Marriage by Force?

Front matter

MARRIAGE BY FORCE?

Contestation over Consent and Coercion in Africa dited by 4 ‘Annie Bunting Benjamin N! Cawrance and Richard L. Roberts

MA

Chapter Twelve

“To Be Taken as a Wife Is a Form of Death”: The Social, Military, and Humanitarian Dynamics of Forced Marriage and Girl Soldiers in African Conflicts, c. 1990-2010

Afterword: Historicizing Social Justice and the Longue Durée of Forced Marriage Emily S. Burrill

About the Contributors Index

CONTENTS

323 327 vii

Foreword

DORIS BUSS

Marriage, perhaps more than any other social institution, highlights the complexity of violence against women. As this volume demonstrates, both marriage and violence are situated in a complex spectrum of practices and classifications. Their intersection at the point of forced marriage—and its association with violence in armed conflicts on the African continent— has brought to the fore difficult questions about how sexualized forms of harm, as well as their enmeshment in social practices such as marriage, should be understood as harms and as wrongs. These questions are diffcult because they require disentangling the complicated relationships between social structures, particularly those presumed to be essential and foundational, and the continuum of violence against women. At what point is marriage forced? What constitutes coercion? How do physical, cultural, and economic relations structure the ways in which some forms of coercion are visible and others are not?

Feminists have long made the case that violence against women, particularly in the context of war, needs to be seen as part of a continuum where the spectacular forms of violence—such as rape in war or the targeting of schoolgirls in Nigeria, Uganda, or Pakistan—are linked to “mundane” daily acts of violence—such as street harassment, employment inequality, or intimate partner violence. But the continuum of violence is surprisingly difficult to see. This volume highlights some reasons why. The chapters assembled here provide close readings of different country contexts and varied historical periods to tease out the ways in which “the spectacular hides the mundane.’ The analyses in these chapters help to reveal the ways in which social structures and norms are positioned as so essential and enduring that we lose sight of just how variable, changing, and historically contingent they actually are.

This collection provides the sort of historically informed and finely grained analysis needed to go beyond the spectacle of contemporary imaginings of forced marriage, to disentangle the very ideas of force and marriage and the conditions needed for the two terms to be brought together in a single sentence. Issues of consent and conjugal union emerge here as long-standing preoccupations of colonial rulers; as social dramas in which changing expectations about labor and control, both within and outside the “family,” are worked out; and as contexts for the contestation of different discourses about girls, women, and the meaning of justice.

A historical focus provides a rich unpacking of consent and conjugal union, where both emerge as dynamic, multivalent concepts over multiple country-specific case studies. The complex historical approach also insists that we pay attention to the moments of stasis, the legal and social dramas where ideas about marriage and rightness seem to fix and cohere. If we want to understand specifically how the spectacular hides the mundane, then we need to look at these moments that often appear in the form of legal disputes. The “frozen in time” quality of law, for all its limits, also provides a productive vantage from which to examine some of the currents, tensions, and discourses through which the wrongs of forced marriage materialize at some moments and in particular ways. Attending to social dramas and their legal contexts provides a basis from which to explore the why and why now questions. Why and in what terms are marriage and consent emerging as issues of concern, at this point in time and in this way?

It is significant that international criminal law is a key site where contemporary concerns and framings of forced marriage are unfolding. International criminal law, though it tends to offer a comparatively ahistorical understanding of conflict and its harms, is also an important arena for expressing the hopes of a more (gender-) equal future and one that might be secured through transitional justice. The various legal and bureaucratic institutions built around securing this transition make the task of unraveling the harms of forced marriage particularly urgent.

Naming and officially recognizing gendered forms of harm are essential to any postconflict transition, one where political, social, and economic institutions are reconstituted.’ International criminal courts have x DORIS BUSS become prominent sites where this process of recognition (or misrecognition) unfolds.” Identifying gendered harms is necessarily linked to the ways in which the postconflict future is imagined and the terms of public life and citizenship established. In this context, it is more imperative than ever that we bring a complex, historically informed, close reading to the terms by which concepts of force and marriage are understood.

1. Doris Buss, “Performing Legal Order: Some Feminist Thoughts on International Criminal Law,” International Criminal Law Review: Special Issue on Women and International Criminal Law 11 (2011): 409-23; Fionnuala Ni Aoláin, “Emerging Paradigms of Rationality: Exploring a Feminist Theory of Harm in the Context of Conflicted and Post-conflicted Societies? Queens Law Journal 35, no. 1 (Fall 2009): 219-44; Aolain, “Advancing Feminist Positioning in the Field of Transitional Justice,” International Journal of Transitional Justice 6, no. 2 (2012): 205-28.

2. Nancy Fraser, “Rethinking Recognition,” New Left Review 3 (May-June 2000): 113.

FOREWORD xi

Acknowledgments

As is always the case, this edited volume is much more than the sum of its parts. Fresh on the heels of the completion of Trafficking in Slavery’s Wake (Ohio University Press, 2012), coeditors Benjamin Lawrance and Richard Roberts first conceived of a joint project examining the intersection of slavery and forced marriage at an annual meeting of the African Studies Association in Washington, DC, in November 2011. In conversations with coeditor Annie Bunting, we soon found shared interests and concerns and began to plan our collaboration.

The majority of papers in this volume were assembled from a symposium examining forced marriage practices in Africa, convened as part of the third Conable Conference in International Studies at the Rochester Institute of Technology (RIT), in Rochester, New York. The symposium and publication of this volume were made possible with a generous grant from the Social Science and Humanities Research Council of Canada (SSHRC), and additional funding for the symposium and conference came from the Harriet Tubman Institute for Research on Africa and Its Diasporas at York University; the Avon Global Center for Women and Justice at Cornell Law School; the Susan B. Anthony Center for Women’s Leadership at the University of Rochester; the Department of History at Stanford University; and the Department of Criminal Justice, the Program in Women’s and Gender Studies, the Program in International and Global Studies, and the Department of Sociology and Anthropology, all part of the College of Liberal Arts at RIT. Maps and photographs were made possible with support from the Department of History at Stanford University. Proofreading and indexing by Meridith Murray were underwritten with a grant from RIT’s College of Liberal Arts.

The editors deeply appreciate the remarkable talents of the staff at Ohio University Press, particularly Gill Berchowitz, Ricky Huard, Nancy Basmajian, Jeffrey Kallet, Sebastian Biot, Samara Rafert, John Pratt, Kristi xiii

Goldsberry, Rebecca Welch, and the anonymous reviewers. We are grateful for the excellent work of Philip Schwartzberg in preparing the maps included in this volume and for the index expertly prepared by Meridith Murray. And we are most indebted to January Mvula, the executive director of Sustainable Rural Community Development in Malawi (SURCOD), for granting permission to use his photograph on the cover of this volume. SURCOD is part of a consortium of nongovernmental organizations working to improve the lives of girls and women throughout the world, affiliated with Safe World for Women alliance.

We would like to thank our families for their patience, generosity of spirit, and limitless support. Richard Roberts thanks the John Simon Guggenheim Memorial Foundation for a fellowship that enabled him to devote the time needed to develop and complete this project and to the African Studies Center seminar at Emory University, where participants engaged seriously with the issues raised in this volume and provided many useful insights. Benjamin Lawrance thanks the invaluable support of his invincible assistant, Cassandra Shellman. Annie Bunting thanks her colleagues at the Tubman Institute for their intellectual and institutional support, and in particular, she thanks Yael Machtinger and Karlee Sapoznik, who provided vital research assistance and worked as rapporteurs for the forced marriage symposium.

We are very grateful for such a fruitful collaboration throughout this process.

Annie Bunting

Benjamin N. Lawrance Richard L. Roberts xiv ACKNOWLEDGMENTS

Introduction

Something Old, Something New?

Conceptualizing Forced Marriage in Africa

FORCED MARRIAGE features prominently in historical and contemporary accounts of gender relations throughout sub-Saharan Africa. Forced marriage—also known by a variety of other terms, including, but not limited to, marriage by capture, servile marriage, forced conjugal associations, war brides, and marriage in absentia—affects millions of Africans, predominantly women and girls. In some popular accounts, forced marriage is depicted as a new and urgent human rights violation demanding immediate action from national governments and the international community. In these accounts, ironically, forced marriage is both a fresh crisis and an ancient tradition.’ The accounts of contemporary “marriage without consent” or “enslavement in war for forced marriage” are often put in uncritical comparison with historical marriage practices, which were the subject of colonial debate, intervention, and regulation. These comparisons are often made in the absence of empirical data and knowledge. Such uncritical analogous thinking runs the risk of doing a disservice to both historical understanding of African marriage practices and contemporary advocacy to address violence in marriage. And like other pressing contemporary human rights struggles, ranging from trafficking to domestic violence, forced marriages in Africa defy many attempts at interpretation and analysis.

This collection of new research places African forced marriages in broader social structures and historical contexts that shape gender, marriage, and human rights. The authors in this volume investigate dimensions of gender subordination, the diversity of sexualities and sexual identities, sociolegal regulation, resistance, and liberation in the context of conjugal relationships of the past and the present. The collection focuses on the role marriage plays in the mobilization of labor, the accumulation of wealth, the prevalence of dependent status, and slippage between marriages and other forms of gendered violence, bondage, slavery, and servile statuses. The chapters presented here also investigate the continuities, ruptures, and inventions of forced marriage practices of the colonial and postcolonial eras and the contemporary period. Although forced marriage has, since the mid-2000s, been the subject of scholarly inquiry and popular attention, it has received inadequate attention in the fields of African studies, law and society, and slavery studies. Where scholars do engage with these issues, few speak to audiences outside their fields. As Jean Allain and others have argued, servile marriage has been a neglected dimension of slavery studies, and forced marriage has only recently emerged as a scholarly topic in legal studies.’ Here, we bring together legal scholars, anthropologists, historians, gender equity activists, and development practitioners to examine forced marriage, consent, and coercion across time and place in Africa.

As with so many human rights issues, the spectacular hides the mundane, and the popular discourse misses the range of experiences and changes over time. In the case of “child, early, and forced marriage,” the focus of policy and academic discussion is often reduced to “child marriage.” And even “child marriage” is further reduced to “girl brides? Thus, though a lack of capacity to consent to marriage due to age is a dimension of forced marriage, the concentration on girls obscures analysis of the limitations on consent more generally. We hear much less about forced marriage than we do about girl brides married to much older men in India, Afghanistan, and Ethiopia, sometimes in group weddings.* Photographer Stephanie Sinclair, who documented child marriages over a decade, produced the exhibit Too Young to Wed.’ In an interview, she compares the fight against child marriage to the antiapartheid movement:

Just like every other human rights issue, like apartheid or civil rights, it is real and important to the people who are going through it. And the only reason it’s happening to these girls is because they are girls... . Their lives are being held back because they are girls. This issue isn’t going to be resolved in a couple years. Maybe in our lifetime. Just like we fought for civil rights 50 years ago and racism is still a huge issue in our country, no single thing will solve this. People are just figuring out it’s an issue. We've started, but we have a long way to go.°

Early and forced marriages have been on the human rights agenda since before the contemporary human rights movement and the Universal Declaration of Human Rights (UDHR), but today, we are seeing an unprecedented level of international attention given to the issue. Like all human rights issues, change will come when the depth and complexity of the problem are realized and when policies and programs address changes at both the international level and in local communities.

FRAMING FORCED MARRIAGE IN LAW AND POLITICS

Forced marriage has been framed in a variety of ways in law, politics, and popular advocacy over its long documented history. Forced marriages are often represented as matters of slavery, crimes against humanity, women and children’s rights, or human trafficking. The issue was an object of concern in Africa for missionaries, colonial administrators, anthropologists, social reformers, and antislavery activists. These concerns were articulated first in the context of civilizing missions that sought to change African marriage practices. Both before and after World War I, as examined in this volume in the chapters by Brett Shadle and Richard Roberts, colonial administrators debated whether bridewealth and early marriage were akin to slave trading and slavery. The lack of consent to marriage was historically clustered in debates over “native marriage” in Africa—concerns that included age and capacity to consent, polygyny, seclusion, and violence in marriage. In addition to framing forced marriage as a matter of colonial social engineering, with the establishment of the League of Nations forced marriage was seen as slavery or a practice similar to slavery. The debates on the ground in Africa regarding bridewealth, consent in marriage, and age of consent resonated with debates in European capitals and emerging international organizations.’

Though not explicitly included in the 1926 Slavery Convention, child marriage in particular was referred to by antislavery activists as a form of slavery. The drafters of the convention, having considered native marriage practices, concluded that forced marriage or dowry ought not be included in the 1926 convention. In his analysis of the debates within the Temporary Slavery Commission, Jean Allain writes that the commission concluded both customary law and Muslim law do not regard marriage as involving the purchase of a wife or an act of enslavement even if the situation may approximate slave dealing.’ Nonetheless, after discussion of practices similar to slavery including forced and child marriage, the League of Nations adopted the 1926 Slavery Convention, of which article 1(1) states, “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”?

Significant debate remained as to whether servile forms of marriage ought to be included in the definition of slavery. Whether these marriages could be considered slavery depended on the conditions at the time of the marriage and also on whether “the powers attaching to the right of ownership” were exercised over the spouse, as required by the 1926 definition.” It is important to note that marriage without consent of one of the spouses does not generally meet the convention threshold for servile status. However, as we will discuss and as was discussed throughout the colonial period, bridewealth—as the transfer of goods and services for rights in persons—may meet this measure. Clearly, the framers of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery thought so. The post-World War II era experienced the development of a much more robust framework for international human rights and human rights conventions.

The 1956 Supplementary Convention includes child exploitation and marriage without the right to refuse where consideration (in legal terms this applies to anything of value promised to another when entering into a contract) is exchanged as forms of slavery as defined in the Slavery

Convention of 1926." Article 1(c) of the 1956 Supplementary Convention calls for the suppression of any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or

(ii) The husband of a woman, his family, or his clan has the right to transfer her to another person for value received or otherwise; or

(iii) A woman on the death of her husband is liable to be inherited by another person.”

Here, the language is “given in marriage” for money or consideration, “transferred” or “inherited, indicating that this prohibition was targeted at families treating girls and women as chattel. In other words, the 1956 Supplementary Convention developed a critique of familial and community practices, some of which came to be referred to as “harmful traditional practices.” In current child marriage advocacy, for the most part only Anti-Slavery International, Walk Free Foundation, and Free the Slaves frame the issues of forced and child marriage as a matter of “modern slavery?” The nomenclature of slavery operates as a powerful rhetorical and symbolic tool in efforts to combat severe exploitation in marriage.

In international human rights law and many national legal regimes, forced marriage refers broadly to cases where one or both spouses are married without their full and free consent. This is wider in scope than servile marriage and is a matter of state responsibility. The Universal Declaration of Human Rights states that

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

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

Shortly after the UDHR and the 1956 Supplementary Convention, the United Nations (UN) passed a treaty on age and consent to marriage. The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriage mandates that national governments pass laws that prohibit child marriage and require full and free consent to marriage.’ The 1979 Convention on Elimination of All Forms of Discrimination against Women (CEDAW) reiterates this prohibition on child marriage and marriage without consent in article 16.

Age and consent have figured prominently but paradoxically in the international law of marriage rights. Although consent and the capacity to consent are assumed to be requisite elements of legitimate marriage, international human rights law has deferred to States Parties to determine when young people have the requisite age of maturity. The UDHR notes in article 16 that men and women of full age have the right to marry, but it does not specify what “full age” means. Even the 1962 Convention on Consent to Marriage and CEDAW do not specify a minimum age at marriage or how to ascertain what constitutes meaningful consent. In its preamble, the 1962 convention calls on states to take all appropriate measures with a view to abolishing such customs, ancient laws and practices by ensuring, inter alia, complete freedom in the choice of a spouse, eliminating completely child marriages and the betrothal of young girls before the age of puberty, establishing appropriate penalties where necessary and establishing a civil or other register in which all marriages will be recorded.”

Article 2 of the convention calls on States Parties to set national marriageable ages in law and to establish marriage registries.

In 1965, the United Nations passed a nonbinding recommendation on marriageable age that included in Principle II that “Member States shall take legislative action to specify a minimum age for marriage, which in any case shall not be less than fifteen years of age”! The 1989 Convention on the Rights of the Child defines a child as anyone under the age of eighteen years. This standard is now read into the definitions of child marriage. The debates today take up children’s rights not to be married and women’s rights to fully and freely consent to marriage. Most recently, the African Union passed the Protocol to the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa (2003).” In article 6 of the protocol, States Parties are called on to enact legislation to guarantee a minimum marriage age of eighteen years and free and full consent to marriage. The article also instantiates monogamy as the “preferred form of marriage.”

Notwithstanding international efforts to concretize terminology, in the first decade of the new millennium forced marriages in conflict situations ushered in new challenges. Notably, in 2008 the Appeals Chamber of the Special Court for Sierra Leone (SCSL) determined in the trial of rebel soldiers affiliated with the Armed Forces Revolutionary Council (AFRC) that the practices described as forced marriage constituted a separate crime against humanity, as another and distinct inhumane act.” The Trial Chamber found the practice of sexual slavery to constitute a crime against humanity.” The International Criminal Court (ICC) issued indictments in Uganda for similar practices as “sexual enslavement.” In the Democratic Republic of the Congo, the ICC indictments include the war crimes of “sexual slavery and rape.’ In the Extraordinary Chambers in the Courts of Cambodia, lawyers for civil parties requested in February 2009 that the prosecutor conduct a supplementary investigation with the aim of amending the indictments in a case to include forced marriage.”

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The former UN special rapporteur on systematic rape, sexual slavery, and slavery-like practices during armed conflict, Gay J. McDougall, reported in 1998 that sexual slavery “also encompasses situations where women and girls are forced into ‘marriage; domestic servitude or other forms of labor that ultimately involve forced sexual activity, including rape by their captors.” The SCSL established the new crime against humanity of “other inhumane act (forced marriage)” in the Appeals Chamber decision regarding the AFRC to hold commanders responsible for the harms described as the “bush wife phenomenon’ In that case, the legal precedent was set, but convictions on this ground were not entered. But the SCSLs prosecution of commanders of the Revolutionary United Front (RUF), another rebel army in Sierra Leone, resulted in a conviction for committing crimes against humanity.

In the RUF appeals decision, the court laid out the elements according to the SCSL statute as follows:

With respect to forced marriage, the Appeals Chamber recalls that the offence “describes a situation in which the perpetrator[,] ... compels a person by force, threat of force, or coercion to serve as a conjugal partner.” The conduct must constitute an “other inhumane act; which entails that the perpetrator: (i) inflict great suffering,

or serious injury to body or to mental or physical health; (ii) sufficiently similar in gravity to the acts referred to in Article 2.a through Article 2.h of the Statute; and that (iii) the perpetrator was aware of the factual circumstances that established the character of the gravity of the act. As a crime against humanity, the offence also requires that the acts of the accused formed part of a widespread or systematic attack against the civilian population, and that the accused knew that his crimes were so related.”

According to Valerie Oosterveld, this new definition of the crime of forced conjugal association substantially adds to the recorded history of gender-based violence within the conflict in Sierra Leone and thereby contributes to transitional justice in that country.” This definition may also have a substantial impact on future indictments from the ICC. With the conclusion of its work in Freetown, the SCSL moved on to the legacy stage of its mandate. The two most important precedents from the perspective of the offices of the prosecutor and registrar of the Special Court for Sierra Leone are its decisions on recruiting children into soldiering and forced marriage.

However, there appears to be no universal agreement on whether forced marriage under wartime is a human rights crime. The 2012 SCSL case involving Charles Taylor revisited the matter and found that the new crime against humanity of forced marriage was flawed and inaccurate.” The Taylor decision held that the term marriage should be avoided and that conjugal form of enslavement more accurately described the experience of women and girls who were abducted and held by rebels for long periods of time for sexual and other labor. The earlier Appeals Chamber decision for the AFRC did not enter fresh convictions because the court was “convinced that society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners,’ being “part of a widespread or systematic attack against the civilian population,’ was “adequately reflected” insofar as “such conduct is criminal and that it constitutes an ‘Other Inhumane Act’ capable of incurring individual criminal responsibility.” The 2012 Taylor decision upended this.” It focused initially on the enslavement and then on the sexual aspect, and in so doing, it addressed the “linguistic camouflage” critique of the use of the term forced marriage.” The Taylor verdict also recognized that enslavement through forced labor can be a gendered crime, leading Oosterveld to opine that “conjugal slavery” may have “clear expressive benefits” over the “forced marriage” formulation.” The term conjugal slavery signals the organization of labor in war and the severity of the crime, while also distinguishing it from peacetime marriage without consent.

Despite the legal recognition that servile marriage is a form of slavery, the prosecution strategies and judicial decisions of the ICC and the SCSL do not yet show a coherent approach or theory for holding perpetrators responsible for practices of forced marriage. Although the international legal standards make it clear that the constituent elements under the rubric of forced marriage—such as torture, rape, and forced impregnation—are distinct crimes against humanity, it remains unclear whether the totality of crimes amounts to slavery, sexual slavery, or some “other inhumane act? The academic commentary is also mixed in assessing the relative merits of charging forced marriage as slavery or as a new and separate crime. On the one hand, when forced marriage is framed as a form of slavery, it is recast as the most serious crime against humanity, one with the longest and richest history of global prohibition. On the other hand, to successfully prosecute forced marriage as a form of slavery, the court must find that the perpetrator had “powers attaching to ownership over a person” (1926 Slavery Convention) or “a similar deprivation of that person’ liberty” (Rome Statute of 1998).

The Rome Statute of 1998, establishing the ICC and its Elements of Crimes, expands the 1926 definition of slavery—“any or all of the powers attaching to the right of ownership” over a person—with the additional phrase “or similar deprivation of liberty.” Enslavement in the Rome Statute explicitly signals analogous situations. Thus, there is good reason to argue that the practice described variously as the “bush wife phenomenon” or “forced marriage” in Uganda or Sierra Leone would meet this definition of enslavement (see the chapters by Mariane Ferme and Stacey Hynd in this volume). Nonetheless, any effort to designate contemporary practices as forms of slavery may provoke charges of analytical overreach and rhetorical excess. Even if we accept that some practices can legitimately be described as a form of slavery or enslavement, it does not necessarily follow that the relevant actus reus (criminal act), such as exercising the powers of ownership, can be easily applied to specific cases of forced marriage in either wartime or peacetime.” Some observers will be very concerned that prosecuting practices referred to as forced marriage in conflict situations as forms of slavery will lead to higher standards of proof for forced marriage in nonconflict situations. The context and conditions of war are substantively different from times of relative peace, and therefore, forced marriage in nonconflict zones would not necessarily meet the definition of slavery, nor would it be required to do so. The Supplementary Convention of 1956 defines servile marriage, and not all forms of marriage without consent meet this definition.