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35 Utrecht J. Int'l & Eur. L. 1 (2020)

handle is hein.journals/merko35 and id is 1 raw text is: UTRECHT JOURNAL OF Victoria May Kerr, 'Should Forced Marriages be Categorised as INTERNATIONAL AND EUROPEAN LAW 'Sexual Slavery' or 'Other Inhumane Acts' in International Criminal Law?' (2020) 35(1) Utrecht Journal of International and European Law pp. 1-19. DOI: https://doi.org/10.5334/ujiel.473 RESEARCH ARTICLE Should Forced Marriages be Categorised as 'Sexual Slavery' or 'Other Inhumane Acts' in International Criminal Law? Victoria May Kerr* Gender-based crimes occur to this day in armed conflicts across the globe. Forced marriages were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they should be categorised in international criminal law (ICL). The main question this paper examines is: should forced marriages be categorised as 'sexual slavery' or 'other inhumane acts' in ICL? The principle of nullum crimen sine lege (the NCSL principle), is used as a tool by which judgments from international criminal tribunals and the ICC can be objectively assessed. Judges have generally held that it is more appropriate, in line with the NCSL principle, to categorise forced marriages as 'other inhumane acts'. However, the paper finds that they are relying on authorities which are competent in an international human rights law (IHRL) context, but are not directly transferrable to ICL. The paper illuminates the broader debate between certainty and development in ICL and demonstrates how the tribunals and the ICC have attempted to strike a balance in cases involving forced marriages. It seeks to provide a solution which ensures that perpetrators of forced marriages in armed conflict are convicted and justice is served and respects both certainty and IHRL. Keywords: Sexual slavery; Other inhumane acts; Principle of legality; International Criminal Law; Forced marriage; Gender-based crimes; International Criminal Court; Crimes against Humanity I. Introduction Gender-based crimes occur to this day in armed conflicts across the globe. Thousands of women and girls have been, and continue to be, victims of gender-based crimes carried out as weapons or tactics of war, or due to the fact they were, or are, viewed as prizes of victory.1 For a time, gender-based crimes were con- sidered as the 'forgotten' crimes of international law,2 as victims were 'misunderstood and marginalized not only by their local communities, but also by the international criminal legal system'.3 However, the ad hoc international criminal tribunals and the International Criminal Court (ICC) in recent years have taken leaps in showing their commitment to prosecuting such atrocities: prime examples being convictions for forced marriages at the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the ICC.4 Forced marriages were rife in the conflicts in Sierra Leone, Cambodia, and Uganda, and a 'sharp debate' has emerged as to how they should be categorised as a crime against humanity in international criminal * BTO Solicitors LLP, GB. kerrv@hotmail.co.uk I Chile Eboe-Osuji, International Law and Sexual Violence in Armed Conflicts, (Martinus Nijhoff Publishers, 2012), p. 90. 2 Antonio Cassese (ed.), The Oxford Companion to International Criminaljustice, (Oxford University Press, 2009), p. 76. Frances Nguyen, Untangling Sex, Marriage, and Other Criminalities in Forced Marriage, Goettingen Journal of International Criminal Law, (2014), Volume 6, No. 1, p. 44. 4 See, for example, Prosecutor vAlex Tamba Brima et al., SCSL-2004-16-T, Trial Chamber Judgment, 20 June 2007, Partly Dissenting Opinion of Justice Doherty on Count 7- sexual slavery, and Count 8 -'forced marriage'; Prosecutor vAlex Tamba Brima et al., SCSL- 2004-16-A, Appeals Chamber Judgment, 22 February 2008; Closing Order, Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan, Case File No. 002/19-09-2007-ECCC-OCIJ, OCIJ 15 September 2010; Prosecutor v Charles Ghankay Taylor, SCSL-03-01-T, Trial Judg- ment, 18 May 2012, Prosecutor v Dominic Ongwen, Decision on the confirmation of charges, ICC-02/04-01/15, 23 March 2016.

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