Forced marriage
The ICC Ongwen case, which was concluded in December 2022 by the Appeals Chamber, not only convicted the defendant of the crime of forced pregnancy for the first time in international criminal law, but also of forced marriage (at least before the ICC). The Ongwen case clarified the classification of forced marriage as an ‘other inhumane act’ as a crime against humanity. In addition, it recognised and solidified the conduct and harms captured by the term ‘forced marriage’, distinguishing it from other crimes against humanity. Finally, it confirmed that prosecution of forced marriage does not contravene nullum crimen sine lege principles.
It should furthermore be noted that the SCSL and the ECCC rendered convictions for forced marriage as an “other inhumane act” as a crime against humanity in several of its cases, such as in the RUF case (SCSL) and the 002 case (ECCC). In the latter case, in the Appeals Chamber Judgment, it was concluded that the forced marriage was committed against both women and men.
Sources ( a selection):
- Valerie Oosterveld, “Forced Marriage: Terminological Coherence and Dissonance in International Criminal Law”, William & Mary Bill of Rights Journal, Vol. 27, Issue 4, 1263-1282 (2019).
- Erin Baines et al., Amici Curiae Brief on Forced Marriage, Situation in Uganda, in the Case of the Prosecutor v. Dominic Ongwen, ICC-02/04-01/15-1935 (Appeals Chamber), 23 December 2021.
- Kathleen M. Maloney, Melanie O’Brien, and Valerie Oosterveld, “Forced Marriage as the Crime Against Humanity of ‘Other Inhumane Acts’ in the International Criminal Court’s Ongwen Case”, International Criminal Law Review (2023), 1-26.
Assignment 1
Read the amici curiae brief on forced marriage together with the Appeals Chamber Judgment in the Ongwen case.
(1) What did the Appeals Chamber rule on the elements of the crime of forced marriage?
(2) To what extent did the Appeals Chamber Judgment include the suggestions made in the amici curiae brief on forced marriage?
Assignment 2
Listen to the podcast of “Asymmetrical Haircuts” where several experts discuss the Appeal Chamber judgment in the Ongwen case, including on the issue of forced marriage.
The crime of forced marriage is now recognised as a crime, yet falling under the crime against humanity of “other inhumane act”. Would it be a logical next step to explicitly list forced marriage as a crime against humanity in the ICC’s Rome Statute and thus amend the Statute? In answering this question, also discuss how the crime of forced marriage is different from enslavement and sexual slavery.