Forced Marriage – A “new” Crime Against Humanity?
Abstract: Forced marriage is one of the newest crimes to be tried as a crime against humanity before an international court. During the Sierra Leone civil war, victims of sexual violence were often referred to as ‘bush wives’ or ‘rebel wives’. The Special Court for Sierra Leone (SCSL) was the first international criminal tribunal to charge, try and convict persons for forced marriage as a crime against humanity. The inconsistency in the legal characterisation of forced marriage as a crime against humanity either as an ‘other inhumane act’ or as sexual slavery by the SCSL, provides the framework for this thesis. The research identifies two different branches of the jurisprudence. The first branch, emerging from the Trial Chamber judgement of the Prosecutor v. Brima (the AFRC case) and further developed in the Prosecutor v. Taylor (the Taylor case), reflects the conclusion that acts of forced marriage are adequately pursued as sexual slavery. The second branch, emerging from the judgement of the Appeals Chamber in the AFRC case and the judgement of the Trial Chamber in Prosecutor v. Sesay, Kallon, and Gbao (the RUF case), demanded further conviction under ‘other inhumane acts’ in order to capture the entire wrongdoing of acts of forced marriage. The research explores potential underlying causes for the conflicting case law. These causes are linked to the principle of legality and the tension of the law as it is (lex lata) and the law as it ought to be (lex feranda). The research makes an attempt to question whether the crime of ‘forced marriage’ has reached the necessary level of recognition for it to be considered an international crime. Whether the phenomenon of ‘forced marriage’ fall under the definition of sexual slavery or under ‘other inhumane acts’ remains uncertain.
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