Due to the frequent overlap with arranged marriage, confusion often arises as to how forced marriage should be classified under international criminal law. This has led scholars, courts, and legal practitioners to either subsume forced marriage under sexual slavery, ignore forced marriage in criminal indictments despite contrary evidence, or label it as an “other inhumane act” under crimes against humanity. To clarify these misconceptions, forced marriage should be removed from the “other inhumane acts” category and should be enumerated as a distinct crime against humanity alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute. However to understand forced marriage, it is important to distinguish forced marriage from arranged marriage.
Forced marriage occurs when a perpetrator compels a person through threats or force into a conjugal association, resulting in great suffering, or serious mental or physical injury on the victim. An arranged marriage is a marital union based on the spouses coming together through an arrangement, often through family members acting as fiduciaries to the parties entering the marriage. The one issue tying these marriages is the degree or lack of consent between the parties.
First, consent is an absolute and essential right within the context of any marriage. Article 16(2) of the Universal Declaration of Human Rights reads, “Marriage shall be entered into only with the free and full consent of the intending spouses.” Consent is also an essential element in establishing a valid marriage under Article 23 of the International Covenant on Civil and Political Rights and Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Furthermore, the UN Secretary-General, Kofi Annan, in his 2006 study on violence against women, defined forced marriage as one that “lacks the free and valid consent of at least one of the parties.” Since the lack of consent is an important element in defining forced marriage, it is important to demonstrate that the lack of consent in an arranged marriage does not meet the threshold necessary to elevate arranged marriage to a crime against humanity.