Monthly Archives: June 2016

Forced marriage as an independent crime against humanity in the ICC decision confirming the charges against Dominic Ongwen

International human rights law prescribes that marriage shall only be entered into with the free and full consent of both spouses.[1] Forced marriage thus constitutes a human rights violation and is also a criminal offence in the domestic law of some countries.[2] Additionally, international criminal courts have recently determined that forced marriage may amount to a crime against humanity when forming part of a systematic or widespread attack against a civilian population. The present post analyses the evolution of this new crime against humanity, from its conceptualisation as a form of sexual slavery to its recognition as a separate crime against humanity falling under the category of ‘other inhumane acts’. The latest stage in this evolutionary process was reached by the Pre-Trial Chamber II of the International Criminal Court (‘ICC’) in its decision of 23 March 2016 confirming the charges against Dominic Ongwen.[3] By acknowledging the particular features of forced marriage and distinguishing it from sexual slavery, this decision critically enables the prosecution of the crime in situations as prima facie different as the phenomenon of ‘bush wives’ in African armed conflicts and the state policy of ‘group marriages’ enforced in Cambodia under the Khmer Rouge.

Forced marriage as subsumed by the crime of sexual slavery

The practice of forced marriage in conflict situations has been prevalent in countries including Sierra Leone, the Democratic Republic of the Congo and Uganda. Within these contexts, it has generally involved the abduction of young women ‘taken as wives’ by rebel soldiers and thereafter exposed to enslavement, rape, forced labour and forced pregnancy. Forced marriage was charged as a crime against humanity for the first time before the Special Court for Sierra Leone (‘SCSL’) in the case of Prosecutor v. Brima, Kamara and Kanu (‘the AFRC case’).[4] The main point of contention regarding this charge in the SCSL Trial Chamber’s decision was whether to characterise forced marriage as a separate crime against humanity, under the category of ‘other inhumane acts’ in article 2(i) of the SCSL Statute, or as a predominantly sexual crime amounting to a form of sexual slavery.

The Prosecution argued that acts of forced marriage are ‘distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion.’[5] Accordingly, it alleged that forced marriage qualified as the crime against humanity of an ‘other inhumane act’, the key element for its characterisation as such being that the conduct is of similar gravity to other listed crimes against humanity.[6] The Trial Chamber, however, rejected this view on the basis that the evidence was not capable of establishing a crime of forced marriage distinct from sexual slavery. It determined that the relationship between the perpetrators and the victims of forced marriage was one of ownership – a constituent element of the crime of sexual slavery – and that the use of the term ‘wife’ merely indicated the intent of the perpetrator to exercise said ownership.[7] The Trial Chamber held that the victims of forced marriage within the armed conflict in Sierra Leone did not endure particular trauma from the mere use of the label ‘wife’, over and above the harm ensuing from the ‘sexual slavery’ element of the crime. It went so far as considering that, even if there had been evidence of such additional trauma, the crime would not be of similar gravity to the other listed crimes against humanity, a condition for being characterised as an ‘other inhumane act’.[8] The majority of the Trial Chamber, Justice Doherty dissenting, concluded that forced marriage is completely subsumed by the crime of sexual slavery and that ‘there is no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ as an ‘other inhumane act.’[9]

Forced marriage as a separate crime against humanity

The SCSL Appeals Chamber overturned this decision on the basis that forced marriage as practised in Sierra Leone amounted to more than sexual slavery both in terms of the conduct itself and of the ensuing harm.[10] In the first place, it considered that ‘the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime.’[11] The Appeals chamber emphasised that this marital relationship entailed mutual obligations for both parties, the ‘wives’ being coerced into performing various duties, including sexual intercourse, domestic labour and forced pregnancy, while the ‘husbands’ provided food, clothing and protection, notably against rape by other men. It underlined the exclusive character of the relationship, at least on the part of the victim, as an element distinguishing forced marriage from sexual slavery and giving a different dimension to the crime.[12]

Contrary to the Trial Chamber, the Appeals Chamber also considered that the imposition of marriage on the victims resulted in suffering of similar gravity to that caused by the other listed crimes against humanity and that forced marriage was thereby capable of qualifying as an ‘other inhumane act’. It stressed that, in addition to the harm ensuing from the ‘sexual slavery’ element of the crime, ‘bush wives’ and their children born from the forced marriage ‘suffered long-term social stigmatisation’ by their association with the perpetrators and faced difficulties in reintegrating their community after the war.[13] The Appeals Chamber defined forced marriage as ‘a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.’[14] It found that, when forming part of a systematic or widespread attack against a civilian population, this practice amounts to the crime against humanity of an ‘other inhumane act’.

The phenomenon of ‘bush wives’ differs in several respects from forced marriage as practised in Cambodia under the Khmer Rouge. In the latter context, forced marriage was one element of a state policy aiming to assert complete control over every aspect of the lives of individuals, including their sexuality. It involved the selection of spouses by the regime leadership on the basis of their membership to a same category of people. Their marriage in ‘group weddings’ were solemnized by the swearing of an oath of loyalty to the Khmer Rouge.[15] Forced marriage in Cambodia pursued the primary aims of severing pre-existing family ties, in order to guarantee complete loyalty to the regime, and controlling the procreation of individuals, rather than subjecting the victims to sexual slavery.

In the closing order of case 002, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) qualified forced marriage as the crime against humanity of an ‘other inhumane act’, following the definition set out by the SCSL Appeals Chamber.[16] They determined that acts of forced marriage practised under the Khmer Rouge satisfied the elements of this definition since they were part of a widespread attack against the civilian population and entailed the forced imposition of a marital status on the victims, which resulted in severe physical or mental suffering of a degree of gravity comparable to the other listed crimes against humanity.[17] The applicability of the SCSL Appeals Chamber definition to situations as different as the ‘bush wives’ phenomenon in African armed conflicts and the Khmer Rouge policy of forced marriage seems to confirm the viability of this crime as a separate crime against humanity distinct from sexual slavery.

The evolving position of the ICC

In the decision on the confirmation of charges against Katanga and Ngudjolo, the ICC’s Pre-Trial Chamber I seemed to agree with the SCSL Trial Chamber that forced marriage is a form of slavery. Indeed, when considering a charge of sexual slavery, it held that this crime ‘also encompasses situations where women and girls are forced into “marriage”, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.’[18]

However, in the more recent decision on the confirmation of charges against Ongwen, the ICC’s Pre-Trial Chamber II took note of the evolution of the definition of forced marriage in the case-law of the SCSL and of the ECCC. It confirmed that forced marriage ‘constitutes the crime of an other inhumane act within the meaning of article 7(1)(k) of the [Rome] Statute’, warranting a charge distinct from sexual slavery.[19] The ICC Chamber concurred with the SCSL Appeals Chamber in finding that ‘the central element of forced marriage is the imposition of “marriage” on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s “wife”’.[20] It also underlined the exclusivity of this conjugal relationship as ‘the characteristic aspect of forced marriage’, an element distinguishing the crime from sexual slavery and other crimes against humanity.[21] With regard to the ensuing harm, the ICC Chamber held that the social stigma resulting from the imposition of marriage entails ‘that the victims of forced marriage suffer separate and additional harm to those of the crime of sexual slavery, or other crimes under the Statute.’[22] Indeed, it determined that the interest protected by the characterisation of forced marriage as an ‘other inhumane act’ is ‘the basic right to consensually marry and establish a family’, as enshrined in international human rights instruments, which differ from the values underlying the crime of sexual slavery, i.e. physical and sexual integrity.[23]


International criminal courts appear to have settled on the view that forced marriage, when forming part of a widespread or systematic attack against a civilian population, may amount to the crime against humanity of an ‘other inhumane act’ if the conduct satisfies two elements, irrespective of whether it also amounts to sexual slavery. The first is the imposition of marriage on the victims without their consent. The second requires that this forced conjugal association inflicts severe physical or mental suffering on the victims. This definition has proved to be, on the one hand, wide enough to adequately capture the main features of the crime as committed in very different contexts and, on the other hand, narrow enough to distinguish it from the often analogous crime of sexual slavery. It will be interesting to see if the constituent elements of the crime will be confirmed by the Trial Chambers of the ICC and of the ECCC in the two cases involving a charge of forced marriage that are currently pending before those courts, thereby completing the decade-long process of elaboration of a new crime against humanity.

[1] Universal Declaration of Human Rights (10 December 1948) UN Doc A/810 91, art 16(2); International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 191, art 23(3); Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (10 December 1962) 521 UNTS 231, art 1; Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) 1249 UNTS 13, art 16(1)(b).

[2] For example, English law has recently been amended to make forced marriage a criminal offence liable to a maximum sentence of 7 years’ imprisonment, see section 121 of the 2014 Anti-social Behaviour, Crime and Policing Act, entered into force 16 June 2014.

[3] Situation in Uganda, Prosecutor v Ongwen, Decision on the confirmation of charges, Case no ICC-02/04-01/15, 23 March 2016.

[4] Prosecutor v Brima, Kamara and Kanu, Trial Judgment, Case no SCSL-04-16-T, 20 June 2007.

[5] Ibid, para 701.

[6] On the elements of the crime of other inhumane acts, see ibid, para 698.

[7] Ibid, para 711.

[8] Ibid, para 710.

[9] Ibid, para 713.

[10] Prosecutor v Brima, Kamara and Kanu, Appeals Judgment, Case no SCSL-04-16-A, 22 February 2008.

[11] Ibid, para 190.

[12] Ibid, para 191.

[13] Ibid, para 199.

[14] Ibid, para 196. See also Prosecutor v. Sesay, Kallon and Gbao, Appeals Judgment, Case no SCSL-04-15-A, 26 October 2009, para. 736.

[15] See Neha Jain, ‘Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013, 1024-1025. See also Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 841-861.

[16] Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 1442-1445.

[17] Ibid.

[18] Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo, Decision on the confirmation of charges, Case no ICC-01/04-01/07, 30 September 2008, para 431.

[19] Prosecutor v Ongwen, Decision on the confirmation of charges (n 3), para 95.

[20] Ibid, para 93.

[21] Ibid, para 93.

[22] Ibid, para 94.

[23] Ibid.


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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins


Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.


The facts


The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]


Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.


[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.



[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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