Mohamed Y. Mattar, Access to International Criminal Justice for Victims of Violence Against Women Under International Family Law

• Citation: Vol. 23 No. 1
• Publication year: 2009
• topic: Family Law,Criminal Law

ACCESS TO INTERNATIONAL CRIMINAL JUSTICE FOR VICTIMS OF VIOLENCE AGAINST WOMEN UNDER INTERNATIONAL FAMILY LAW

Mohamed Y. Mattar^*

INTRODUCTION

I am delighted to be here at this very special event celebrating 60 years of the Universal Declaration of Human Rights (UDHR). I would like to share with you some of the most important recent developments in the anti- trafficking movement and the violence against women movement as linked to developments in international family law since the passage of the UDHR. In doing so, I would like to focus on two main developments: (1) at the substantive level-the expansion of the concept of human trafficking itself, originally limited to prostitution, to include the institution of marriage; and (2) at the procedural level-allowing victims of trafficking access to the international justice system as victims of a form of violence against women.

In discussing the first issue, I will outline the relevant international law that links forced marriage to human trafficking. I will then provide a summary of various forced marriage practices around the world that violate international law and the domestic measures that have been adopted in some countries to combat them. Regarding the second issue, I will first discuss a few domestic laws from around that world that attempt to bring trafficking cases within the auspices of domestic violence statutes. I will then review in detail various cases of domestic violence (and other private incidents of violence against women) brought before the U.N. Committee on the Elimination of Discrimination Against Women (CEDAW Committee). These cases illustrate how international law provides a remedy for women who are denied justice at the national level and how such cases are being adjudicated under international law. I will end with a discussion of the one trafficking case that the Committee has heard to show how CEDAW jurisprudence on this issue may develop in the future.

I. SUBSTANTIVE DEVELOPMENT: EXPANDING THE CONCEPT OF HUMAN

TRAFFICKING

To address the concept of human trafficking, let me take you back to 1948. The UDHR states in Article 4 that "no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms."¹The legislative history of the UDHR indicates that the term slavery was meant to include traffic in women and forced labor, but the specific concept of trafficking did not appear in the text of the UDHR.²

Of course, trafficking in persons arguably violates many of the 30 articles of the UDHR.³Of particular relevance to this presentation, trafficking in persons may constitute interference with family relations in violation of international family law and thus also a violation of Article 16 of the UDHR, which states, "The family is the natural and fundamental group unit of society and is entitled to protection by society and state."⁴Article 16 also states, "Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution."⁵It further provides, "Marriage shall be entered into only with the free and full consent of the intending spouses,"⁶a requirement that human trafficking violates. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), one of the progeny of the UDHR, likewise states:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; [and]

(c) The same rights and responsibilities during marriage and at its dissolution.⁷

International family law thus establishes the principles of consent to marriage, a minimum age for marriage, and equality in the union of marriage. Consequently, trafficking for the purposes of forced marriage, arranged marriage, marriage by catalog or mail-order brides, temporary marriage, child marriage, and forced child-bearing violate international family law.⁸

Extensive data demonstrates the magnitude of the problem of forced and arranged marriages around the world. Women are trafficked from Central Asian countries with the promise of marrying wealthy foreigners.⁹Since the

1990s, 3,037 women have been recruited from Kazakhstan, 4,109 from Kyrgyzstan, and 1,139 from Uzbekistan by marriage agencies.¹⁰Through such agencies and by virtue of similar means, some 75,000 women have left Russia to marry American men.¹¹Marriage agencies also operate in Ukraine, where they have no licensing requirements, and Ukraine constitutes a major country of origin for human trafficking.¹²In a related practice, women have been trafficked from Tajikistan to Austria for marriage for the sole purpose of giving birth to a child, which is then taken away from the mother.¹³

The Philippines is another major origin country for mail-order brides, with women often leaving as a result of social pressure to marry young or the stigma attached to spinsterhood, and because marrying a foreigner is seen as an opportunity to break out of poverty and secure financial well-being for the bride and her family.¹⁴Hundreds of marriage agencies advertise Filipinas through pen pal columns, newspaper ads, and the Internet.¹⁵In many mail- order bride arrangements (for example, in Canada), Filipinas are forced to assume roles in domestic servitude or prostitution; they are denied contact with families back home¹⁶and are subject to physical, sexual, and emotional abuse.¹⁷

In Indonesia, the mail-order bride phenomenon takes place primarily from the West Kalimantan province, where Chinese-Indonesian women marry Taiwanese men.¹⁸While some of those women and girls end up in successful marriages, others may work as slaves in their husbands' homes.¹⁹In some cases, women have been forced to work in the sex industry or have been sold directly to brothels.²⁰Many of the marriages involve underage girls and falsified documents; most are facilitated through agents in Indonesia.²¹

Young Vietnamese girls have been trafficked through enticement into marriage to Taiwan, where they are sold into brothels and forced into prostitution.²²In India, girls may be sold for marriage.²³Internal trafficking for the purpose of marriage is also prevalent in China, where infant girls are frequently kidnapped or bought from poor parents-particularly migrant workers-and sold to childless families in more prosperous regions or sold to be raised as brides for poor farming families.²⁴

In Egypt, temporary and transactional marriages have been reported, with young Egyptian women increasingly being married to wealthy suitors from the Persian Gulf as poverty levels rise.²⁵While such temporary marriages are often arranged with parental consent, the transactional marriages are conducted by marriage brokers who aid foreign men in the procurement of Egyptian wives; both temporary and transactional marriages could amount to sex trafficking.²⁶

In West Africa, a tradition involving the sale of female slaves, known as trokosi, or "wives of the deity," is a modern-day form of slavery.²⁷According to this tradition, young virgins are brought to a shrine to compensate for a crime or transgression committed by their families, perhaps generations earlier; the girls live as sex slaves to the priest.²⁸In Zambia, the payment of lobola (bride price) is a common marriage tradition.²⁹This practice exposes women to violence and abuse at the hands of husbands and in-laws who feel "that the payment entitles them to treat the bride as a virtual slave."³⁰

Some legislative measures have been adopted by countries to combat these practices. For example, domestic laws of many countries have specific restrictions on marriage to prevent forced or fraudulent marriages. An anti- trafficking law in the Philippines makes it a crime

[t]o introduce or match for money, profit, or material, economic or other consideration, any person or . . . any Filipino women to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling, or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.³¹

Furthermore, it is a crime "[t]o offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage."³²In Vietnam, Prime Minister's

Decree 69 implemented steps to protect women from marriage fraud through "heightened due diligence in issuing marriage certificates and steps to ensure that the marriage is voluntary."³³Likewise, the Republic of Korea's National Assembly passed the Marriage Brokerage Act in 2007 to regulate both international and national marriage brokers, prescribing a penalty of up to three years' imprisonment or fines for dishonest marriage brokers.³⁴A few countries have specific forced marriage provisions contained within their criminal codes, including Cameroon,³⁵Norway,³⁶and Germany.³⁷Where a specific law has not been enacted, some states prosecute forced marriages under criminal provisions prohibiting marital rape.³⁸In situations where there is no prohibition on marital rape, perpetrators of forced marriage often commit their crimes with impunity due to a lack of adequate legislation.³⁹Other criminal provisions used to prosecute these perpetrators include laws that penalize rape, indecent assault, false imprisonment, and duress.

In sum, illicit marriage practices constitute a significant problem in many countries. Combating the problem requires a more expansive definition of trafficking that recognizes not only...