Should Human-Rights Treaties Define the International Crime of Forced Marriage?

Abstract

Forced marriage is an offence not listed as a crime in international criminal law (ICL) statutes. However, various international criminal courts have continued to prosecute individuals for, and convict them of, committing the offence of forced marriage. This raises an unanswered question regarding the principle of legality. This principle is at the centre of criminal justice and critical to the realisation of the accused’s right to a fair trial. Article 22 of the Rome Statute embraces the principle of legality by stating that an accused cannot be charged with an act or omission that did not constitute an offence at the time it was committed. Where sexual and gender-based crimes are not proscribed, those accused cannot be charged, which infringes on the rights of women to access justice. Conversely, on account of the principle of legality, if perpetrators are charged and prosecuted when no such crime is proscribed under ICL statutes, the fair-trial rights of the accused are violated as the principle of legality is undermined. It is, however, notable that there are provisions in international human-rights instruments (including article 23(3) of the International Covenant on Civil and Political Rights, and article 16(2) of the Universal Declaration of Human Rights) that prohibit forced marriage. Moreover, in terms of article 21 of the Rome Statute, applicable law before the International Criminal Court (ICC) includes “where appropriate, applicable treaties and the principles and rules of international law”. This article assesses whether there is room for recourse to be had to international human-rights law treaties to give meaning to the crime of other inhumane acts for purposes of prosecuting the crime of forced marriage, and what the implications are for the principle of legality.