Should Forced Marriages be Categorised as 'Sexual Slavery' or 'Other Inhumane Acts' in International Criminal Law?

Author:Victoria May Kerr
Position:BTO Solicitors LLP, GB
Pages:1-19
Victoria May Kerr, ‘Should Forced Marriages be Categorised as
‘Sexual Slavery’ or ‘Other Inhumane Acts’ in International Criminal
Law?’ (2020) 35(1) Utrecht Journal of International and European
Law pp. 1–19. DOI: https://doi.org/10.5334/ujiel.473
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
RESEARCH ARTICLE
Should Forced Marriages be Categorised as ‘Sexual
Slavery’ or ‘Other Inhumane Acts’ in International
Criminal Law?
Victoria May Kerr*
Gender-based crimes occur to this day in armed conicts across the globe. Forced marriages
were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they
should be categorised in international criminal law (ICL). The main question this paper examines
is: should forced marriages be categorised as ‘sexual slavery’ or ‘other inhumane acts’ in
ICL? Theprinciple of
nullum crimen sine lege
(theNCSL principle),is used as a tool by which
judgments from international criminal tribunals and the ICC can be objectively assessed. Judges
have generally held that it is more appropriate, in line with the NCSL principle, to categorise
forced marriages as ‘other inhumane acts’. However, the paper nds that they are relying on
authorities which are competent in an international human rights law (IHRL) context, but are
not directly transferrable to ICL. The paper illuminates the broader debate between certainty
and development in ICL and demonstrates how the tribunals and the ICC have attempted to
strike a balance in cases involving forced marriages. It seeks to provide a solution which ensures
that perpetrators of forced marriages in armed conict are convicted and justice is served and
respects both certainty and IHRL.
Keywords: Sexual slavery; Other inhumane acts; Principle of legality; International Criminal Law;
Forced marriage; Gender-based crimes; International Criminal Court; Crimes against Humanity
I. Introduction
Gender-based crimes occur to this day in armed conflicts across the globe. Thousands of women and girls
have been, and continue to be, victims of gender-based crimes carried out as weapons or tactics of war, or
due to the fact they were, or are, viewed as prizes of victory.1 For a time, gender-based crimes were con-
sidered as the ‘forgotten’ crimes of international law,2 as victims were ‘misunderstood and marginalized
not only by their local communities, but also by the international criminal legal system’.3 However, the ad
hoc international criminal tribunals and the International Criminal Court (ICC) in recent years have taken
leaps in showing their commitment to prosecuting such atrocities: prime examples being convictions for
forced marriages at the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of
Cambodia (ECCC), and the ICC.4
Forced marriages were rife in the conflicts in Sierra Leone, Cambodia, and Uganda, and a ‘sharp debate’
has emerged as to how they should be categorised as a crime against humanity in international criminal
* BTO Solicitors LLP, GB. kerrv@hotmail.co.uk
1 Chile Eboe-Osuji, International Law and Sexual Violence in Armed Conicts, (Martinus Nijhoff Publishers, 2012), p. 90.
2 Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice, (Oxford University Press, 2009), p. 76.
3 Frances Nguyen, Untangling Sex, Marriage, and Other Criminalities in Forced Marriage, Goettingen Journal of International Criminal
Law, (2014), Volume 6, No. 1, p. 44.
4 See, for example, Prosecutor v Alex Tamba Brima et al., SCSL-2004-16-T, Trial Chamber Judgment, 20 June 2007, Partly Dissenting
Opinion of Justice Doherty on Count 7- sexual slavery, and Count 8 -‘forced marriage’; Prosecutor v Alex Tamba Brima et al., SCSL-
2004-16-A, Appeals Chamber Judgment, 22 February 2008; Closing Order, Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan,
Case File No. 002/19-09-2007-ECCC-OCIJ, OCIJ 15 September 2010; Prosecutor v Charles Ghankay Taylor, SCSL-03-01-T, Trial Judg-
ment, 18 May 2012, Prosecutor v Dominic Ongwen, Decision on the confirmation of charges, ICC-02/04-01/15, 23 March 2016.
Should Forced Marriages be Categorised as ‘Sexual Slavery’ or ‘Other
Inhumane Acts’ in International Criminal Law?
2
law (ICL).5 The judgments of the SCSL, ECCC and ICC concerning forced marriages reflect the contrasting
viewpoints on the matter. Some argue that forced marriages most accurately share the characteristics of the
crime of ‘sexual slavery’, whereas others are of the view that forced marriages are ‘multilayered’ acts,6 which
comprise both sexual and non-sexual elements, and subject victims to repeated physical, mental, and sexual
abuse over a period of time,7 and, therefore, are better categorised under the crime ‘other inhumane acts’.
Forced marriages are, to this day, not codified in the statutes of any international criminal tribunals, or the
ICC as an independent crime.
A. Outline, Method and Approach
The main research question this paper examines is: should forced marriages be categorised as ‘sexual slavery’
or ‘other inhumane acts’ in ICL? The principle of nullum crimen sine lege (the ‘NCSL principle’), a well-estab-
lished legal concept, is used here as a tool by which key judgments from international criminal tribunals and
the ICC, which have indeed categorised forced marriages as either being subsumed in ‘sexual slavery’ or as
coming under ‘other inhumane acts’, can be objectively assessed. In the analysis, each of the four corollary
principles of the NCSL principle are considered separately (see Section 4). While it may be an obvious finding
that the international criminal tribunals and the ICC have generally held that it is more appropriate, in line
with the NCSL principle, to categorise forced marriages as ‘other inhumane acts’ due to the fact that forced
marriages are widely recognised as more than just sexual crimes, the reasoning in coming to these decisions,
may be flawed. The judges may be relying on authorities which are competent in an international human
rights law (IHRL) context, but are not necessarily directly transferrable to an ICL context (see Section 5).
The paper picks up on the broader debate between creating certainty and permitting development in ICL
and demonstrates how the tribunals and the ICC have attempted to strike a balance in the cases involving
forced marriages. Ultimately, it seeks to answer the research question by offering a solution which takes
account of both sides of the debate. It provides a simplified solution which will ensure that going forward
perpetrators of forced marriages in armed conflict are convicted and justice is served whilst respecting cer-
tainty (and compliance with the NCSL principle) and IHRL.
II. The Role of the NCSL Principle in ICL
The NCSL principle, often also referred to as the principle of legality, is a ‘fundamental guarantee’ and ‘an
essential element of the rule of law’.8–9 It is recognised by both civil and common law systems, and was intro-
duced on an international level after World War II.10 Whilst it is incorporated in numerous key human rights
conventions,11 in ICL, the NCSL principle is only expressly provided for in Article 22 of the Rome Statute, and
thus this provision has been regarded as ‘unprecedented’.12 Article 22 reads:
1. A person shall not be criminally responsible under this Statute unless the conduct in question
constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. 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.
5 Ibid, p. 20.
6 Ibid, p. 37.
7 Ibid, p. 25.
8 Alexander Grabert, Dynamic Interpretation in International Criminal Law: Striking a Balance between Stability and Change, (Herbert
Utz Verlag, June 2015), p. 10.
9 Beth van Schaack, Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, The Georgetown Law Journal, (2008)
Volume 97, p. 122.
10 Alexander Grabert, Dynamic Interpretation in International Criminal Law: Striking a Balance between Stability and Change, (Herbert
Utz Verlag, June 2015), p. 10.
11 International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, Art. 15; European Convention on Human Rights, (1955)
213 UNTS 221, ETS 5, Art. 7; American Convention on Human Rights (1979), 1144 UNTS 123, OASTS 36, Art. 9; Universal Declara-
tion of Human Rights, GA Res. 217 A (III), UN Doc. A/810, Art. 11(2); African Charter on Human and Peoples’ Rights, OAU Doc.
CAB/LEG/67/3 Rev. 5, Art. 7(2); Geneva Convention Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, Art. 99;
Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts,
(1979) 1125 UNTS 3, Art. 2(c); Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of
Non-International Armed Conflicts, (1979) 1125 UNTS 609, Art. 6(c).
12 Claus Kreß, ‘The International Criminal Court as a Turning Point in the History of International Criminal Justice’, in Antonio Cassese,
(ed.), The Oxford Companion to International Criminal Justice, (Oxford University Press, 2009) pp. 143–159, at p. 145.

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