Recommendation:

1. To add forced marriage as a standalone violation to the list of prohibited acts in Article 2(1) of the draft Crimes Against Humanity Convention.
2. If deemed necessary, to add a definition – “compelling a person to enter into a conjugal union with another person by the use of physical or psychological force, or threat of force, or by taking advantage of a coercive environment” – to Article 2(2).

Addition of Forced Marriage to Article 2(1)

Under the crimes against humanity category of ‘other inhumane acts’, acts of forced marriage have been successfully prosecuted at the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC). In those cases, forced marriage was classified under the category of ‘other inhumane acts’ because it was not explicitly listed in the statutes of any of those tribunals. The drafting of the Crimes Against Humanity Convention represents an ideal opportunity to rectify this oversight and explicitly recognize forced marriage as a standalone prohibited act.

In 2009, in Prosecutor v. Sesay et al., the SCSL Trial Chamber convicted the defendants of forced marriage, and this finding was upheld by the Appeals Chamber. This represented the first conviction for forced marriage as an ‘other inhumane act’ crime against humanity under international criminal law. In 2018, the ECCC Trial Chamber convicted defendants for forced marriage as the crime against humanity of ‘other inhumane acts’ and the crime against humanity of rape within the forced marriage context. This was confirmed by the ECCC Supreme Court Chamber in 2022. In 2021, in Prosecutor v. Ongwen, the Trial Chamber rendered the ICC’s first conviction for forced marriage, and this was confirmed on appeal in 2022. Over the last 14 years, international courts have consistently concluded that forced marriage constitutes the crime against humanity of ‘other inhumane acts’. These judgments covered forced marriage committed during a time span of more than four decades and in three different contexts. In each case prosecuted, defendants have questioned the validity of recognizing forced marriage because it is not an explicitly listed prohibited act under the crimes against humanity provision of the courts’ respective statutes. Inclusion of forced marriage in the list of prohibited acts would: (1) more directly reflect the gravity and widespread nature of forced marriage in armed conflict and atrocity situations; (2) recognize the strength of the case law described above; and (3) avoid continuous re-litigation on the nature of forced marriage and its status in international criminal law. We do not recommend adding forced marriage to the list of sexual and reproductive acts in Article 2(1)(g) as it is not only a sexual or reproductive violation, and does not require such a violation, as explained below.