RESEARCH QUESTION

Specific legislation criminalising the act of forcing someone to enter into a marriage is on the rise. During the past decade, many European countries, including Belgium, Norway, Denmark, Germany, Austria and England (as of 2014), have introduced a specific offence of forced marriage in their criminal laws. On the international level, the Sierra Leonean bush wife phenomenon sparked the question of whether forced marriage ought to be classified as a ‘new’ crime against humanity (i.e. as an ‘other inhumane act’), or whether it is caught by existing crimes against humanity such as (sexual) enslavement. This research focused on the question of whether, and, if so, how the practice of forced marriage should be criminalised under Dutch law and international law (with a particular focus on the Rome Statute of the International Criminal Court). In order to answer this question, the phenomenon of forced marriage was first described, after which frameworks – consisting of criminalisation criteria – were created for the levels of national and international law. After analysing current Dutch, English and international criminal law in relation to forced marriage, these criteria were applied to the practice of forced marriage.

THE PRACTICE OF FORCED MARRIAGE

Forced marriages take place all over the world, in times of conflict as well as in times of peace. Universal and regional human rights instruments, such as the UDHR, the ICCPR and the ICESCR, discern the right to marry and the right not to marry without full and free consent. This means that a forced marriage, i.e. a marriage at least one of the partners entered into against their will as a result of some form of coercion that was exerted by another party, constitutes a human rights violation. In many cases, a marriage arranged by parties other than the spouses themselves will be at the basis of a forced marriage. That is to say, an arranged marriage may turn into a forced marriage in those cases where the wishes of the arrangers are not in line with the wishes of the one(s) for whom the arrangements are made, and the former nevertheless force the latter to enter into the marriage.

INTRODUCTION

In the previous two chapters, criteria for criminalisation on the level of national and international law were discussed. As announced in the General Introduction to this book, the procedure to uncover these principles differs markedly between the two levels. National criminal law has the benefit of being able to draw from a rich tradition of doctrinal discussions concerning the issue of criminalisation. For international criminal law, this is not (yet) the case; rather, acts have been criminalised on an ad hoc basis throughout the years. Whereas the framework for criminalisation on the level of national law contains a number of clear principles, the same cannot be said for international criminalisation. Due to the specific nature of international criminal law – created, mainly, by diplomats and based on consensus – and the regime of the Rome Statute – limiting the ICC's jurisdiction to the crimes listed in the Statute – the criminalisation framework presented in Chapter 5 looks more like a road map of criminalisation than a schematic collection of principles.

In this chapter, the two ‘frameworks’ for criminalisation are compared to each other. This is done by applying the national criteria listed in Chapter 4 to the international level. This comparison opens up the possibility of cross-pollination between the two levels: some principles that were uncovered as relevant to criminalisation in national law may also be applicable to international law and vice versa. Such a comparison may prove to be fruitful for criminalisation (doctrine) discussions.

HARM AND WRONG: A HIGHER THRESHOLD

International criminal law is a special sort of law: it only deals with the worst crimes imaginable. Crimes against humanity are inhumane acts that cause victims great suffering. War crimes are serious violations of the laws applicable in armed conflict. Genocide, the crime of crimes, is aimed at the destruction of a group of people. In other words, it does not get more serious than that. As a consequence, the harm and wrong principles – which are also condiciones sine quibus non for criminalisation in international law – have higher thresholds in international criminal law than on the level of national criminal law. Minor harms and minor wrongs will not, and should not, be codified in the Rome Statute.

INTRODUCTION

The problem dealt with in this dissertation concerns the issue of access to essential medicines by patients in the developing world. The core of the problem is that a great number of patients in developing countries do not have adequate access to essential medicines for a variety of reasons, resulting in a devastating effect on public health world-wide. The research question addressed here is the following: Does patent protection interfere with patients’ access to essential medicines? And, how do we define “interfere”, “access” and “essential medicines”?

The WHO considers adequate access to medicines a priority health issue and stated that improvement in access to essential medicines and vaccines for patients could result in saving more than 10 million lives within one year. The WHO estimates that the share of people lacking access to medicines has fallen since 1975, when half of the world's population lacked sufficient access to essential medicines to a third of the world's population in 1999. However, due to a rise in the world's population, the absolute number of people lacking access has not changed much and is still at around 1.7 billion. The majority of patients lacking access, around 80% (that is 1.3 billion people) live in low-income countries. Developing countries are disproportionately affected due to high disease burdens, lack of resources, poor health care systems, and no or insufficient research and development targeted at diseases mainly prevalent in developing countries. In the developing world, and especially Sub-Saharan Africa mortality rates are high due to the large number of people falling ill to infectious diseases, like AIDS which is responsible for 19% of all deaths. Other diseases like malaria, pneumonia, diarrhoea, measles and tuberculosis also claim many lives. Although life expectancy rates have increased in the last century, they vary greatly in different regions of the world. It is the developing world that suffers most from these kinds of infectious diseases. Therefore the focus of this dissertation is on access within the context of developing countries.

INTRODUCTION

During the last decade, there has been much debate both within the international and domestic context on the issue of patients’ access, or lack thereof, to essential medicines. This issue has been especially relevant for developing countries, where pandemics like HIV/AIDS have taken hold, with devastating results for their populations, and who are in dire need of good quality medication. Within the human rights field it is often argued that patients have a right of access to essential medicines. Although such a right of access to medicines is not explicitly mentioned in any of the international or regional human rights treaties, it is deduced from the codified human right to health. Moreover, accessibility of medicines is argued to include affordability of medicines. As was shown in chapter 2, in developing countries, which are the focus of this research, high medicine prices curtail patients’ access to essential medicines. In part, these high, and as such possibly unaffordable, medicine prices are ascribed to the 20-year monopoly enjoyed by pharmaceutical corporations patenting new medicines. This link between the patent protection of medicines and patients’ access to such medicines became a topic of much debate and research, particularly after the negotiation and entry into force of the Agreement on Trade-related aspects of Intellectual Property Rights as an annex to the Agreement establishing the World Trade Organisation. Namely, the TRIPS Agreement provides for minimum standards of intellectual property rights, including patents. Not only activists, but also international organisations started to further examine the link between patients’ (lack of) access to medicines as a human rights issue with regard to the minimum patent standards as required by TRIPS.

Before being able to examine the legal relationship between patents and patients’ possible right of access to medicines, the latter issue must first be situated within the broader context of international human rights protection.

INTRODUCTION

In this chapter, a framework is constructed that will assist in answering the central research question: should forced marriage be criminalised under international criminal law, more specifically under the Rome Statute and, if so, how? The structure of the chapter resembles a funnel: starting with international criminal law in the broadest sense, the focus is narrowed down to the core international crimes (i.e. crimes against humanity, war crimes and genocide) and then further specified to particular acts listed in the provisions of the core crimes. The first part of this chapter focuses on the doctrinal foundations of international criminalisation: what circumstances raise conduct to the level of an international crime in the first place? As a relatively new field of law, international criminal law does not have the same number of crystallised theories regarding the criminalisation process that domestic legal systems have and over the years, conduct was mostly criminalised on a spasmodic ad hoc basis. It has even been argued that there is – or at least was – no common doctrinal foundation that constitutes the legal basis for international criminalisation. Nonetheless, several authors have made an effort to formulate such a doctrinal basis and these theories will be studied and form the point of departure for the evaluative framework. Next, the taxonomy of international criminalisation and the structure of the core crimes will be highlighted in order to demonstrate the differences between the core crimes.

After the required knowledge about international criminalisation has been acquired, a road map pertaining to the question of how criminal conduct ought to be criminalised is constructed. This framework focuses on the possibilities of criminalising conduct as a crime against humanity, a war crime and an act of genocide. Because of the focus on three different core crimes, the framework presented in this chapter consists of three parts. Each crime has its own checklist of criteria that must be fulfilled in order for conduct to be criminalised as such a crime, yet some overlap between the criteria does exist.

INTRODUCTION

The practice of forced marriage is not something that is generally associated with Western Europe. Often, it is assumed that this only happens in ‘other’ countries. Yet research shows that forced marriages are a daily reality in Europe. In England, the majority of forced marriages take place in Indian, Pakistani and Bangladeshi communities; in the Netherlands, Moroccan, Turkish and Surinamese Hindustani communities are mostly associated with the practice. Granted, the bulk of forced marriages are contracted in migrant communities, but as was discussed in Chapter 1 and will be demonstrated below, forced marriages are not foreign to traditional Dutch and English communities either: they also take place in orthodox Protestant and strict Catholic circles.

In order to get a clear picture of the practice of forced marriage, this chapter describes forced marriages as they occur in the Netherlands and England, focusing on prevalence, victims, perpetrators, key motivations and consequences. As was stated in the previous chapter, this research defines ‘forced marriage’ as a marriage at least one of the partners entered into against their will as a result of some form of coercion exerted by another person.

FORCED MARRIAGE IN THE NETHERLANDS

PREVALENCE

Forced marriage is a hidden phenomenon that is difficult to quantify. Most known and alleged cases of forced marriage take place within the context of the families of the spouses. Often, they become visible only after the situation has escalated and has resulted in domestic or honour-related violence. Anthropologists, legal researchers and law enforcement professionals have noted that victims of forced marriage are reluctant to go to the police, as this could compromise their relationship with their family and community. As a result of these complicating factors, and because neither the police nor the Public Prosecution Service (PPS) specifically registers cases of forced marriage, there are no exact figures on the prevalence of this practice in the Netherlands.

INTRODUCTION

The first country study conducted in this research is on South Africa. It is classified as an upper middle income country with a GNI per capita of US$ 6.090 (2010); it has a poverty headcount ratio of 23% of the population, life expectancy of 52 years; and an under-five mortality rate of 56.6. South Africa is a WTO member since 1 January 1995. Although South Africa is one of the most developed and influential countries in sub-Saharan Africa, it is a country experiencing one of the worst HIV/AIDS epidemics world-wide. It is a young democracy with a progressive constitution protecting the right to health. This is also shown within case law of the South African Constitutional Court which has deemed the right to health to be justiciable and enforceable. Moreover, it has been involved in a conflict with the pharmaceutical industry over the issue of access to medicines, which was one of the first instances this issue received public attention. It is a good example of how an active civil society can reach tangible results in favour of access.

The previous chapters focused on the international framework with respect to a right of access to medicines and the patenting of pharmaceutical products. It was shown that there are a number of sources within international human rights law that protect a right of access to medicines, although in varying degrees. Furthermore, the TRIPS Agreement setting out minimum standards for patent protection for all WTO members attempts to strike a balance between IPRs and access. The flexibility of the TRIPS Agreement lies firstly in the fact that WTO members are free to determine the appropriate manner of interpretation and implementation of TRIPS’ obligations for themselves; and in that regard many of its provisions provide sufficient leeway to interpret these obligations in a flexible way, taking a right of access to medicines in account. Secondly, the TRIPS Agreement allows for concrete measures to curtail patent rights, such as compulsory licensing or parallel importation.