The Parameters of Enslavement and the Act of Forced Marriage

in International Criminal Law Review
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During several recent conflicts, such as the ones in Sierra Leone, Cambodia, Uganda and the Democratic Republic of Congo, women and girls – but sometimes also men and boys – were abducted and enslaved into so-called forced marriages. The Special Court for Sierra Leone issued several judgments in which it discussed the legal qualification of the act of forced marriage. In its most recent judgment, the trial judgment in the case against Charles Taylor, the Trial Chamber held that forced marriage amounts to sexual slavery. This article briefly discusses the relevant case law on forced marriage and examines the Trial Chamber’s conclusion in the Charles Taylor Judgement that forced marriage is a form of sexual slavery. For this purpose, the definition of enslavement is analysed and the parameters of this crime are set out. Building on the reasoning of the Trial Chamber in the Taylor case, the article concludes that forced marriage does indeed amount to a slavery crime and is best qualified as the broader crime of enslavement.

The Parameters of Enslavement and the Act of Forced Marriage

in International Criminal Law Review

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8)

AFRC Trial Judgement para. 1138.

10)

RUF Trial Judgement para. 1213.

12)

McKay and Mazuranaibid. p. 69.

14)

Human Rights Watchsupra note 2 p. 44; and AFRC Trial Judgement para. 1095.

15)

McKay and Mazuranasupra note 11 p. 62.

39)

Hallsupra note 38 p. 192. Traditionally slavery referred to the practice of chattel slavery. ‘Chattel’ denotes to a form of movable property thus to be reduced to ‘chattel’ refers to being reduced to an object which is legally owned by another human being (Prosecutor v. Dragoljub Kunarac et al. 12 June 2002 ICTY-96-23 and ICTY-96-23/1-A Appeal Judgement para. 117 hereinafter Kunarac Appeal Judgement). Chattel slavery therefore refers to ‘the legal capacity of an owner to treat a slave as an article of possession’ (The Queen v. Tang 28 August 2008 High Court of Australia [2008] HCA 39 para. 27 (hereinafter HCA The Queen v. Tang) emphasis added).

43)

Cottiersupra note 31 p. 443; and Tavakoli supra note 41 pp. 85 88 and 97.

45)

Allain‘The definition of slavery in international law’supra note 40 pp. 245 and 255; and Allain The Slavery Conventions supra note 37 pp. 57 and 67.

46)

Allain‘The definition of slavery in international law’ibid.pp. 254-255; and Allain The Slavery Conventions ibid. p. 496.

50)

Allain‘The definition of slavery in international law’supra note 40 p. 261.

56)

Oosterveldsupra note 52 p. 634. It was agreed that minor indicia of ownership ought not to be included in the list (Eve La Haye ‘The elements of war crimes: Article 8(2)(b)(xxii)’ in Roy S. Lee (ed.) The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Ardsley NY 2001) pp. 184-199 p. 191).

57)

La Hayesupra note 56 p. 191.

67)

HCAThe Queen v. Tang para. 26.

70)

HCAThe Queen v. Tang para. 44.

73)

HCAThe Queen v. Tang para. 32.

75)

HCAThe Queen v. Tang paras. 142 and 149.

79)

Allain‘Parameters’supra note 72 p. 19.

87)

Parrot and Cummingssupra note 82 pp. 57-58; and Judgement of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery 4 December 2001 para. 644: ‘Once the women were not free to leave free to dictate the nature and terms of their services or free to refuse services they were enslaved.’

90)

Robinsonsupra note 35 p. 65.

91)

Oosterveldsupra note 52 pp. 636-637; and Robinson supra note 35 p. 65.

94)

La Hayesupra note 56 p. 191. Purchasing a person for example is a means of obtaining a person however it also constitutes an exercise attaching to the right of ownership as opposed to abduction and recruitment which are means of obtaining only.

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