What is Forced Marriage: Towards a Definition of Forced Marriage as a Crime Against Humanity

Abstract

The Special Court for Sierra Leone's Trial and Appeals Chambers handed down judgments considering, for the first time, marriage as a crime against humanity. (1) This Article critiques those decisions against the Appeals Chamber's stated aim of enriching the jurisprudence of international criminal (2) This Article argues that there is a need to recognize a crime of marriage, but in order to enrich current jurisprudence, it should be limited to only the conferral of the status of marriage and the ongoing effects of that status on the victim. Other crimes that occur within the should not be collapsed into the prosecution of marriage; they are separate offenses that need separate recognition. Two contrasting examples of marriage are compared: so-called forced marriages in a number of African conflicts involving the abduction of women and girls by rebels and marriage between 1975 and 1979 in Khmer Rouge-ruled Cambodia. The African examples are drawn from published research, while a portrait of marriage in Cambodia is sketched through stories gathered in field research conducted in Cambodia in 2006, along with some published material. This Article argues that there is a lacuna in the law that requires the recognition of marriage as a crime. The Extraordinary Chambers in the Courts of Cambodia ECCC), established to try Khmer Rouge crimes, has the opportunity to address this crime and to create a record of the fact that were traumatic events that deeply affected thousands of Cambodian lives. (3) INTRODUCTION My husband was a French soldier. They hanged my husband. Five months later they told I had to marry but I refused. They took to the forest and raped me. After they raped I said to them, kill me ... I said, six of my have already died so please dig a hole and bury together with my four remaining children but I won't agree to marry ... Now I am almost mad. (4) In 2005, the Special Court for Sierra Leone (SC-SL) (5) broke new ground when it recognized that marriage could constitute an inhumane act and allowed the Prosecutor to amend the indictment for three accused to include the charge of marriage as a crime against humanity. (6) At trial, however, the majority dismissed the charge for redundancy, holding that the prosecutor's evidence indicated that the crime of marriage was completely subsumed by the crime of sexual slavery. (7) In 2008 the Appeals Chamber reversed that finding and convicted the three accused of marriage for a distinct inhumane act that constituted a crime against humanity. (8) Forced marriage is not unique to Sierra Leone. Stories have emerged from other conflicts in Africa, including Rwanda, Mozambique, and Uganda, in which women were taken as or bush wives by the armed forces. (9) A contrast to these examples is the policy of marriage introduced by the Khmer Rouge, (10) which ruled Cambodia between 1975 and 1979. While stories of labor, starvation, executions, and the killing fields have been etched into the international community's imagination, the story of gender violence has remained largely untold. (11) The prosecutions currently being undertaken in the ECCC, established to prosecute Khmer Rouge crimes, (12) present an opportunity for recognizing and addressing gender violence. The study on which this Article is partly based was funded with the hope that evidence of gender violence could be brought before the ECCC, which began operating in Phnom Penh in 2006. Bringing gender crimes before the ECCC would contribute to the international feminist project of increasing recognition of gender crimes in international law. (13) This hope was tempered by the belief that people in Cambodia would be unwilling to talk about these crimes, particularly rape. The study involved in-depth interviews with over one hundred victims or eyewitnesses of sexual violence in Democratic Kampuchea who were identified through a survey of more than 1,500 Cambodians (the Study). …