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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Best and Worst Places for Women Entrepreneurs in Latin America and the Caribbean

Women selling in market (IITA Image Library)

Women selling in market
(IITA Image Library)

The Inter-American Development Bank’s Multilateral Investment Fund (IDB/MIF) has issued a study which ranks Latin American and Caribbean countries based on risks to and support for women entrepreneurs. Highlights of the study presented in this slideshow rank the countries from first to twentieth place in this slideshow.

Jamaica, my country of origin, was ranked 20th. To persons who are familiar with the prevalence of women in all areas of Jamaican business and society, this low ranking will seem surprising. Women, for example, comprise 70% of the country’s university students and 50% of its workforce; they occupy management positions at various levels of society, including a female Prime Minister who is serving for the second time.

So, if visibility of women is not enough to secure top ranking, what are the other factors that the study authors considered? I have divided them into three categories:

Category 1: Societal Conditions

  • Overall strength of the economy, as measured by fiscal conditions, level of investor confidence,
  • Political factors, such as degree of political and institutional stability and the presence of good governance
  • Degree of corruption

Category 2: Support for Micro & Small Entrepreneurs

The majority of women entrepreneurs in Latin America and the Caribbean (indeed developing and emerging countries as a whole) operate micro and small to medium-sized enterprises (MSMEs) and so the availability of the following factors can play a huge role in determining success:

  • Ability of MSMEs to access credit
  • Access to technology and to technical support by MSMEs
  • Favorability of tax rates for MSMEs
  • Legal structure supporting MSMEs
  • Costs of starting and expanding a business

Category 3: Support for Women in Business

The following factors can speak volumes about the level of support that exists for women entrepreneurs:

  • Extent of access to business associations and enterprises
  • Levels of female enrolment in vocational programs
  • Extent of crime and security risks
  • Extension of property rights to women
  • Access to and/or level of spending on social services, i.e. child support and for taking care of the elderly

While a country need not have all of these factors in place to be ranked highly as a good place for women entrepreneurs, it must be able to provide evidence of societal support across all three categories. This was clearly evident in Chile, which ranked #1 for the following reasons: (1) good fiscal conditions, political and institutional stability, strong investor confidence, and perceptions of good governance; (2)  high access to technology; and (3) good security conditions and adequate access to social services.

New leader named for UN Women

zileCome August, the United Nations Entity for Gender Equality and Empowerment of Women – the 3-year-old agency better known as UN Women – will have its 2d Executive Director. She’s Phumzile Mlambo-Ngcuka (left), formerly a Deputy President of South Africa. (Prior IntLawGrrls post on her, by Naomi Norberg, here; posts on UN Women here.) (photo credit)

On Wednesday, Ban Ki-moon, the U.N. Secretary-General, announced that he’d appointed Mlambo-Ngcuka to succeed UN Women’s 1st Executive Director, Michelle Bachelet, who’s seeking election to a new term as Chile’s President. Ban’s announcement underscored Mlambo-Ngcuka’s work on behalf of women, including her role in setting up the 5-year-old Umlambo Foundation, which “provide[s] support to schools in impoverished areas in South Africa through mentorship and coaching for teachers and in Malawi through school improvements with local partners.”en

(Cross-posted from Diane Marie Amann)

Women’s independence

congressThe 4th of July holiday tends to find me thinking about women and independence. This year’s no different, and a bit of research led to the discovery that it’s a noteworthy centenary: In mid-June 1913, women from all over the world traveled to Budapest for the International Woman Suffrage Congress.

Within a month, leaders of the movement published accounts of the Congress in Jus Suffragii, a globally distributed monthly.  Celebrated were women’s internationalism and solidarity. Delighting in Hungarian authorities’ insistence that the delegates remove their hats, Connecticut native Charlotte Perkins Gilman wrote:

‘Women went about with their heads bare and their hands free.’

Suffrage victories also were celebrated. While the Congress was in session, Jus Suffragii reported, delegate Jane Addams received a telegram telling her that women in Illinois (her home state, and, incidentally, mine) were winning the vote. The Illinois women’s suffrage law would be passed on July 1, 1913 – 100 years ago this week.

sheepEdited from July 1913 onwards by Liverpool-born Mary Sheepshanks (right), the periodical was republished by Routledge. In an introduction to that 2003 reissue, Sybil Oldfield wrote that under Sheepshanks’ leadership the periodical

‘covered such controversial and still topical subjects as the age of consent for girls, alcohol control, care of children in need, education for girls, new employment openings for women, trade union rights, divorce law reform, health insurance for mothers, maternity benefits, minimum wages, prostitution, women medical workers, women police, women’s politicians, as well as women’s right to vote and women’s war experience ….’

womens-budapest-program-copyDelegates’ opposition to war was a key issue, at the conference and thereafter. Yet within a year that opposition was voiced within the context of war: July 4, 1914, was the date of burial of an Austrian archduke whose assassination would spark World War I. As noted in an essay available here, the onset of war divided and diverted suffragists. (My earlier comments on Addams and that war are here.) Women in the United States thus would not secure a constitutional amendment guaranteeing them the vote until 1920, 2 years after the war’s end.

(credit for top left 1913 photo of delegates in Budapest and credit for middle right circa-1920s photo Mary Sheepshanks courtesy of N.Y. Public Library; credit for photo below left of 1913 Congress program. Cross-posted from Diane Marie Amann)

Criminal complaint filed over German-Swiss corporate human rights abuses in Congo

OLYMPUS DIGITAL CAMERAOn 25 April 2013, the European Center for Constitutional and Human Rights (ECCHR), in co-operation with the British human rights organization Global Witness, filed a criminal complaint with the public prosecutor’s office of Tübingen in southern Germany against a senior employee of the German-Swiss timber trading company Danzer Group. The individual in question, a German citizen, is suspected of breaching his duties by failing to prevent crimes committed by Congolese security forces. There is sufficient initial suspicion that through omission the employee was complicit in rape, inflicting bodily harm, false imprisonment and arson. The public prosecutor’s office of Tübingen is now obliged to further investigate the circumstances of the case and establish whether the Danzer employee is criminally liable.

During the early morning hours of 2 May 2011, a task force of local security forces attacked the village of Bongulu (Équateur province) in the Democratic Republic of the Congo (DR Congo). The forces submitted inhabitants of the village to abuse, rape and arbitrary arrests. During the attack, the task force used vehicles belonging to the company Siforco, a subsidiary of the Danzer group. In addition to providing vehicles and drivers, the company also paid the members of the task force for their involvement in the operation.

This incident follows a dispute between the village inhabitants and Siforco, which is based in the area, resulting from the failure of the company to abide by its contractual obligations to provide for social projects in the region.

This incident provides a typical example of the risk for companies operating in weak governance zones of becoming involved in or encouraging the violent activity of local security forces. Almost every day reports of sexual violence committed by state and non-state actors are carried by the media. Women and girls are raped or sexually abused during the course of most military and police operations. As such, the commission of sexual crimes cannot be seen simply as excessive acts of individual soldiers or police officers, but must be looked at in the broader context of the situation in the DR Congo. The European parent companies of firms operating in such environments must adapt their risk management strategy accordingly and must ensure that they are neither directly nor indirectly involved in human rights violations. In these cases organizational safeguards must be subjected to higher standards, which can be derived from existing international standards.

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“International Law & the Future of Peace”

(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)

asil_logoI am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)

I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.

(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)

I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.

Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”

As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, helena3contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.

Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prjane-addams-3ize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.

It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.

That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.

mlkIt is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.”  (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.

We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not. Continue reading

Million men asked to “Ring the Bell” in campaign against violence against women

bell
‘You can call a man who hits a woman a lot of things, but you can’t call him a man.’

– Michael Rawlings, Dallas’ mayor, announcing his support for “Ring the Bell,” a new global campaign to get 1 million men to promise to work for an end to violence against women. (credit for 1915 photo of the Liberty Bell) For more information on the campaign, go to your favorite social medium: the Web or Twitter or Facebook or YouTube.

On International Women’s Day, honoring anniversary of pathbreaking volume

unescoThis International Women’s Day offers an occasion to celebrate the 20th anniversary of Reconceiving Reality: Women and International Law, an examination of international law, politics, and practice through a feminist lens. Perhaps it is better to say “feminist lenses,” given the essays’ embrace of the indeterminacy and dynamism of the contemporary world. (UNESCO image credit)

Edited by Dorinda G. Dallmeyer and published by the American Society of International Law, Reconceiving Reality is based on papers 1st presented at an all-day session that WILIG, ASIL’s Women in International Law Interest Group, sponsored at the Society’s 1993 annual meeting. The volume’s author list is impressive: Hilary Charlesworth, Christine Chinkin, Rebecca J. Cook, Karen Engle, Judith Gail Gardam, Catharine MacKinnon, Moira McConnell, Frances E. Olsen, Robin L. Teske, J. Ann Tickner, and Shelley Wright.

Rereading these essays 20 years on underscores how quickly some things have changed. With war then still raging in the Balkans, authors pondered how the not-yet-in-operation International Criminal Tribunal for the former Yugoslavia would fare. Several worried that sexual violence – already widely reported to be  a tool of that war – would be ignored. Their concerns place in high relief the significance of the ICTY’s eventual rulings on sexual violence, as well as the express prohibitions on sexual and gender-based violence in Articles 7 and 8 of the 1998 Rome Statute of the International Criminal Court.

Some essays could have been written today. That is both a testament to their timelessness and a critique of our times: the issues these essays address continue. No less now than then, the use of force and the meaning of peace, and women’s roles with regard to both, stir intense debate. No less now than then, theory and practice alike struggle with how prevent violence – and, when prevention fails, how to assure that perpetrators will be punished and victims redressed. This is evident in the slogan for this year’s International Women’s Day observance:

‘A promise is a promise: Time for action to end violence against women.’

(Cross-posted from Diane Marie Amann)

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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