Under international law, forced marriage has emerged as its own form of gendered violence, distinct from sex-related crimes — a phenomenon explored in depth in a report released last month by the Global Accountability Network (GAN), a collective of international criminal prosecutors and practitioners who supervise and work with law students on specific atrocity projects. Drawing from cases at the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC), the report emphasized the unique conduct and harms associated with forced marriage, including mental trauma and social stigmatization. Its authors — GAN researcher Sara Godfrey and GAN Founder and SCSL Founding Chief Prosecutor David Crane — argued for prosecuting forced marriage as an inhumane act, which offers a more comprehensive approach to addressing gender-based crimes and recognizes the distinct nature of these offenses beyond mere sexual acts.
To learn more about these shifts in international justice, JURIST Deputy Managing Editor for Interviews Pitasanna Shanmugathas spoke with author Sara Godfrey.
JURIST: Can you discuss the evolution of how the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC) have prosecuted forced marriage? How has this evolution contributed to the understanding of forced marriage as a distinct crime?
Sara Godfrey: At the SCSL, the Office of the Prosecutor (OTP) was faced with the choice to either prosecute instances of forced marriage under the already existing count of sexual slavery or to charge forced marriage as a ‘new’ crime using the ‘other inhumane acts’ clause of the crimes against humanity statute. The SCSL Prosecution opted for the latter, recognizing the distinct nature of forced marriage due to the unique conduct and harm experienced by victims extending beyond sexual violence. Despite the Defense and Trial Chamber’s efforts to confine instances of forced marriage to the charge of sexual slavery, the SCSL ultimately convicted six defendants of forced marriage as an inhumane act. This novel approach, although not without resistance, was later adopted by the ICC in Prosecutor v. Ongwen and Prosecutor v. al Hassan (ongoing). Both of these cases have relied heavily on jurisprudence from the SCSL in charging forced marriage as an inhumane act and countering attempts to confine forced marriage to the charge of sexual slavery. This evolution represents a shift from focusing solely on the sexual elements of the crime to recognizing forced marriage as a broader gender-based crime that encompasses a range of gendered harms, both sexual and non-sexual.
JURIST: Can you provide an overview of the key findings and insights from your examination of the prosecution of forced marriage in conflict situations, specifically focusing on Sierra Leone, the Democratic Republic of the Congo (DRC), Uganda, and Mali?
Godfrey: Our article finds that a focus on the gendered dimensions of forced marriage exposes key distinctions between the crimes of forced marriage and sexual slavery, thus necessitating the charging of forced marriage as an inhumane act as a crime against humanity. In each of these cases, a focus on gender allows us to recognize that forced marriage is a crime reliant on socially constructed ideas of gender related to a ‘wife’s’ role in the given society. This perspective exposes that the perpetrator uses marriage not for ownership or enslavement, but as a means to coerce victims into fulfilling the gendered role of spouse. The imposed status of ‘wife’ carries unique harms that go beyond acts of sexual violence, often including forced domestic labor, forced reproduction, mental trauma, and lasting social stigmatization. These harms can be categorized as gender-based harms, which can further be broken down into gender-based sexual harms, gender-based non-sexual harms, and gender-based reproductive harms. This approach allows us to move away from conflating gender-based violence with strictly sexual acts and advocate for charges that encompass all of the harms endured by victims of forced marriage.
JURIST: Your article emphasizes that forced marriages in Sierra Leone, the DRC, Uganda, and Mali were primarily perpetrated by males forcing women and girls into the spousal role of “wife.” Can you discuss the gendered expectations and societal norms that underlie these forced marriages?
Godfrey: Forced marriage is an inherently gendered crime as it relies on socially constructed ideas of a spouse’s – ‘husband’s’ and/or ‘wife’s’ – role in the given society. In each of these scenarios, women and girls were forced to fulfill the gendered role of ‘wife’ and complete the corresponding ‘wifely’ duties. These duties often included cooking, cleaning, childbearing, child-raising, serving as their ‘husband’s’ exclusive partner, and obeying all of his sexual demands. Underlying these duties are gendered expectations and norms that define women as caregivers, homemakers, reproducers and providers of sexual services. Therefore, in each of these cases, forced marriage was an expression of patriarchal values and societal norms that correspond to what it means to be female and ‘wife’ in the given society.
JURIST: What unique conduct, harms, and consequences does a focus on the gendered dimensions of forced marriage reveal, differentiating it from sexual slavery?
Godfrey: If we recognize that at its foundation, forced marriage is a gender-based crime reliant on socially constructed ideas related to the victim’s gender and corresponding spousal role, three key distinctions between forced marriage and sexual slavery are revealed. First, a focus on gender exposes how the perpetrator associates with and asserts power over the victim. As opposed to ownership for enslavement, during forced marriage, the perpetrator uses a constructed ‘marriage’ to force the victim to fulfill the gendered role of spouse. This conduct is gendered and unique to forced marriage. Second, this approach highlights the distinct obligations and harms that result from the labeling of victims as ‘wives’ and forcing them to fulfill this spousal role. For example, forced domestic duties, forced reproduction, social stigmatization, and mental trauma. Third, forced marriage often involves an element of exclusivity that is not present during other crimes of sexual violence, namely sexual slavery. This is a direct result of the imposition of ‘marriage’ and corresponding gendered ideas of what ‘wife,’ ‘husband,’ and ‘marriage’ mean in the given society. In each of these cases, a core aspect of ‘marriage’ was an exclusive partnership, further differentiating forced marriage from the crime of sexual slavery.
JURIST: What challenges and objections have been raised regarding the validity of forced marriage as an inhumane act? How has the ICC addressed or navigated these challenges?
Godfrey: Cases at both the SCSL and ICC have faced consistent objections over the validity of charging instances of forced marriage under the ‘other inhumane acts’ clause of the crimes against humanity statute. At the core of these objections is a debate of whether or not the sexual element of forced marriage is so dominant that it supersedes the other aspects of the crime. At the SCSL these objections initially won, with the Trial Chamber ruling that forced marriage was ‘clearly sexual in nature’ and therefore captured by the charge of sexual slavery. This decision was eventually overturned when the Appeals Chamber ruled in favor of forced marriage as an inhumane act, citing the unique conduct and harms associated with the crime. However, despite this ruling, similar objections over the validity of forced marriage as an inhumane act continued at the ICC. In reaction, the ICC has relied heavily on jurisprudence from the SCSL to build the case that forced marriage is both a crime distinct and of sufficient gravity to qualify as an inhumane act. Additionally, ICC policy papers on gender-based crimes have assisted in parsing the distinctions between gender-based crimes and sexual violence, further supporting the fact that gendered violence must not always be sexual to amount to a prosecutable offense. Overall, despite persistent objections, each case at the ICC has gradually come closer to recognizing forced marriage as a distinct gender-based crime best prosecuted as an inhumane act.
JURIST: In what manner does the Prosecutor v Ongwen case contribute to the understanding of forced marriage as a distinct crime encompassing a range of gendered offenses beyond the sexual realm?
Godfrey: As the first ICC case to prosecute and convict a defendant of forced marriage as an inhumane act, Prosecutor v. Ongwen was pivotal in recognizing forced marriage as a broader gender-based crime. In response to the Defense’s objection to the validity of forced marriage as an inhumane act, the Appeals Chamber commissioned Amici Curiae briefs on forced marriage and sexual slavery in international law. The Court endorsed the Oosterveld et al. Brief, which contextualized forced marriage as a gendered crime distinct from sexual slavery and of sufficient gravity to qualify as an inhumane act. Critically, the brief recognized the role of gendered expectations and assumptions for the crime’s perpetration, defining forced marriage by the forced ascription of spouse and resulting rights violations. The Court accepted this framing, ruling that forced marriage was not a one dimensional crime limited to sexual violence alone. Rather, the Court endorsed a more comprehensive view of the crime by focusing on the range of harms that result from imposing the status of ‘wife’ on victims, particularly in terms of mental trauma and stigmatization. This view not only affirmed the legitimacy of forced marriage as an inhumane act but laid the foundation for contextualizing forced marriage as a crime encompassing a range of gendered harms – sexual, non-sexual, and reproductive.
JURIST: The Ongwen case highlighted the recognition of the unique social stigmatization and mental trauma experienced by victims of forced marriage. How has this recognition evolved over time, and what impact does it have on the prosecution of these cases?
Godfrey: The initial failure to recognize the unique social stigmatization and mental trauma experienced by victims of forced marriage as distinguishing factors of the crime was a result of the tendency to view the sexual elements of the crime as dominant. Greater recognition of the social and mental harms experienced by victims of forced marriage, such as that in the Ongwen case, offers a more comprehensive view of the crime. Forced marriage is a multidimensional form of gender-based violence – it often involves a sexual, non-sexual, social, mental, and reproductive dimension. Highlighting the unique social stigmatization and mental trauma experienced by victims both captures the complexities of the crime and further legitimizes the prosecution of forced marriage as an inhumane act on behalf of these distinctions. Recognition of these aspects of the crime greatly increased through the Ongwen final conviction and will likely translate into the ongoing al Hassan case.
JURIST: The article concludes by advocating for the continued prosecution of forced marriage as an inhumane act and recognizing it as a broader gender-based crime. How does this approach offer opportunities for international courts to address the distinct conduct and harms associated with forced marriage in a more comprehensive manner?
Godfrey: Prosecuting forced marriage as an inhumane act as a crime against humanity offers an opportunity for international courts to adopt a more holistic view of gender-based crimes. The ‘other inhumane acts’ clause of the crimes against humanity statute permits the prosecution of crimes of similar gravity that are not explicitly listed within the court’s statute. Using the ‘other inhumane acts’ clause to prosecute gender-based violence therefore offers an opportunity for courts to recognize gendered crimes beyond the already enumerated crimes of sexual violence. This allows international courts to prosecute forced marriage in a more comprehensive manner by accounting for the crime’s distinct conduct and harms that are not limited to sexual acts.
JURIST: What is the main point you would like readers to take away from the article you both have co-authored?
Godfrey: Focusing on gender is important. If we can reframe our approach to prosecuting crimes committed against women and girls from starting with gender as opposed to jumping to sexual violence, it is possible to capture the true range of harms experienced by victims of gender-based crimes. The tendency to focus on sexual violence is limiting and neglects to recognize the range of harms experienced by victims of gendered violence beyond the scope of sexual violence. This approach is becoming more accepted, especially as the recently updated ICC Policy on Gender-Based Crimes has defined gender-based crimes as the overarching concept, with sexual violence and reproductive violence as sub-categories. This is extremely important as international courts approach atrocity situations involving forms of gendered violence that are not limited to sexual acts, such as that present in forced marriage and instances of gender-based persecution.
