The Issue of Consent: Clarifying the Differences between Forced and Arranged Marriage

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.

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First-ever Global Arms Trade Treaty!

International law has firmer rules for the trade of commodities like bananas and electronics than it does conventional arms.

Abigail Nehring for Think Africa Press.

A key step to remedy this situation was taken today, April 2, 2013, when the United Nations overwhelmingly approved the 1st– ever global Arms Trade Treaty. The Arms Trade Treaty (ATT) aims to regulate the $70 billion business in conventional arms and keep weapons out of the hands of human rights abusers.

155 countries voted in support. Iran, Syria, and North Korea were the only countries to vote “no”. 22 other countries abstained.

Supporters included the United States, which voted “yes” despite the opposition of the National Rifle Association (NRA). The NRA has pledged to fight against the treaty’s ratification by the U.S. Senate. As the world’s number one arms exporter, U.S. support for the treaty is particularly important.

Other major arms-exporting countries  –  Russia, China , Russia, and India (ranked 2nd, 5th, and 13th respectively in arms exports) were among the 22 abstaining countries. They could, however, be persuaded to eventually sign the treaty. It is reported that some delegates, understandably, expressed concern about the effectiveness of an arms trade treaty not subscribed to by the major arms exporters.

Importance for African, Caribbean & Other Vulnerable States

Countries in Africa and the Caribbean have robustly supported and lobbied for the ATT. The international trade in arms was estimated to be worth around 100 billion US dollars in 2012 and growing fast. The unregulated trade in arms disproportionately affects the vulnerable in the small, open islands of the Caribbean and the fragile states in Africa.

Child SoldierThe CBS News Magazine, “60 Minutes” has for the last twelve years followed the journey of the Lost Boys of Sudan, the collective name given to over 20,000 young boys displaced as a result of war and the death of their parents. Thousands of young boys and girls have been “recruited” at gunpoint to become child soldiers in countries like Chad and the Democratic Republic of Congo. Illegal guns easily end up in the hands of Somalian pirates who take hostage ships and their crew. And everywhere, it is the women and girls who get raped, at gunpoint.

The Treaty

The ATT creates common standards and rules to improve the control by states of the flow of arms. It regulates all conventional arms within the following categories: battle tanks, armored combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. The treaty also contains a prohibition on the transfer of arms which would be used in the commission of genocide, crimes against humanity and certain war crimes. It institutes an annual reporting system as well as regular meetings between heads of states to monitor implementation.

The treaty will enter into force 90 days after ratified by the 50th signatory.

The Kenyan Presidential Election and the ICC

On March 3, 2013, Kenyans went to the polls and elected Uhuru Kenyatta as President.


Kenyatta’s ability to perform the necessary duties may be called into question, however, given that he is due to stand trial at the International Criminal Court this summer on charges of crimes against humanity. The charges stem from his alleged role in funding and organizing the ethnic violence that led to the deaths of an estimated 1,200 people after the last presidential election in 2007. Kenyatta has said that he will cooperate with the ICC when it comes time for him to face the charges, but the very fact that he was elected president of a country in which he allegedly masterminded post-election violence in the past is concerning. (photo credit)

It is unclear exactly what role – if any – the ICC case had in the election, and how it may have influenced voters. Some reports, however, indicate that, far from leading people to vote against Kenyatta due to the charges against him, the ICC involvement may have led Kenyans to vote for him (see here and here.) Leading up to the elections, the United States and other countries warned of consequences should Kenyatta be elected. These statements, perhaps perceived as bullying, may have had the opposite of their intended effect. Indeed, where ICC involvement is considered interference in Kenya’s domestic affairs, a vote for Kenyatta may be a vote against the ICC and the international community.

On the other hand, the ICC charges against Kenyatta may not have had much effect at all on the election, given that voting was largely along ethnic lines and Kenyatta had plenty of resources to put toward his campaign. Regardless, it will be interesting to see how the world reacts to a Kenyatta presidency, and how Kenya – and Kenyatta – will react in July once the ICC proceedings start.

Conflict-related Sexual Violence: Room for Nuance?

Violence against women has been at the forefront recently, with International Women’s Day 2013 coming hand in hand with a reauthorized Violence Against Women Act (VAWA) and following Eve Ensler’s latest V-Day campaign, OneBillionRising, in February.

Brownmiller's Classic, 1975

Brownmiller’s Classic, 1975

The first International Women’s Day was thirty-eight years ago, in 1975. That year, Angola and Lebanon saw the beginning of civil war. Indonesia invaded East Timor. The newly formed Democratic Kampuchea invaded the Vietnamese island of Phu Quoc. Susan Brownmiller published her controversial book Against Our Will: Men, Women, and Rape, challenging definitions of rape and sparking debate about sexual violence perpetrated against women.

Our understanding about violence against women has matured since 1975. It is no longer revolutionary to discuss how different forms of violence are perpetrated against women’s bodies and minds, or how there are countless contexts and geographies in which those violations take place. Our understanding about sexual violence related to armed conflict, though, is still quite young.

Zainab Hawa Bangura, UN Special Representative on Sexual Violence in Conflict (Credit: Reuters)

Zainab Hawa Bangura, UN Special Representative on Sexual Violence in Conflict (Credit: Reuters)

The need for a more nuanced, cross-disciplinary dialogue about conflict-related sexual violence was the focus of the historic Missing Peace Symposium that took place in Washington, DC, from February 14-16, 2013. Together with the United States Institute of Peace, the Stockholm International Peace Research Institute, and the Peace Research Institute of Oslo, the Human Rights Center at UC Berkeley School of Law gathered over 200 academics, civil society members, policymakers, and military officials working to end conflict-related sexual violence.  We were joined by key figures such as UN Special Representative on Sexual Violence In Conflict, Zainab Hawa Bangura, former Ambassador-at-large for Global Women’s Issues, Melanne Verveer, and the ICC Prosecutor’s Special Adviser on International Criminal Law Prosecution Strategies, Patricia Viseur Sellers.

Our goals for the Symposium were three-fold: a.) to share what we know about conflict-related sexual and violence – and how we actually know it, b.) to identify what we still need to learn in order to improve protection, prevention, and accountability, and c.) to connect the dots between researchers, practitioners, policymakers, and funders to promote effective communication, transfer of knowledge, and coherent response.

One of the primary messages from the conference was that, like violence against women generally, conflict-related sexual violence is not a monolith. Eradication requires first understanding its nuance.

For example, according to the Uppsala Conflict Data Program, there were 28 interstate and intrastate armed conflicts in 2011. While not all of those conflicts were marked by sexual violence, there are increasing reports documenting its occurrence.

However, as Dara Cohen,  Amelia Hoover Green, and Elisabeth Jean Wood note in a special report published for the Symposium, there is wide variation when it comes to who perpetrates sexual violence in armed conflict, when it occurs, and why. Wood’s research in particular illuminates the fact that not all fighting groups engage in “widespread, systematic” sexual violence, as would constitute a crime against humanity. Her research also notes examples of asymmetry between opposing groups’ perpetration in a single conflict, as well as occasional fluctuation within a single group’s conduct over time.

We need to understand why some groups do and others do not engage in sexual violence during conflict in order to a.) counter some commanders’ claims that control over their troops was impossible, and b.) develop strategies to prevent perpetration of sexual violence by other fighting groups. Continue reading

Some Characteristics of Times of Transition in International Law: Shift from Marginality to Centrality (on the occasion of women’s day)

One of the most vivid characteristics of any moment of transition is that aspects that used to be in the margins, in the sense that they were merely tolerated but were not in the core of the system, become more and more important. Sometimes, these aspects were even disregarded because they did not fit the prevailing framework. When they were strong enough to be mentioned they were often presented as deviations, as “the exception that confirms the rule”. Most of the times, they were aspects not worth being regulated since they fell out of the agreed framework. The migration of these realities from the periphery to the nucleus of the conceptual/institutional prevailing framework is one sign of changing times. Of course, in periods of transition, the prevailing features do not disappear and so the result is a quite unique mixture of characteristics of different models that often battle for achieving dominance. The process, however, is normally gradual, in the sense that we are not faced with a situation of a Kuhnian revolution  but merely of a series of accommodations of aspects that could be prevalent in several different models.  Along this process the weakening of the (classical) model becomes evident, since its internal coherence holds together with growing difficulty.

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