Continuing Uncertainties: Forced Marriage as a Crime Against Humanity

On 22 February 2008, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) delivered its judgment in the Armed Forces Revolutionary Council (AFRC) case. This decision stands out as unique for setting significant precedent in the development of gender-based crimes in international criminal law by holding forced marriage to be a crime against humanity under the “other inhumane acts” category contained in Article 2(i) of the Statute of the Special Court for Sierra Leone. Although this recognition of forced marriage signifies the SCSL’s commitment to actively prosecute gender-based crimes, and may further set persuasive precedent for other international adjudicative bodies, there remain certain elements of this crime that, despite the Appeals Chamber’s decision, are unsettled and unclear. The purpose of this paper is to raise, explore, and assess these pressing questions. In the first part of the paper, the author raises three questions concerning the technical elements of the crime of forced marriage. Namely, the author asks: whether forced marriage violates the principle, nullem crimen sine lege; whether forced marriage is an adequately specific and distinct crime to be prosecuted separately from previously enumerated crimes; and finally, whether the definition of forced marriage requires a nexus to armed conflict. The second part of the paper raises questions relating to the implications of defining this crime using the label, marriage. Specifically, the author asks whether this label invokes existing connotations in relation to culture, gender, sexual orientation, and age, and whether these connotations may affect the application of this crime to new contexts. The author concludes that, without addressing these continuing uncertainties in the definition of forced marriage, the force of the precedent provided by the AFRC case is potentially insufficient to prosecute future instances of forced marriages in contexts outside of Sierra Leone, thereby failing to provide justice for all victims of forced marriage worldwide.La