An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of “Forced Marriage”

Palmer, Amy | January 1, 2009

Gender-based war crimes have occurred for centuries and, until the modern development of ad hoc tribunals, had been largely ignored by the international community and viewed as inevitable consequences of war. Gender-based violent crimes and sexually violent crimes have been charged in the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the for Sierra Leone (SCSL). The most recent gender-based international criminal prosecutions took place in the SCSL trials of the leaders of the Armed Forces Revolutionary Council (AFRC) and the Revolutionary United Front (RUF). During the armed conflict, soldiers forced women and girls to marry members of their group. The SCSL recognized this crime as “forced marriage” and categorized it as one of the “other inhumane acts” under the umbrella of crimes against humanity. For the first time in history, a court found military leaders guilty of committing other inhumane acts through forced marriage. Forced marriage subjects women to a particular psychological and moral suffering different than that experienced by victims of rape or sexual slavery. This discrepancy results from the fact that forced marriage involves forced conjugal status but may not always be sexual in nature. Therefore, it is wholly inappropriate to subsume incidences of forced marriage under the current crimes against humanity paradigm failing to specify forced marriage as one of the other inhumane acts constituting such crimes. The SCSL decisions noted the importance of charging crimes based on the uniquely damaging practice of forced marriage rather than merely focusing on certain commonalities within the offenses and charging individuals with either rape or sexual slavery. Not only has the acknowledgment of forced marriage as a crime against humanity helped advance the cause of women in , but these decisions are also significant for their potential impact on the prosecution of atrocities in the International Criminal Court (ICC). Every situation the ICC is investigating involves reports of forced marriages. Continued acknowledgement of the specific crime of forced marriage will only further the cause of women around the world, and the charge of forced marriage should therefore be recognized by the ICC as a new and independent crime against humanity.