpoint, and branded like steer. These are the marks of slavery, not marriage. If these women were not owned, then how else can their condition be described? It is true that the victims also experienced pressures stemming from typical marital obligations, but I don’t think that this amounts to anything criminal in itself. Employing societal pressures to keep someone in a marriage may be abhorrent, but it should not be deemed criminal, and although the creation of the crime of forced marriage does not actually make such conduct criminal it does cast undue suspicion on it by including it as an element of the crime. (Indeed, though we’ve been assured it won’t happen, it is not an especially large leap from this to condemning perfectly legal arranged marriages on the same grounds.) Furthermore, since all cases of forced marriage also involve actual physical coercion, in addition to societal pressure, the inclusion of using societal pressure as an element of the crime is unnecessary.

As Scharf has pointed out, in creating the crime of sexual slavery the drafters of the Rome Statute were addressing a lacuna in the law and “endorsed the new classification of crime because it more accurately described the conduct than enslavement or rape.” But forced marriage doesn’t more accurately describe the situation of bush wives – indeed it unnecessarily confuses the issue by making the presumption that exploiting the societal pressures surrounding marriage is, if not criminal, at least suspect. The creation of this new crime is thus unjustified and, rather than adding precision to the law, only muddies the water.

On 20 June 2007, the Special Court for Sierra Leone, SCSL, found Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu guilty of war crimes and crimes against humanity including murder, rape, sexual slavery and conscripting child soldiers. But the trial judges hold it is unnecessary to treat forced marriage as a crime distinct from the recognized crimes against humanity of rape, forced prostitution, and sexual slavery, and threw out the charges. Such charges had never before been tried at an international tribunal.
During the long period of prosecution, prosecutors and many relevant academics insisted that the forced marriage is a unique crime and it would not be duplicitous to proceed with charges of forced marriage in light of the existence of similar crimes against humanity of enslavement and sexual slavery. Because the women were held so long under threat of harm or death, the chief prosecutor David Crane said, the crime differs from rape or other war crimes prosecuted at other courts. The chief prosecutor Stephen Rapp also appealed this decision on August 2 2007.
The forced marriage should not be viewed unequivocally as a sex offence. In the history, women who were kidnapped and forced into sexual slavery for troops during the Japanese occupation of Korea and China in World War II are often referred to as “comfort women”, but the forced marriage of “bush wives” in Sierra Leone was unique. It should be subjected as a new crime. Here are some reasons,
In the first place, the forced marriage has its unique nature, and its content is far more than the sexual slavery of the crimes against humanity. Victims were conscripted into a marital relationship, with all that that entails, which is more than being a sexual slavery or a rape victim.
According to Rome Statute, the elements of sexual slavery are:
“1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”

“Sexual slavery and forced marriage share elements 3 and 4 as these define them as crimes against humanity.”
First, for the first element, it highlights the ownership. The constraint of the forced marriage is accomplished not through attachment of right of ownership, but through the enforced, nonconsensual attachment of the rights and privileges of marriage. The perpetrator normally expected within a marital relationship, including sexual congress, loyalty, housework labor, child bearing, child rearing, etc. Although there are not any truth and equality in this relationship, the marriage relation changes the rights and duties owed to the individuals within the marital relationship as well as extrinsic institutions.
Second, the second element of sexual slavery, it is a subject of sexual autonomy and the sexual violence that inheres in the crime, which distinct between sexual slavery and forced marriage. One of the characters of forced marriage is that the victim is forced to become her captor’s sexual partner and is repeatedly raped as one of the marital privileges. “This is especially significant in Sierra Leone, where there is no recognition of marital rape.” On the other hand forced marriage is not only a violation of women’s sexual autonomy, but also the severe denial of the women’s reproductive autonomy, as well as her marriage with someone of her or her family’s choice. Defining such far-reaching content as sexual slavery is too narrow and fails to address the other substantial, non-sexual elements of the crime. Thus, forced marriage should be distinguished from sexual slavery, and capture other vital elements in women’s life.
In the second place, the damage for the victims are heightened would remain by the fact that many women have been ostracized by their communities since the end of the war. Upwards of 60,000 women were made victim to sexual violence in Sierra Leone during the more than ten-year’s war. Thousands of women were abducted during the war and forced into marriage with men who had murdered their families. Women endured unimaginable suffering as their most fundamental human rights were stripped away though rape, violence, torture, forced pregnancy, and forced labor. While, perpetrators used the privileges attaching to a protected institution to bind these victims to them, to the extent that many victims of forced marriage remain “married” to their “husbands” today.
In the third place, the forced marriage is necessary to be subjected as a crime, because it has become a extensive practice and typical crime. Rape and sexual slavery feature in cases at the ICC, including the insurgency in Uganda, the conflict in the Darfur region of Sudan, the failed military coup in the Central African Republic and the inter-ethnic. Despite this leap forward in the recognition of sexual war crimes, international prosecutions of such issues have only occurred in the recent past at the ICTY and ICTR. The Appeals Chamber actually have acknowledged and convinced that “society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population….”
I fully support Professor Michael Scharf’s opinion in his early work of Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity. It is indeed effective achievement that the forced marriage have been recognized and prosecuted as the unique crime in the international law. That is also the right way that the court is obliged for the victims, to fulfill the justice and the truth.

“Forced marriage” must be differentiated from crimes of a purely sexual nature or enslavement with a sexual element. Hopefully, this precedent will be applied by other international criminal courts. Forced marriage is a crime unto itself and while Scharf and Mattler identify the similarities to what the call its “constituent acts” the crime supersedes definition by mere enumeration of similar inhumane acts. The crime’s effects have a uniquely long duration. The effects extend from one actus reus to fundamentally and permanently alter the identity and personhood of the victim by subverting their self-image and ability to leave the “marriage.” While the acts of rape, sexual slavery and domestic enslavement are quite similar in some respects, as Sharf and Mattler argue, the drafting and use of child soldiers is perhaps just as relevant a comparison for the purposes of defining and recognizing ‘forced marriage’ as a distinct crime against humanity under the “other inhumane acts” statutory category.
The brain washing of child soldiers and the use of drugs to control them is very similar to the process of ‘marrying’ a bush wife. The use of drugs is documented in both cases. With the branding, abuse and the very use of terms like “marriage” and “wife” the RUF used long standing cultural norms to change the way their captive “wives” thought of themselves. The greatest difference between enslavement, sexual slavery or rape, and forced marriage is that in the former three crimes the victim is able to categorize themselves chronologically as a victim and set the crime in the past tense. With a nonconsensual marriage there is no cultural norm for the ending of the state, the victim can remain a “wife” in their own mind permanently. The victimization of forced wives extends beyond the period of physical domination. A child soldier may forever be, in their own mind, a member of the RUF in Sierra Leone or LRA in Uganda. Notably, forced wives have been known to stay with their ‘husbands’ after the physical ability to maintain enslavement has ceased.
Victims of domestic abuse in developed nations frequently remain married and sometimes refuse to press charges against their spouses even in cases of physical and sexual abuse. However, in those cases the marriage was voluntary and in the case of forced marriages neither the spouse nor their family consented to the union. Despite the documented abuses sexual and otherwise endured by ‘bush wives,’ they continue to consider themselves to be married. Without ever having consented they believe themselves subject to the societal and cultural expectations of marriage.
Forced wives find their entire identities changed, their very humanity assaulted and many do not believe they can leave their husbands even after the physical enslavement no longer binds them. Forced marriage is distinct from other crimes against humanity and its widespread use and the way it can fundamentally and permanently damage the psyche of its victims practically requires that it be recognized as a crime separate from those previously considered to be its elements. It is not the sum of the list of lesser crimes, even if it is comparable to them, it is, like the recruitment and brainwashing of child soldiers, a crime which affects large portions of populations in a unique and devastating way.

Rethinking Forced Marriage

Beginning in the 18th century, when racially motivated slavery evolved from indentured servitude, American slaves were looked at as property. Within this paradigm of property-like ownership, masters would often rape their slaves in order to maintain the workforce. The offspring of this unthinkable crime were raised by their mothers and legally classified accordingly. In 1662, Virginia passed a slave code reading, “Whereas some doubts have arisen whether children got by any Englishmen upon a Negro shall be slave or Free, Be it therefore enacted and declared by this present Grand assembly, that all children born in this country shall be held bond or free only According to the condition of the mother.” Arguably, the rape of black slaves in the United States constituted a crime of dimensions distinct from slavery, what is now international referred to as sexual slavery. The Special Court for Sierra Leone has attempted to create a new crime based upon a synthesis of several international crimes (including slavery and sexual slavery) alleging that because of its effects, the combination of crimes constitutes something graver than the individual crimes. However, there was at the outset of abolitionism, and remains, no notion that sexual slavery and subsequent caretaking constitutes a new and unique crime outside of the nature of slavery (and arguably sexual slavery) itself. In other words, there is nothing distinct about the combination of slavery and what we would now refer to as sexual slavery which, by virtue of its fusion, results in a new and distinct crime.

I first became aware of the Special Court for Sierra Leone’s newly created crime, “Forced Marriage” in a course with one of its architects, Former Chief Prosecutor for the Special Court for Sierra Leone, Professor David Crane. In a conversation with Professor Michael Scharf, the author of this blog entry, he explained, using short and precise Aristotlian “Metaphysics,” that his support for the new designation was that the aggregate constituted more than the sum of its parts.

The relevant part of the Statute of the SCSL provides the court jurisdiction over crimes against humanity (“crimes as part of a widespread or systematic attack against any civilian population” Art. 2) including enslavement (Art. 2(c)), imprisonment (Art. 2(e)), torture (Art. 2(f)), Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence (Art. 2(g)) and other inhumane acts (Art. 2(i)). It appears clear from the language that a wide range of crimes, covering almost all conceivable systematic crimes against the civilian population are included. In Professor Scharf’s article titled, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity,” he refers to a decision of the International Criminal Tribunal for Yugoslavia, Prosecutor v. Kupreškic. The court found that Article 5 of the ICTY Statute, which contains identifical other inhumane acts language, was included as a catch-all for human ingenuity. Professor Scharf’s article lists the scope of the newly founded crime. I will interject a recommendation for which already-enumerated-crime in the SCSL Statute covers each element. 1) The women were captured against their will. Traditionally, this appears to fall under the standard definition of imprisonment at the least and enslavement at the most. 2) They are forced to assume all the obligations of a wife without the legal benefits. Professor Scharf clarifies that such obligations include cooking, cleaning, caring for their captor-husbands and forced sex. This appears to fall under slavery, sexual slavery and arguably torture which many international documents state exists where there is severe physical or mental suffering. 3) If torture was not previously certain, the women are also branded, beaten and cut. 4) Many women became pregnant and were forced to bear and rear the children clearly falling within the confines of traditional slavery, sexual slavery and forced pregnancy.

Professor Scharf believes this crime extends past the already enumerated crimes insofar as the normal marriage traditions in the Sierra Leonean culture require involved ceremonies and constitute a sacred union in their culture. The “forced marriage” therefore, stifles the ability to pursue another marriage. The very basis of slavery, if it is to be properly distinguished from imprisonment, is that it constitutes a transformation from a person to property. To imply then that the deprivation of marriage rights removes the crime from the gambit of slavery is to forget the true meaning and the true gravity of the crime of slavery. Finally, though the loss of subsequent marriage capabilities is certainly a terrible repercussion, it sounds more like a social loss, amounting to a civil crime rather than a criminal one.

Professor Scharf comments, “What the victims of Sierra Leone’s forced marriages must have suffered is unfathomable; the Special Court’s attempt to punish those responsible is commendable.” I wholeheartedly agree. However, Professor Scharf also acknowledges that this crime must both conform with the statute and exist as a crime unique from those that already exist in order to prosecute on that basis.