Forced Marriage as a Crime Against Humanity

Natalae Anderson
Rutgers School of Law 2011
DC-Cam Legal Associate Summer 2010

I. Historical Background
During the temporal jurisdiction of the ECCC, the Khmer Rouge (“KR”) systematically arranged marriages for men and women throughout Democratic Kampuchea (“DK”). Although some men arranged marriages with women of their choice by speaking with their village chief, most men and women had no choice as to their partner. Refusing to marry “could have resulted in torture, imprisonment or death.”[1]

These marriage ceremonies consisted of no fewer than three couples and could be as large as 160 couples. Generally, the village chief or a senior leader of the community would approach both parties and inform them that they were to be married and at the time and place the marriage would occur. Often, the marriage ceremony would be the first time the future spouses would meet. Parents and other family members were not allowed to participate in selecting the spouse or to attend the marriage ceremony. The Khmer Rouge maintained that parental authority was unnecessary because it “w[as] to be everyone’s ‘mother and father.’”[2]

Many atrocities were inflicted on the DK population during the KR regime’s rule, but not every atrocity is punishable under international criminal law. International law has increasingly recognized gender-based crimes such as rape and sexual slavery as crimes against humanity. Nevertheless, it is questionable whether these gender-based crimes capture the harm that forced marriage inflicted upon men and women during DK or if there is a gap in international law “necessitat[ing] a separate crime of forced marriage as an ‘other inhumane act.’”[3]

II. The Harms of Forced Marriage
Before the KR regime, arranging marriages was a family affair. Mothers and fathers went through great pains to find an appropriate spouse for their sons and daughters. Parents researched the age of potential spouses, their social status and other factors to carefully analyze the probable stability of the match. Marriage ceremonies lasted three days and were festive occasions with all of the bride and groom’s relatives and villagers celebrating together. Pre-KR arranged marriages stand in stark contrast to the forced marriages that took place under the KR regime. During the DK period, multiple couples were married at abrupt somber ceremonies without family present and generally with no forms of celebration following the event. Women and men who were forced into marriage were deprived of family input, consent and celebration.

Although many couples married during the DK “fe[lt] anger and resentment at being forced to marry,”[4] many also felt obligated to stay with their spouse after the fall of the KR. After making a formal commitment to be with their partner for life, many men and women faced what they perceived to be insurmountable cultural barriers. Couples were seen as married by the community and divorce was socially unacceptable. Other couples remained together because they believed it provided stability for the children that resulted from the forced wedlock. Still others, who found themselves with few resources following the collapse of the regime, resigned themselves to their marriages due to lack of financial resources and protection.

Even if men and women overcame the cultural difficulties and separated from their spouse after the fall of the KR, they still had to contend with the ongoing consequences of the forced marriage. One man learned from a friend that his wife from the DK era had a daughter who was his child. Fifteen years after the KR forced them to marry, the husband embarked on a trip to find his ex-wife and his daughter. After finding both, the man began to send his ex-wife money for his daughter. This arrangement created tension between him and his second wife.

Men and women who were forced to marry suffered many mental and psychological harms. Victims were: 1) Deprived “of the opportunity for consensual marriage . . . as a pivotal life decision;”[5] 2) submitted to violent or oppressively coercive measures to enter the marriage; 3) responsible for raising children resulting from the forced marriage; and 4) forced into an ongoing intimate relationship that affected their lives in various ways even if they separated after the fall of the KR.

III. The Elements of Forced Marriage

In Cambodia, forced marriage may be said to have occurred when “a perpetrator through his words or conduct, . . . [,] compel[led] a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or . . . mental or psychological injury to the victim.”[6] Therefore, to demonstrate that forced marriage occurred the Prosecution must establish three elements: 1) force, threat of force or coercion; 2) a conjugal association; and 3) severe suffering, or mental or psychological injury to the victim.
A. Element 1: Compelled by Force, Threat of Force or Coercion
The Khmer Rouge controlled the country by severely punishing individuals for even minor infractions. In this environment, many people felt powerless to oppose KR orders. Although some people refused orders to marry multiple times, some of these same people eventually acquiesced. Others who refused were merely fortunate enough to avoid a punishment as severe as death. In this oppressive environment, many individuals undoubtedly agreed to marry out of fear. Therefore, one should consider the repressive environment that the KR created when establishing the element of coercion. Such an environment should be prima facie evidence that victims of forced marriage during the DK could not freely give consent.

In Prosecutor v. Kunarac, the International Criminal Tribunal for the Former Yugoslavia (ICTY) observed that some environmental factors are so coercive that victims are incapable of giving genuine consent.[7] In Kunarac, the accused were charged with enslavement and rape for holding a number of women captive for varying periods of time. The trial chamber broadly interpreted coercion as encompassing “most conduct which negates consent”[8] thus evaluating the victims’ ability to consent within the context of their surroundings.

In Prosecutor v. Kronjelac, the ICTY also recognized that coercive environments create a presumption of involuntariness.[9] After analyzing the detention conditions of non-Serb prisoners, the Appeals Chamber held that “a reasonable trier of fact should have arrived at the conclusion that the detainees’ general situation negated any possibility of free consent.”[10]

The ICTY firmly established that coercive environments deprive victims of the ability to freely give consent. The International Criminal Court (ICC) captured the ICTY’s interpretation of coercion in its Elements of Crimes, which includes force, threat of force or coercion as an element of rape as a crime against humanity, and also recognizes that rape can be committed by taking advantage of a coercive environment.

Still, not everyone married during DK was forced into their marital relationships. Because some individuals participated in arranging their own marriages, the defense can submit evidence of consent as an affirmative defense. Some couples were able to maneuver around the KR’s social constructs and were fortunate enough to arrange a marriage that was pleasing to both parties. “Some asked permission to marry someone of their own or a relative’s choosing . . . . Most significantly, in the first and last year of the regime, more family requests were granted than in the middle years of Democratic Kampuchea.”[11]

B. Element 2: A Conjugal Association
In the Cambodian context, a conjugal association was an exclusive marital relationship between two people resulting from a legally sanctioned ceremony performed by a state official. Proof of the union establishes the conjugal association element. In some cases, real evidence such as registries may be available. However, where such evidence is unavailable, testimony of witnesses and other relevant evidence can be relied upon. Because the marriages were often group weddings and were public formal ceremonies, relevant evidence should be readily available.

C. Element 3: Severe Suffering, or Mental or Psychological Injury to the Victim
Women and men who were forced to marry experienced an extreme range of emotions from anger to sadness. Many described the experience “as bitter as any other they suffered during the brutal regime.”[12] Some individuals were so emotionally overwhelmed by their forced marriage that they committed suicide after the ceremony.

The force and coercive measures that KR leaders employed to compel people to marry also caused victims’ severe suffering. Some who merely contemplated not consenting to their forced marriage were plagued with visions of torture or death. Others who resigned themselves to the ceremony still faced alarming intimidation. One woman tried to refuse the order to hold hands with her future husband during the wedding ceremony until KR soldiers pointed a gun at her. Issuing death threats, forcing people to witness violence, and the other coercive measures employed by KR leaders undoubtedly caused victims severe suffering and mental trauma.

Forced marriage violated individuals’ rights to autonomy and stripped them of the right to make what many would consider a life-changing decision, thus inflicting psychological injury on the victims. Because victims experienced a wide range of situations and endured different harms, the evidence establishing severe suffering, or mental or psychological injury to the victim will necessarily vary on a case-by-case basis.

D. Conclusion
These harms and elements illustrate that the crime of forced marriage in the Cambodian context is largely a non-sexual crime. It is not subsumed by any of the previously recognized gender-based crimes and therefore should be recognized as a separate crime. Examining the jurisprudence and history of previously recognized gender-based crimes reveals the gap in international criminal law between these crimes and forced marriage.

IV. Gender-Based Crimes Currently Punishable by International Tribunals
A. Rape as a crime against humanity[13]
Rape is the only gender-based crime punishable as a separate offense in ECCC law.[14] The International Criminal Tribunal for Rwanda (ICTR), the ICTY, the Special Court for Sierra Leone (SCSL) and the ICC also criminalize rape as a crime against humanity in their respective statutes. The tribunals’ definitions are broad enough to cover any type of sexual invasion of a victim’s body with any type of object.[15]

Rape is distinguishable from forced marriage as it took place during the DK. The SCSL noted in Sesay that forced marriage had “a distinct element from the crime of rape . . ., and vice versa. The offence of rape requires sexual penetration . . . .”[16] Rape requires a perpetrator to invade the body of a victim.

Even though the KR expected couples to consummate their relationship after marriage, not every couple followed their orders. One man, who considered himself lucky when his unit chief noticed that he was in love with a woman and arranged their marriage, described how he entered into an agreement with his wife not to have sex. “I fell in love with a widow who was two or three years older than me . . . . Unfortunately, after the marriage, I learned that she did not love me. She asked me not to have sex with her and I agreed.”[17] In these cases, the element of sexual penetration is missing. However, even where sexual penetration occurred following the marriage, rape still fails to capture the link between the perpetrator and victim of rape because it was not the KR who directly invaded the body of the wife, but the husband who often also had been forced into the marriage.

Therefore, the elements of rape fail to capture the crime of forced marriage as it took place during the DK because sexual penetration did not necessarily occur, the perpetrator-victim dynamic is missing even in cases where sexual penetration did occur and rape does not address the “non-sexual elements [of forced marriage] that are comparable violations of human dignity.”[18] Since rape does not capture the crime of forced marriage and no other sexual crimes fall within the jurisdiction of the ECCC, forced marriage must be charged as an other inhumane act (“OIA”).

B. Other Inhumane Acts
ECCC law does not list forced marriage as a separate crime against humanity, however it was charged in Case 002 by the Co-Investigating Judges in their September 15, 2010 closing order. [19] The Nuremberg Charter established the residual category of OIAs. Control Council Law No. 10, created to guide post-war crimes trials in the occupied zones in Germany, and the Tokyo Charter, created to prosecute Japanese for WWII crimes, both recognized the OIA category. Because “one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts”[20] the residual category exists to capture those crimes against humanity that are not enumerated.

To satisfy the requisite elements of OIAs, the perpetrator must “commit an act of similar gravity and seriousness to the other crimes against humanity enumerated in the relevant instrument, with intent to cause that other inhumane act.”[21] When defining inhumane treatment or acts, the Geneva Convention[22] and scholars have lauded flexibility as opposed to rigid lists, but the category of OIAs has also run afoul of the principle of specificity because of its adaptive nature. International tribunals have helped to “rein in the imprecise and open-ended nature of this provision.”[23]

The trial chamber in Prosecutor v. Kayeshima articulated a standard for determining how an act qualifies as an OIA. The chamber observed that OIAs were “of similar gravity and seriousness to the enumerated acts” of the ICTR statute and that they were “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.”[24] Although the chamber articulated a definition, it found the defendant not guilty of OIAs because the Prosecution failed to “particularise the nature of the acts” relied upon for the charge.[25]

In Akayesu, the ICTR found the accused criminally liable for OIAs. The Prosecution specified the following acts for the charge:
(i) the forced undressing of the wife of Tharcisse outside the bureau communal, after making her sit in the mud, as witnessed by Witness KK;
(ii) the forced undressing and public marching of Chantal naked at the bureau communal;
(iii) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal.[26]

The trial chamber characterized all of these acts as sexual violence and concluded that sexual violence fell “within the scope of ‘other inhumane acts.’”[27]

International tribunals have recognized sexual slavery as an OIA. One can analyze whether forced marriage qualifies as an OIA by applying the elements set forth in Kayishema and by analyzing the jurisprudence of sexual slavery.

C. Sexual slavery as a crime against humanity
Neither the ICTY nor the ICTR criminalizes sexual slavery in their statutes. However, in Kunarac, where the accused forcibly detained several girls in different apartments and continually raped them, the ICTY charged the accused with enslavement and rape as a crime against humanity thus capturing the offense of sexual slavery.[28] Both of these crimes have also been charged by the ECCC in Case 002.[29]

The Rome Statute Article 7(1)(g)-2 lists sexual slavery as a crime against humanity. The elements are:
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.[30]

The SCSL statute explicitly penalizes sexual slavery under Article 2(g). In the RUF case, the Trial Chamber found the accused Sesay, Kallon, and Gbao guilty of sexual slavery as a crime against humanity after finding that they held women against their will for varying periods of time and forced them to engage in sexual intercourse. Citing the ICTY’s judgment in Kunarac and its definition of enslavement, the trial chamber concluded that the following “indicia” were illustrative when examining whether sexual slavery took place: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”[31] Notably, the trial chamber declined to recognize forced marriage as a crime against humanity of other inhumane acts and held that sexual slavery subsumed forced marriage.

In the AFRC Case, also at the SCSL, the Prosecution argued that although forced marriage had sexual elements, it differed from sexual slavery because the perpetrator forced the woman to behave as a wife by performing non-sexual duties such as cooking, cleaning, laundry and rearing children. The Trial Chamber was not persuaded by the Prosecution’s argument and concluded that “the Prosecution did not adduce any evidence that forced marriage was a non-sexual crime.”[32]

The Appeals Chamber reversed the trial chamber’s decision.[33] Persuaded by the Prosecution’s argument, the Chamber held that forced marriage was not primarily a sexual crime and therefore could not be subsumed by sexual slavery. The Appeals Chamber highlighted the stigma that “Bush wives” face when trying to reintegrate into their communities. It also emphasized the non-sexual conjugal duties that rebel husbands forced their wives to perform. After detailing these distinctions, the Appeals Chamber described forced marriage as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”[34]

The decision of the Appeals Chamber has been criticized for labeling the experiences of the women in Sierra Leone as forced marriage. One scholar stated that forced marriage was “a criminal misnomer that masked what, under international criminal law, was clearly a situation of sexual slavery.”[35] The decision has also been criticized for reinforcing stereotypes of women’s roles by defining cooking, cleaning, and other household duties of women as conjugal duties instead of forced labor.

Although the AFRC Appeals judgment is helpful for parsing out the elements of forced marriage, forced marriage as it took place during the DK is factually different from the forced marriage that occurred in Sierra Leone. Forced marriages in the Sierra Leone context were different for a number of reasons: (1) they were crimes usually perpetrated by the husband; (2) rape and sexual violence were major components of the martial relationship; (3) the marriage was not legally sanctioned; and (4) the husbands subjected the wives to forced labor. Because of these differences, the elements of sexual slavery arguably better capture the crime suffered by women in Sierra Leone, while the elements of forced marriage aptly capture the crime suffered by men and women forcibly married during the DK.

V. Nullum Crimen Sine Lege
A. Definition
The principle of nullum crimen sine lege (“nullum crimen”) dictates that to be prosecuted, an act must have “recognised as a crime entailing individual criminal responsibility” at the time that the acts took place.[36] To satisfy nullum crimen, “forced marriage” must meet three elements: (1) existence at the relevant time (1975-1979) in a manner providing for individual liability; in a form (2) sufficiently specific to render the imposition of criminal sanctions for the acts of the accused foreseeable; and have (3) been accessible to the particular accused.

1. Existence of the law at the relevant time
The Prosecution can establish whether a crime existed in customary law during the temporal jurisdiction of the court by examining traditional sources of law. These sources include international conventions, customs, “general principles of law recognized by civilized nations,” and judicial decisions.[37] Because customary law “takes time to develop” it is difficult to say exactly when a “norm has crystallized.”[38] Therefore, international instruments and jurisprudence occurring after the temporal jurisdiction of a court remain relevant for establishing a “period where customary law begins to develop.”[39]

2. Specificity and foreseeability
Specificity and foreseeability are closely associated. The law or provision outlining a crime must be sufficiently specific to ensure that an individual could foresee criminal liability for his conduct; however, “emphasis on conduct, rather than on the specific description of the offense in substantive criminal law, is of primary relevance.”[40] Nevertheless, nullum crimen cannot be violated simply because an individual’s conduct was moral or appalling. The moral or appalling nature of the conduct merely combats foreseeability challenges because “if the crime is serious it is more likely that the perpetrator foresaw that what he did would render him criminally responsible.”[41]

Specificity and foreseeability do not preclude “refining and elaborating upon, by way of construction, existing rules.”[42] In C.R. v. The United Kingdom,[43] the European Court of Human Rights found a man guilty of marital rape although at the time criminal liability did not exist for marital rape. The Court concluded that although their decision would change existing law, nullum crimen did not forbid “gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offense and could reasonably be foreseen.”[44] C.R. illustrates that the development of the law should not necessarily be hampered by foreseeability where the “case law develops after the offence has taken place but before it is dealt with in court, or even when the behaviour is declared criminal for the first time in the case at hand.”[45]

3. Accessibility
In order to hold individuals criminally liable, they must have had sufficient notice that their conduct was prohibited. The Prosecution can establish accessibility by examining domestic and international jurisprudence as well as international instruments that existed at the relevant time period. It is not necessary that the perpetrator knew that his conduct was unlawful but only that information establishing the illegality of his conduct was accessible to him.

B. Forced Marriage and Nullum Crimen
Only the “legal ingredients” of the offense, not the specifically named crime of “forced marriage,” must have existed at the time the act was committed.[46] Therefore, the Prosecution must establish that being compelled by force, threat of force or coercion to marry was prohibited during the temporal jurisdiction of the ECCC.

1. Compelled by force, threat of force or coercion
All of the gender-based crimes illustrate the legal relevance of consent and the illegality of using force, threat of force or coercion to override an individual’s autonomy. Some scholars argue that the evolution of gender-based crimes shows a move from protecting women’s dignity and honor to a paradigm “based on broader principles of human dignity, autonomy, and consent.”[47] Comparing the text of the Geneva Convention with the ICC Statute reveals a “gradual clarification of the [elements] of criminal liability” for rape.[48]

Arguably, an individual’s freedom of choice and consent is curtailed by the power of the state. Citizens are not unfettered in all decision making. However, considering the intimate relationship between a husband and wife, the social importance placed on the marital relationship and the right to consensual marriage that is enshrined in many international human rights instruments, consent and autonomy are as implicated in forced marriage as in the previously discussed gender-based crimes. Examining the evolution of gender-based crimes establishes that a prohibition against using force, threat of force or coercion to override an individual’s autonomy existed prior to the temporal jurisdiction of the ECCC: thus satisfying the nullum crimen principle.

Although rape and sexual violence “have long been recognized as international crimes,”[49] the Nuremberg Charter lacked explicit prohibitions against any forms of sexual violence. It was not until the four allied powers created Control Council Law No. 10[50] to guide post-war crimes trials in the occupied zones in Germany that rape was listed as a crime against humanity.

The Tokyo Tribunal prosecuting Japanese for WWII crimes did not list rape as a crime in its charter; however, it did prosecute the rape of women and other civilians as an affront to family honor and inhumane treatment and prosecuted such gender-based crimes under the war crimes provision of the charter.

Following WWII, the Geneva Conventions were amended to provide better protection to civilian populations. The Geneva Convention IV of 1949 thus captures the international norms that were created as a result of the violence committed upon civilians during WWII. Article 27 of the Geneva Convention IV of 1949, which is universally binding on all countries and considered customary international law, prohibits rape. In 1977, two Additional Protocols were added to the Geneva Conventions, both of which explicitly prohibit rape.

The Geneva Conventions of 1949, the jurisprudence following WWII and the jurisprudence that subsequently came out of the international tribunals demonstrate that criminal liability for gender-based crimes existed prior to the ECCC’s temporal jurisdiction. Rape, a gender-based crime including protection of consent and autonomy, undoubtedly satisfies the nullum crimen requirements for this element of force marriage.

Although a legal definition for rape addressing the issue of consent did not exist until the ICTR’s decision in Akayesu,[51] there was a “refining and elaborating upon, by way of construction, existing rules” so that rape as a crime against humanity became not a violation of a woman’s dignity but a violent act committed against her in circumstances where consent could not genuinely be given.[52] Like C.R. and the marital exception for rape, rape embodying the issue of consent has evolved through jurisprudence occurring after the ECCC’s temporal jurisdiction. Nevertheless, the legal relevance of consent as it relates to individual autonomy is “consistent with the essence of rape.”[53]

2. Conjugal association and nullum crimen
The right to choose one’s spouse was embodied in many international human rights instruments prior to the temporal jurisdiction of the ECCC. Some scholars contend that charging forced marriage “cloud[s] important differences between forced marriages that amount to violations of international human rights law from those that constitute crimes against humanity.”[54] However, Antonio Cassese maintains that “[c]rimes against humanity [are] to a great extent predicated upon international human rights law.”[55] Because international human rights law provides clues to what constitutes a crime against humanity, surveying international human rights instruments that embody the right to choose one’s spouse helps to determine whether nullum crimen is satisfied.

“Marriage without consent of both parties has been acknowledged as a violation of international human rights law since at least the Universal Declaration on Human Rights 1948.”[56] The Universal Declaration of Human Rights (“UDHR”), long considered “a common standard of achievement for all peoples and all nations,”[57] frames the right to freely choose one’s spouse under Article 16.[58] The UDHR articulates a core set of fundamental rights and also spurred the creation of “60 international human rights instruments, which together constitute a comprehensive system of legally binding treaties for the promotion and protection of human rights.”[59] One of these legally binding treaties is the International Covenant on Civil and Political Rights (“ICCPR”) which, prior to 1975, also recognizes the right to choose one’s spouse. Article 23(3) states that “[n]o marriage shall be entered into without the free and full consent of the intending spouses.”[60]

The ICCPR has been overwhelmingly supported by a vast range of countries and many of its provisions are now considered to have customary international law status. However, some states consider certain provisions of the ICCPR as contentious. One of these provisions is Article 23. Several countries have expressed reservations against Article 23 but member parties have objected to these reservations.

The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (“Marriage Convention”)[61] Article 1(1) states that “[n]o marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.”[62] The Marriage Convention has yet to be signed by Cambodia. It entered into force in 1964. To date, only Bangladesh has entered a reservation that challenges “the full and free consent of both parties” clause.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16(1)(b) also guarantees the right to freely choose “a spouse and to enter into marriage only with . . . free and full consent.”[63] Although CEDAW was created specifically to protect the rights of women, it also reflects the right to consensual marriage generally. Many states, particularly those that practice arranged marriages, have entered reservations for Article 16. However, the majority of these states’ reservations were not entered against the right to consensual marriage, but to the other rights outlined in Article 16.

Analyzing these international human rights instruments, most of which entered into force before the temporal jurisdiction of the ECCC, one could argue that it was foreseeable and accessible to the KR that their conduct was prohibited by the international community. Although none of the instruments examined explicitly provide for criminal liability “it is not necessary for [] individual criminal responsibility of the accused to be explicitly stated in a convention for the provisions of the convention to entail individual criminal responsibility under customary international law.”[64] Moreover, the egregious nature of the crime—forcing two people, sometimes at the threat of death to enter into a lifelong partnership—further supports the foreseeability element. Nevertheless, questions remain about whether criminal liability for violating an individual’s right to freely choose one’s spouse existed during the temporal jurisdiction of the ECCC.

C. Conclusion
The nullum crimen barrier is a significant hurdle to surmount. It may be difficult for the Prosecution to establish that criminal liability existed for forced marriage during the temporal jurisdiction of the ECCC. Although the force, threat of force or coercion element of forced marriage should easily pass the nullum crimen test, it may be problematic to establish that individual criminal liability existed for non-consensual marriage at the relevant time. If the Prosecution can establish that criminal liability existed, the prohibition against non-consensual marriage should pass the foreseeability/specificity and accessibility elements of nullum crimen.

VI. Charging Forced Marriage as an Other Inhumane Act

Even if nullum crimen obstacles can be overcome, the Prosecution will have to combat arguments that forced marriage and sexual slavery are indistinguishable. In 2008, the ICC’s Pre-Trial Chamber I concluded that “sexual slavery also encompasses situations where women and girls are forced into “‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.”[65] However, the Prosecution can legitimately address these critiques and potentially conflicting jurisprudence by pointing out the differences between forced marriage as it took place in Sierra Leone, Rwanda and Uganda, and forced marriage as it took place in Cambodia under the KR.

VIII. Conclusion

Survivors of forced marriage who were interviewed by the writer expressed that they believed that forced marriage should be a crime because marriages pre-KR were different from forced marriages during the DK. The survivors provided numerous reasons as to why: 1) during the KR period you could not deny their order to marry because denial could lead to death; 2) often you were forced to marry someone you had never met the very day that you were informed that you were getting married; and 3) after being forced to marry, you worked so hard and had to live separately that you rarely saw your spouse. These survivors have no knowledge of international criminal law and no knowledge of the ongoing dialogue surrounding sexual slavery and forced marriage; they are articulating their experience of the harms they have suffered.

See full report here:

[1] Kasumi, Gender-Based Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975-1979), at 18 (2d ed. 2008).
[2] Khamboly Dy, A History of Democratic Kampuchea (1975-1979), at 2.
[3] AFRC Case, Case No. SCSL-2004-16-A, Judgment, ¶ 176 (Feb. 22, 2008).
[4] Bridgette A. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity, 19 Colum. J. Gender & L. 539, 543 (2010).
[5] Id. at 585.
[6] AFRC Case, ¶ 195.
[7] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[8] Id. ¶ 459.
[9] Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Sept. 17, 2003).
[10] Id. ¶ 191.
[11] Peg Levine, A Contextual Study into the Weddings and Births Under the Khmer Rouge: The Ritual Revolution 4 (2007).
[12] Toy-Cronin, supra note 4, at 554.
[13] Any enumerated crime against humanity must satisfy additional co-textual elements. The enumerated crime must also “be committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds.” See Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 5.
[14] See id.
[15] Statute of the International Criminal Tribunal for Rwanda, art. 3(g) (1994); Statute for the International Criminal Tribunal for the Former Yugoslavia art. 5(g); Statute of the Special Court for Sierra Leone, art. 2(g), Aug. 14, 2000; Rome Statute of the International Criminal Court, art. 7(1)(g)-1, adopted July 17, 1998; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 598 (Sept. 2, 1998).
[16] RUF Case, Case No. SCSL-04-15-T, Judgment, ¶ 2306 (Mar. 2, 2009).
[17] Kasumi, supra note 1, at 45.
[18] Neha Jain, Forced Marriage as a Crime Against Humanity, 6 J. Int’l Crim. Just. 1013, 1021 (2008).
[19] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[20] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Commentary), art. 23, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC Commentary].
[21] See Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 154 (May 21, 1999).
[22] GC Commentary, art. 3 (“It is always dangerous to try to go into too much detail – especially in this domain.”).
[23] Kriangsak Kittichaisaree, International Criminal Law 127 (2001).
[24] Kayishema, Case No. ICTR-95-1 at ¶ 151 (May 21, 1999).
[25] Id ¶ 149, 586-87.
[26] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 697 (Sept. 2, 1998).
[27] Id. ¶ 688.
[28] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[29] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[30] Although the ICC has indicted people for the crime of sexual slavery no judgment or jurisprudence has yet come out of the indictments. The warrants of arrest for Harun (May 1, 2007), Kushayb (May 1, 2007) and Katanga and Chui (Sept. 30, 2008) include a charge of sexual slavery. International Criminal Court, All Cases, ICC, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/.
[31] RUF Case, Case No. SCSL-04-15-T at ¶ 160.
[32] Id. ¶ 176.
[33] AFRC Case, Case No. SCSL-2004-16-A, Judgment (Feb. 22, 2008).
[34] Id. ¶ 196.
[35] Karine Belair, Unearthing the Customary Law Foundations of “Forced Marriages” During Sierra Leone’s Civil War: The Possible Impact of International Criminal Law on Customary Marriage and Women’s Rights in Post-Conflict Sierra Leone, 15 Colum. J. Gender & L. 551, 553 (2006).
[36] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 8 (May 31, 2004).
[37] See ICJ Statute, Article 38(1).
[38] Antonio Cassese, International Criminal Law 16 (2d ed. 2008).
[39] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 50 (May 31, 2004).
[40] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 25 (May 31, 2004).
[41] Rethinking International Criminal Law: The Substantive Part 56 (Olaoluwa Olusanya ed., 2007) [hereinafter Rethinking].
[42] Cassese, supra note 39, at 44.
[43] Rethinking, supra note 43, at 56.
[44] C.R. v. the United Kingdom, [1995] ECHR 20190/92, ¶ 34 (1995).
[45] Rethinking, supra note 43, at 55.
[46] Cassese, supra note 39, at 46.
[47] Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Colum. Hum. Rts. L. Rev. 625, 674-75 (2001).
[48] Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
Note that although rape has existed as a criminal offence before the Nuremberg Charter, the elements of rape were not outlined until Akayesu. Gong-Gershowitz, Forced Marriage: A New Crime Against Humanity, 8 Northwestern University Journal of International Human Rights 53, 58 (2009).
[49] Boon, supra note 49, at 674-75.
[50] Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity, Allied Control Council Law No. 10, art. II(1)(c) (Dec. 10, 1945). Article II(1)(c) of Control Council Law No. 10 [hereinafter Control Council Law], http://avalon.law.yale.edu/imt/imt10.asp.
[51] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).
[52] Id; Cassese, supra note 39, at 44.
[53] See Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
[54] Gong-Gershowitz, supra note 50, at 70.
[55] Cassese, supra note 39, at 99.
[56] Toy-Cronin, supra note 4, at 563.
[57] United Nations, Universal Declaration of Human Rights, UN Human Rights Office of the High Commissioner for Human Rights, http://www.ohchr.org/en/udhr/pages/introduction.aspx.
[58] Universal Declaration of Human Rights art. 16, adopted Dec. 10, 1948, http://www.un.org/en/documents/udhr/.
[59] Id.
[60] ICCPR art. 23(3), opened for signature Dec. 19, 1966, http://www2.ohchr.org/english/law/ccpr.htm. Cambodia signed the treaty on October 17, 1980, after the temporal jurisdiction of the ECCC. Note that although Cambodia signed in 1980, it didn’t accede to the ICCPR until May 26, 1992.
[61] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, art. 1(1), opened for signature Nov. 7, 1962, 521 U.N.T.S. 231 (entered into force Dec. 19, 1964.
[62] Id.
[63] CEDAW, art. 16(1)(b), adopted Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981), http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.
[64] Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 149 (May 21, 1999).
[65] Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, ¶ 431(Sept. 30, 2008).

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