Academic journal article Brigham Young University Law Review

Forced Marriage at the Cambodian Crossroads: ECCC Can Develop a New Crime against Humanity

Academic journal article Brigham Young University Law Review

Forced Marriage at the Cambodian Crossroads: ECCC Can Develop a New Crime against Humanity

Article excerpt

I. INTRODUCTION

Forced marriage is a unique crime with distinctive results. For both male and female victims, their lives after being forced into an unwanted marriage will never be the same. In addition to the initial suffering, forced marriage "compels two people to spend the rest of their lives with a spouse whom they did not choose and who may serve as a constant reminder of what they suffered."3

Forced marriage is one of the newest crimes to be tried as a crime against humanity, despite having several instances of the crime occurring without prosecution. in the past decade, international law has made significant strides in the criminalization and prosecution of forced marriage as a crime against humanity. However, progress has not moved fast enough, and will likely not gain significant traction as a crime against humanity without clarification of what elements constitute the crime, why it is unique, and how it can be prosecuted. This paper will discuss the history, current state, shortfalls, struggles, and future of forced marriage as a crime against humanity.

Part ii of this paper will discuss the international treaties prohibiting forced marriage. Part III will analyze the history and the development, treatment, and legal analysis of forced marriage in international tribunals. Part III will also trace the crime of forced marriage from the first mention a mere fifteen years ago through the most recent trials. Part IV will discuss the unique characteristics of the crime, as perpetrated in the Khmer Rouge regime. Part V will then suggest five ways the tribunal in Cambodia can use the unique characteristics of the crime to make progress in understanding the crime. Part VI will briefly discuss the difference between forced marriage and arranged marriage.

II. GOVERNING LAW

Treaties, agreements, and customary law have long protected family rights. For over 140 years, there has been international law designed to protect the rights of families, but the history of enforcement of these laws is limited.

The Declaration of Brussels in 1874 stated that "[f]amily honour and rights . . . must be respected."4 Six years later, this statement was adopted in the language of the oxford Manual, one of the first treatises to compile the principles of international law relating to armed conflict.5 Shortly thereafter, the Hague Conventions of 1899 and 1907 reiterated the principle, repeating that "[f]amily honour and rights, the lives of persons, as well as religious convictions and practice, must be respected."6 Four decades after these conventions, the landmark Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, gave the clearest prohibition of forced marriage. It explicitly states in Article 16:

"2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."7

In December 1979,8 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was passed by the General Assembly and provides explicitly in Article 16(1)(b) that men and women must equally have "[t]he same right freely to choose a spouse and to enter into marriage only with their free and full consent[.]"9 This treaty has been signed by 188 countries.10 Similar provisions were passed in Article 23 of the International Covenant for Civil and Political Rights11 and Article 1 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage.12

The Rome Statute of the International Criminal Court (the Rome Statute) lists crimes that can be prosecuted by the International Criminal Court. Forced marriage, while not listed, meets the thresholds of several of the listed crimes within the various categories. The principle of non-retroactivity would prohibit the application of the Rome Statute to the Khmer Rouge trials. …

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