by Paola Garza Gutierrez

The judgement that came from the Appeals Chamber for the Special Court of Sierra Leone set a historic precedent in being the first international tribunal that recognized forced marriage to be a separate category of crimes against humanity. Some international tribunals, such as Sierra Leone’s SCSL and the Extraordinary Chambers in the Courts of Cambodia, have prosecuted perpetrators accused for forced marriage, but the international community has yet to recognize forced marriage as a separate crime against humanity and therefore develop it into customary international law.

forced-marriage_1748513cForced marriage has been one of the many distinct features of armed conflicts around the world, particularly in Cambodia, Sierra Leone, Rwanda, and Uganda. Forced marriage causes severe mental and physical suffering and is a grave attack on human dignity. It is the responsibility of the international community to recognize forced marriage as a distinct category of crimes against humanity.

Women in countries that are characterized by armed conflict and oppressive regimes are taken as “wives” or “bush wives” against their will and subject to sexual violence and sexual slavery. The perpetrators are members of the armed forces in the conflict that force women into relationships without their consent. The Khmer Rouge in Cambodia introduced the policy of forced marriage, restructuring the institution of family in order to counter the threat posed by “class enemies.” The Khmer Rouge often enforced their forced marriage policy through coercive means, by punishment or execution for those who refused to agree to the marriage arranged by the regime. A woman in Cambodia tells how her niece refused to marry and was taken by the soldiers, raped and murdered.

These types of occurrences are characteristic to regimes where they force marriage without the consent of the persons being married. A particular concern with the notion of forced marriage is that rape within marriage is not a crime. The spouses often feel that they have a “right” over their partners and know that they cannot complain or refuse without severe punishment from the regime.

Although forced marriage possesses some of the same characteristics as sexual or gender crimes recognized as crimes against humanity, there are some features unique to forced marriage that should allow for its inclusion as a distinct category of crimes against humanity.  The imposition of a marital status without an individual’s consent results in the involuntary assumption of obligations arising from a marriage. In addition, the physical and mental suffering of an individual from a forced marriage is comparable to the harm caused by crimes that are enumerated as crimes against humanity. Forced marriage is characterized as well by crimes that have already been deemed crimes against humanity such as sexual slavery, rape, and enslavement. The international community should take all these factors into consideration and adopt forced marriage as a distinct crime against humanity and develop it into customary international law.

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