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.

INTRODUCTION

In this chapter, the Dutch and English legal frameworks relevant to forced marriages are discussed, starting with the former. Forced marriages have been on the Dutch political agenda since 2005 and the wish to tackle this issue has resulted in several legal amendments. In 2009, the Dutch government drafted a broad set of measures for the purpose of combating the problems associated with protracted integration and emancipation of family migrants. These measures include changes in the civil and criminal law pertaining to polygamy, forced marriage, marriages between cousins and raising the minimum age for marriage in private international law. Forced marriage was also included in the Public Prosecution Service Instruction on domestic violence and honour related violence, in the sense that the Public Prosecution Service (PPS) will have to act pursuant to this instruction if forced marriage or abandonment are in any way connected with honour-related offences. In 2012, after looking into the possibilities of creating a separate offence of forced marriage, the Dutch government decided against separate criminalisation and instead presented a twoiyear action plan concerning the prevention of forced marriages, containing a set of preventative measures, mainly aiming at providing information, raising awareness and training professionals.

This chapter first describes the civil law remedies in detail. Next, other remedies that can be used to tackle forced marriages are briefly examined, including remedies that have their basis in administrative law. The focus is then directed towards criminal law: which crimes are relevant in cases of forced marriage and what amendments did the government propose in response to the call for the creation of a distinct offence of forced marriage?

The second part of this chapter describes the English legal framework in the context of the practice of forced marriage. English courts have quite a long history when it comes to dealing with cases of forced marriage, but the phenomenon entered the political limelight only relatively recently. In the late 1990s, several high profile cases attracted media attention and outraged the British public, causing two Members of Parliament to place the issue of forced marriage on the political agenda.

PATENTS – ACCESS: INTERFERENCE

Poor patients worldwide continue to face difficulties in obtaining or purchasing essential medicines because of scarce availability and high prices. The focus of this research is the interface between patent and human rights law with regard to access to essential medicines in the context of developing countries. The argument often made in that regard is that patents negatively impact patients’ access to medicines as patent protection for medicines results in higher prices. Therefore, before turning to the examination of the relationship of patent protection for medicines and access to such medicines, a preliminary question had to be asked:

Access in the context of this research entails that medicines are available, physically accessible and affordable on a non-discriminatory basis (in addition to being culturally acceptable and of good quality). The focus here is on the element of “affordability” of essential medicines within a developing country context. Namely, for (developing) countries operating in a resource constrained setting it is a continuous struggle to find and allocate the resources necessary to maintain and improve the public health care system and, as a result of inadequate public health systems, many patients in developing countries are forced to privately finance medicine use. Moreover, it is especially developing countries with poor public health systems which suffer disproportionately from widespread public health problems such as HIV/AIDS, tuberculosis and malaria and a systematic lack of access to affordable medicines. It is therefore crucial that developing countries ensure that medicine prices are as low as is realistically possible.

Both economic theory (the fact that patent protection in the majority of situations leads to a monopoly position) and a number of empirical studies find that in general patent protection for medicines go hand-in-hand with higher medicine prices. Consequently, patent protection for medicines may interfere with access to such medicines. These higher prices are then argued, particularly by the pharmaceutical industry, to be justified due to the fact that patents are essential in order to enable pharmaceutical corporations to recoup their substantial research and development costs; without patent protection companies would have no incentive to invest in innovation.

INTRODUCTION

None of the statutes of any of the international(ised) courts or tribunals specifically list the act of forced marriage as a crime against humanity, a war crime or an act of genocide. The offence was first explicated in the case law of the SCSL in 2004, when the Prosecutor of that court encountered the phenomenon of ‘bush wives’ during his investigations into the atrocities committed during the civil war in Sierra Leone. The Trial Chamber granted the Prosecutor leave to add a new count of ‘other inhumane acts’ (Article 2(i) SCSL Statute) pertaining to the offence of forced marriage to the indictments in two cases (against former AFRC and RUF leaders), but dismissed the Prosecutor's motion for leave to amend the indictment in the case against two former CDF leaders in a similar manner. As a result, the Trial Chamber could hear evidence supporting forced marriage as a (new) crime against humanity, which, for the first time in the history of international criminal law, opened the door for the prosecution of the crime of forced marriage as a crime against humanity. In subsequent SCSL judgements, the crime of forced marriage was defined, but this did not happen without problems or disagreements.

Paragraph 2 will discuss and evaluate in detail the proceedings before the SCSL Trial Chambers and Appeals Chamber in the AFRC, RUF and Taylor cases. The second part of this chapter focuses on the Extraordinary Chambers in the Courts of Cambodia (ECCC). Forced marriage is charged as an ‘other inhumane act’ in the case that is commonly referred to as Case 002. When the proceedings in this case commenced, in 2007, there was no indication that this case would take longer than the average international criminal case to complete. However, the proceedings continue to drag on and are marked by delay upon delay. At the time of writing (January 2014), there was not a single (trial) judgement in Case 002. As a result, there is no relevant case law to discuss and analyse. Only the pre-trial proceedings offer some insight into the offence of forced marriage within the legal framework of the ECCC. They are briefly addressed in paragraph 3.

INTRODUCTION

All is fair in love and war. This statement still seems to be true today. In conflict situations, the taking of brides by the victor is a common occurrence. Through the years, many conflicts around the world have been marked by the abduction of women and girls who were forced into what is generally referred to as ‘marriages’ with their captors. There are reports of forced marriages taking place during the conflicts in inter alia Afghanistan, Angola, Cambodia, the Democratic Republic of Congo, East Timor, Guatemala, Kashmir, Liberia, Mozambique, Myanmar, Peru, Rwanda, Sierra Leone, Somalia, Sudan (Darfur), and Uganda. This chapter focuses on the phenomenon of forced marriages in the situations that have been or are being tried before the ICTY, ICTR, ICC, SCSL and ECCC with an emphasis on the forced marriages that took place during the civil war in Sierra Leone and under the Khmer Rouge in Cambodia. As was stated in the General Introduction, this book focuses on these two situations because of the high prevalence of forced marriage during the two conflicts. In addition, the conflict of Sierra Leone was chosen because it resulted in the first case law concerning the act of forced marriage under international criminal law.

In this chapter, first, acts of forced marriage during the Rwandan genocide and the conflicts in the former Yugoslavia are discussed. The third paragraph focuses on situations currently before the ICC. The practice of forced marriage was (or is) prevalent to some extent in all situations, but in some more than in others. The conflict in Uganda is especially infamous for the high number of child abductions coupled with forced marriages and this particular topic has been well-documented. Therefore, paragraph 3 will mainly focus on Uganda. The situations in other countries under investigation by the ICC are briefly discussed, mainly for the practical reason that there is little information on (the prevalence of) forced marriages taking place in those situations.

INTRODUCTION

This chapter addresses the interface between international trade law and intellectual property law with international human rights law in the context of patent protection for pharmaceuticals and a right of access to medicines. The issue of access to medicines sits on the cross-point between the three systems and is one illustrative example of how these systems interact. The starting point for this discussion is that international trade law (which includes patents) can have significant benefits for the protection and promotion of human rights. This thesis adopts a legal approach to assess how international patent law and international human rights law interact in order to determine potential conflicts between both systems. It must be recognised however, that the debate takes place against the background of broader social, economic and political discussions.

International trade law and intellectual property law have historically been isolated from international human rights law. Human rights have not been very prominent in the World Trade Organisation. For a long time, international trade law was considered a very technical subject dealing with mainly economic analysis and beyond the scope of general international lawyers. Furthermore, some of the members within the WTO political bodies have shown concern in including human rights within WTO deliberations. In that sense the debate within the WTO on the possible impact of intellectual property rights on access to medicines, which resulted in the 2001 Doha Declaration on TRIPS and Public Health and a proposed amendment to the TRIPS Agreement, is remarkable in that it, although not explicitly, addresses human rights concerns within the WTO framework. See for example the debate preceding the adoption of the Doha Declaration in which a number of WTO members, mainly developing members, refer to the right of access to medicines, the right to health and the right to life as the context for the discussion of TRIPS and public health. Consequently it is only in the last decade and a half that the links between human rights and international trade are being fully recognised.

INTRODUCTION

Before going into the issue of forced marriages in times of peace and conflict, it is important to first understand what ‘marriage’ and ‘force’ exactly entail. Only after taking careful cognisance of these concepts is it possible to start dissecting the phenomenon of forced marriage. To this end, this chapter provides the book's conceptual framework. First, the concept of marriage is elucidated and with the help of sociological definitions, a universally applicable definition of marriage is formulated (paragraph 2). In paragraph 3, several universal and regional human rights instruments are analysed. As a direct consequence of the Nazi racial laws prohibiting mixed marriages between certain ethnic groups and the injustices committed under the veil of marriage during the Second World War – such as child marriages and marriage as a cover for slavery – the international community saw fit to formulate marriage as a human right. By including the right to marry in the 1948 Universal Declaration of Human Rights (UDHR), the international community gave expression to the importance of this institution and its central position in society. An entire gamut of international human rights treaties now contain provisions on the right to marry and on the equality between men and women during every stage of the marriage. After discussing these instruments, the concepts of coercion and consent are explored. Finally, in paragraph 4, a working definition of forced marriage is presented; if necessary, this working definition will be revised after the description and discussion of the practice of forced marriage as it takes place in times of peace and conflict (Chapters 2 and 3). A separate sub-paragraph is devoted to the practice of arranged marriages. Paragraph 5 contains some concluding remarks.

MARRIAGE

THE SOCIOLOGY OF MARRIAGE

Marriage as a way of organising life and formalising relationships has existed as a social institution in all societies throughout history. Throughout recorded history, marriage has been the main vehicle by which (private) property was exchanged and handed down to new generations, and by which sexual relationships and the position of children in society were regulated.

INTRODUCTION

The central question of this research revolves around criminalisation of forced marriage: should this practice be criminalised, and, if so, how? Should it be prohibited as a distinct, separate offence, or under the heading of (generic) existing crimes? Decisions regarding criminalisation are, for a large part, based on policy choices and political considerations, and are therefore dependent on the political hue of the incumbent government. For example, in the Netherlands, (criminal) law was traditionally used more or less exclusively as an instrument of ‘codification’, that is to say as a means to record existing moral views. However, as a result of the development of Dutch society from a welfare state into a security state, coupled with the growing influence of populism, (criminal) law is increasingly used as an instrument of ‘modification’, i.e. as a means to change views and behaviour in society. This has led to a trend of increased willingness to penalise and thus to a proliferation of criminal offences. The same can be said for England, indeed, it has been stated that Anglo-American jurisdictions in general create offences in a casual and routine manner.

Yet irrespective of the highly political nature of criminalisation, certain guidelines can be distilled from legal doctrine. The issue of criminalisation has exercised and still exercises many minds and the question of what justifies criminal prohibition has inspired lawyers and philosophers to fill reams upon reams of paper, exploring the conditions that must be satisfied before the state may proscribe certain behaviour, thereby subjecting the culpable offender to criminal liability and (subsequently) punishment. Throughout the years, different theories of criminalisation have been articulated. There are clear similarities between these theories, which, for a large part, build on each other. As De Hullu – one of the leading Dutch criminal law scholars – noted, what most theories have in common is that they require that the necessity and added value of criminalisation must be demonstrated, either from a practical or from an ideological or legal theoretical point of view.