Untangling sex, marriage, and other criminalities in forced marriage
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Goettingen journal of international law, Vol. 6, no. 1, 2014, p. 13-45
Over the past few decades, particularly with the rise of international criminal tribunals, there has been increased criminalization and greater awareness in gender and sex-based crimes among the international community. Crimes such as sexual slavery, enslavement, or rape have been successfully prosecuted under international law. Yet despite the increased recognition in the prohibition of sex and gender-based crimes, forced marriage remained marginalized until 2008, when the Special Court of Sierra Leone formally recognized forced marriage as an international crime. However, since the SCSL’s ruling, no other criminal tribunal to date has successfully enforced and prosecuted perpetrators for committing forced marriage. This is particularly troubling considering the widespread reports of forced marriage in other States, such as Uganda and Cambodia. Part of the challenge stems in the SCSL’s legal ruling which categorized forced marriage as an ‘other inhumane act’ under ‘crimes against humanity’. This categorization is puzzling considering forced marriage often entails acts of sexual violence and disproportionately affects young women and girls. In addition, forced marriage is frequently compared to sexual slavery and arranged marriage, which poses more challenges for courts to distinguish forced marriage as a unique crime. Thus, this contribution calls for the increased criminalization and awareness of forced marriage as a sex and gender-based crime that is on par with other similar prohibited acts, including sexual slavery, enslavement, rape, and forced pregnancy. Case studies will be examined, such as Sierra Leone, Uganda, and Cambodia. Sierra Leone is examined due to the SCSL’s seminal ruling on forced marriage. Cambodia is discussed because of the legal challenges presented before the Prosecutors at the Extraordinary Chambers in the Courts of Cambodia, especially as they try to convict the accused of alleged acts committed over three decades ago. Lastly, Uganda is observed to analyze why despite widespread reports, the ICC is not prosecuting senior militia leaders of forced marriage. These three cases seek to illustrate the complexities and difficulties in prosecuting forced marriage and also to analyze the definition and legal nuances behind forced marriage. In doing so, a better understanding is developed and raises awareness as to why forced marriage must be on the forefront in international criminal law to prosecute and convict perpetrators who are committing an egregious crime.
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