What is forced marriage? Towards a definition of forced marriage as a crime against humanity.

AuthorToy-Cronin, Bridgette A.

The Special Court for Sierra Leone's Trial and Appeals Chambers handed down judgments considering, for the first time, forced 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 law." (2) This Article argues that there is a need to recognize a crime of forced 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 marriages should not be collapsed into the prosecution of forced marriage; they are separate offenses that need separate recognition. Two contrasting examples of forced marriage are compared: so-called "forced marriages" in a number of African conflicts involving the abduction of women and girls by rebels and forced marriage between 1975 and 1979 in Khmer Rouge-ruled Cambodia. The African examples are drawn from published research, while a portrait of forced 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 forced marriage as a crime. The Extraordinary Chambers in the Courts of Cambodia (the "ECCC"), established to try Khmer Rouge crimes, has the opportunity to address this crime and to create a record of the fact that forced marriages 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 me I had to marry but I refused. They took me to the forest and raped me. After they raped me I said to them, "kill me" ... I said, "six of my children have already died so please dig a hole and bury me 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 forced marriage could constitute an inhumane act and allowed the Prosecutor to amend the indictment for three accused to include the charge of forced 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 forced 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 forced 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 "wives" or "bush wives" by the armed forces. (9)

A contrast to these examples is the policy of forced marriage introduced by the Khmer Rouge, (10) which ruled Cambodia between 1975 and 1979. While stories of forced 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"). (14) The interviewees--both men and women, civilians and cadre--told of their diverse experiences during the regime. One recurring tale was of men and women being coerced into marriages with a spouse chosen for them by the Khmer Rouge. Although they were unwilling participants, they felt unable to resist, either because of direct violence or out of fear of the oppressive regime. Many still remain in these forced marriages some thirty years after the fall of the regime and continue to feel anger and resentment at being forced to marry. The Study provided an opportunity to test the universality of the SC-SL's decision against a contrasting factual matrix.

The SC-SL's decision and forced marriage during periods of conflict has been the subject of some recent discussion, both academically and in the non-governmental sector. (15) Much of this literature has championed the recognition of forced marriage as a crime against humanity. This article questions whether there is a lacuna in the law that requires recognition of a separate offense of forced marriage. If such a lacuna does exist, then how can the crime of forced marriage be defined to ensure it advances the protection of civilians and the recognition of gender based crimes, rather than further entrenching patriarchal ideas of marriage?

Part I examines the nature of forced marriages in Democratic Kampuchea using the stories collected in interviews along with other authors' analysis. While each Cambodian's experience of the Khmer Rouge is unique, similarities in various stories sketch a portrait of forced marriage under the Khmer Rouge. Forced marriage under the Khmer Rouge was a crime perpetrated by an outsider to the marriage, where the oppressive regime forced both men and women into a lifelong relationship to which they did not consent. The stories of how these individuals were coerced and the effect that has had on them is told through their own words.

Part II outlines the different factual matrix of forced marriage in African conflicts. In these conflicts girls and women were more commonly the victims of forced marriage, and their "husbands," members of the armed forces in the conflict, were the perpetrators.

Part III then analyzes the decisions of the SC-SL Trial and Appeals Chambers regarding forced marriage. It critiques the decisions against the Appeals Chamber's stated aim of "enriching the jurisprudence of international criminal law." (16) It argues that the suffering of women subjected to forced marriage is qualitatively different from those not labelled "wife" and that there is a lacuna in the law that a crime of forced marriage can address.

Part IV sets out the argument that while there is a need to recognize a crime of forced marriage, the crime must be limited only to the conferral of the status of marriage and the ongoing effects of that status on the victim whether they are male or female. Despite the enthusiasm for what appears on its face to be a gain in women's rights, the potential effects of expanding the crime of forced marriage beyond the "marriage itself" needs closer examination. If the crime encompasses other conduct within these "marriages"--for example, rape, slavery, or torture--the jurisprudence will not be enriched but will instead serve the perpetrator's aim of veiling criminal conduct with the term "marriage."

  1. FORCED MARRIAGE IN DEMOCRATIC KAMPUCHEA

    1. The Policy

      The Khmer Rouge destroyed both the traditional family life of subsistence agriculture and the modern city life that Cambodians had begun to adopt by 1975. The Khmer Rouge regime abolished money and private property and rapidly introduced communal agriculture, reorganizing the population into agricultural cooperatives in which they forced people to live and work. (17) They immediately evacuated the cities. Urban dwellers, whose education and way of life the Government believed made them enemies of the revolution, were sent out into the countryside. These people were labelled "April 17" or the "new people" (neak thmey), those who had not embraced the revolution before April 17, 1975. This distinguished them from the "base people" (neak moultanh), peasants who had lived under Khmer Rouge control during the civil war of 19701975 and who were supposed to be the beneficiaries of the new society. (18)

      To counter the threat posed by "class enemies," the Khmer Rouge reached into every aspect of the people's existence, attempting to abolish all pre-existing economic, social, and cultural institutions. (19) The people knew the government only through its manifestation as Angkar (the Organization), and the punishments for disobeying the Angkar could be severe: beatings, hard labor, imprisonment, torture, and execution.

      This radical reordering of social and cultural institutions included fracturing the institution of family. (20) Family groups were broken up as people were made to live and work with others of their own sex and age. Children were separated from their parents. The Angkar controlled women's and men's sexuality and relationships, forbidding any pre-marital or extra-marital contact with the opposite sex. (21) The Khmer Rouge believed that sexual relationships would distract people from work and therefore undermine the success of the revolution: "... they thought sex should be restricted because it took up too much time and detracted from the chores at hand, overnight industrialization and glorification of the motherland." (22) As one propaganda slogan put it, "physical beauty will hinder the struggle." (23) Reproduction, however, had to continue as the Khmer Rouge aimed to increase the population and required productive labor to sustain the agrarian revolution. (24) At the same time, given the restrictions on sexual relationships, reproduction could only take place within marriage. Marriages had traditionally been...

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