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