A/HRC/21/41
32.
On 22 February 2008, in Prosecutor v. Brima et al, the Special Court for Sierra
Leone recognized forced marriage as a crime against humanity under international criminal
law for the first time. The Court confirmed that forced marriage involved a perpetrator
compelling a person by force or threat of force, through words, or conduct of the
perpetrator, or anyone associated with him, into a forced conjugal association resulting in
great suffering or serious physical or mental injury on the part of the victim. It concluded
that forced marriage might also include one or more international crimes such as
enslavement, imprisonment, rape, sexual slavery and abduction.
33.
The Court noted that the crime of forced marriage was not exclusively, or
predominantly, sexual and as such was not fully encompassed by the crime of sexual
slavery. The women who testified in the case described the forced marriages as having
encompassed a series of violations, including abduction, forced labour, deprivations of
liberty, corporal punishment, assault and sexual violence.
34.
In 2005, the Parliamentary Assembly of the Council of Europe adopted resolution
1468 on forced marriages and child marriage. The Assembly defined forced marriage as
“the union of two persons at least one of whom has not given their full consent to the
marriage”. It defined child marriage as “the union of two persons at least one of whom is
under 18 years of age”. Among other things, it urged the national parliaments of the
Council of Europe member States to fix at or raise to 18 years the minimum statutory age of
marriage for women and men, to make it compulsory for every marriage to be declared and
entered by the competent authority in an official register, and to consider the possibility of
dealing with acts of forced marriage as an independent criminal offence.
C.
International human rights mechanisms
35.
In its general recommendation No. 24, the Committee on the Elimination of All
Forms of Discrimination against Women specifically recommends that States parties enact
and effectively enforce laws that prohibit the marriage of girls. In its general
recommendation No. 21, the Committee recognizes that forced marriage may exist as a
result of cultural or religious beliefs, but maintains that a woman’s right to choose a spouse
and enter freely into marriage is central to her life and to her dignity and equality as a
human being and that this must be protected and enforced by law.
36.
In its general comment No. 4, the Committee on the Rights of the Child strongly
urges States parties to develop and implement legislation aimed at changing prevailing
attitudes, and address gender roles and stereotypes that contribute to harmful traditional
practices. It also calls upon States parties to protect adolescents from all harmful traditional
practices, such as early marriage, and recommends that they review and, where necessary,
reform their legislation and practice to increase the minimum age for marriage with and
without parental consent to 18 years, for both girls and boys.
37.
In its general recommendation No. 21, the Committee on the Elimination of
Discrimination against Women considers that the minimum age for marriage should be 18
years for both men and women. This age limit, which is in line with the definition of the
child provided in the Convention on the Rights of the Child, is also reflected in article 21 of
the African Charter on the Rights and Welfare of the Child.
38.
The persistence of such harmful practices recently prompted the Committee on the
Elimination of All Forms of Discrimination against Women and the Committee on the
Rights of the Child to work on their first joint general comment on harmful traditional
practices, which is likely to be finalized in 2013.
39.
The special procedures mandate holders, in particular the Special Rapporteur on
violence against women, its causes and consequences, have focused on forced and early
marriages, in addition to other issues relating to servile marriage, including honour-related
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