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ADVANCE EDITED VERSION |
Distr. GENERAL A/HRC/4/23 24
January 2007 Original: ENGLISH |
HUMAN RIGHTS COUNCIL
Fourth session
Item 2 on the provisional agenda
Full
Report is attached.
This
report is submitted in accordance with Human Rights Council decision
1/102. It covers the period
January-December 2006.
Section
I of the report outlines the Special Rapporteur’s activities, including
participation at different conferences, the issuing of press releases and the
sending of individual complaints to Governments on cases of trafficking in
persons, especially women and children, during the reporting period.
Section
II is devoted to a thematic study on forced marriages in the context of
trafficking in persons. In this section,
the Special Rapporteur defines what amounts to a forced marriage and lists
different forms of existing forced marriages as reported to her in the
different replies to a questionnaire on forced marriages that the Special
Rapporteur sent to Governments, international organizations and
non-governmental organizations.
The
Special Rapporteur examines forced marriage as an act or an element of
trafficking in persons, in accordance with article 3 of the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational
Organized Crime and describes some of the consequences.
The
Special Rapporteur further addresses the element of demand as a means to
effectively combat trafficking in persons generally and, with reference to
certain situations concerning marriage-brokering agencies, in the context of
forced marriages specifically. Finally,
section III contains the Special Rapporteur’s conclusions and recommendations
to States and non-State actors on ways to prevent trafficking in persons
through or for the purpose of forced marriages, discourage the demand for such
marriages, protect and assist the victims concerned, and establish legal and
prosecutorial measures to combat forced marriages in the context of trafficking
in persons, especially women and children.
____________________________________________
FORCED
MARRIAGES - REPORT SECTION II
13. The
Special Rapporteur chose for her annual
thematic report to gather information on forced marriage in the context of
trafficking in persons. To this end she
sent a questionnaire to all
14. The
following Governments responded to the questionnaire:
15. The
following national and international NGOs also replied to the
questionnaire: Action for Children
Campaign/Institute for Modern Rights Studies (United Kingdom); Afghan
Independent Human Rights Commission (Afghanistan); Association
guinéenne de femmes enseignantes de l’élémentaire (AGFE)
(Guinea); Ashiana
Network (United Kingdom); ASTRA‑Anti-Trafficking Action
(Serbia); Bangladesh
National Women Lawyers Association (Bangladesh); Christian Children’s Fund
(Afghanistan); The CRADLE - Children’s Foundation (Kenya); Deutsche
Staatborgerinnen Verband (Germany); European Roma Rights Centre, Human Rights
Information and Documentation Centre (Georgia); Institute of the Indigenous Peoples of the
North (Russian Federation); Instituto Suore Buon Pastore (Italy);
Lilith Project, Eaves Housing for Women (United Kingdom); Maasai Aid
Association (Kenya); Minority and Indigenous Rights Advocacy of Nigeria (Nigeria); Mouvement
français pour le planning familial (France); Nomadic Integrated Development
Research Agency (NIDRA) (Kenya); SOITM
Foundation (Iraq); Solwodi
(Germany); Sisters of the Good Shepherd (Ethiopia); Suzanne Mubarak Women’s
International Peace Movement (Egypt); Women in Need Development Consortium (WINIDECO)
(Kenya); World Vision International; and Yayasam Mitra kesehatan dan
Kemanusiaan (The Health and Humanity Foundation)
(Indonesia). Finally, the
Special Rapporteur also conducted personal interviews with victims of forced
marriage from several countries including
16. Forced
marriages take place in many social, political, cultural, economic and legal
contexts around the world. In this
report, the Special Rapporteur aims to identify when such forced marriages
exist and when they have been carried out in the context of trafficking in
persons, especially women and children.
The Special Rapporteur also examines the possible causes and
consequences of forced marriage in the context of human trafficking and
addresses the demand for forced marriage.
Finally, she offers recommendations to States and non-State actors on
ways to prevent trafficking in persons through or for the purpose of forced
marriages, discourage the demand for such marriages, protect and assist the
victims, and establish legal and prosecutorial measures to combat forced
marriages in the context of trafficking in persons, especially women and children.
17. In
2000, the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime (the Palermo Protocol) set out minimum
international standards for the prevention and combat of trafficking in persons
for different forms of exploitation.
According to article 3:
“(a) ‘Trafficking in persons’ shall mean
the recruitment, transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of abduction,
of fraud, of deception, of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to achieve the consent of
a person having control over another person, for the purpose of
exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs;
“(b) The consent of a victim of trafficking
in persons to the intended exploitation … shall be irrelevant where any of the
means set forth in paragraph (a) have been used;
“(c) The recruitment, transportation,
transfer, harbouring or receipt of a child for the purpose of exploitation
shall be considered ‘trafficking in persons’ even if this does not involve any
of the means set forth in paragraph (a);
“(d) ‘Child’ shall mean any person under 18
years of age.”
18. UNODC
stated in its response to the questionnaire that a case of forced marriage is a
case of trafficking in persons when the elements of the crime of trafficking -
act, means, and purpose of exploitation - as described in article 3 of the
Palermo Protocol are present.
19. Before
considering these elements, it is necessary to define what amounts to a forced
marriage. The 1964 Convention on Consent
to Marriage, Minimum Age for Marriage and Registration of Marriages (Convention
on Consent to Marriage) provides that “[n]o marriage shall be legally entered
into without the full and free consent of both parties, such consent to be expressed
by them in person after due publicity and in the presence of the authority
competent to solemnize the marriage and of witnesses, as prescribed by law”
(art. 1 (1)). Moreover, the 1995 Beijing
Platform for Action urges Governments to “[e]nact and strictly enforce laws to
ensure that marriage is only entered into with the free and full consent of the
intending spouses” (para. 274 (e)).
Emphasis is on the full and free consent of the parties to the marriage,
as also reflected in, inter alia, article 23 of the International Covenant on
Civil and Political Rights and article 16 (2) of the Universal Declaration of
Human Rights.
20. Moreover,
national legislation on marriages also focuses on the equal rights of men and
women to marry and to do so legally and of their own free will. Absence of such full and free consent will,
in many jurisdictions, constitute a ground to have the marriage declared null
and void. In addition, in many
jurisdictions, including
21. Article
16 (2) of the Convention on the Elimination of All Forms of Discrimination
against Women sets out parameters for national prohibitions of child marriage
by recognizing that a marriage of a child should not be permitted nor have
legal effect. The Convention on the
Rights of the Child contains several articles that are pertinent to the
marriage of a child. According to
article 3, States parties have a positive obligation to ensure that the best
interests of a child are always a primary consideration - beyond the mere
protection against discrimination of the girl child. Since children are, by definition, incapable
of consent or of exercising the right of refusal, child marriage is forced marriage,
and as such violates fundamental human rights standards and must therefore be
strictly prohibited.
22. The
practice of child marriage of girls is, according to many observers, the
socially legitimized institutionalization of sexual abuse and marital rape,
sometimes of very young girls,[3][3] which has serious physical,
psychological and health consequences for the girls involved. These marriages result in a high incidence of
sexually transmitted diseases, including HIV/AIDS, disabilities such as fistulas,
and death as a result of premature childbirth.
23. The
1990 African Charter on the Rights and Welfare of the Child requires States
parties to prohibit child marriage and to adopt legislation “to specify the
minimum age of marriage to be 18 years” (art. 21 (2)).
24. In
his 2006 in-depth study on all forms of violence against women, the
Secretary-General stated that “[a] forced marriage is one that lacks the free
and valid consent of at least one of the parties. In its most extreme form, forced marriage can
involve threatening behaviour, abduction, imprisonment, physical violence,
rape, and, in some cases, murder” (A/61/122/Add.1, para. 122).
25. The
Governments of, for example, Austria, Canada, Germany, Norway and the
United Kingdom distinguish arranged marriages from forced marriages in
that in an arranged marriage the parents/families take a leading role in
arranging the marriage, but the decision whether to consent to the arrangement
remains with the individuals getting married.
The distinction is said to rest in the right to choose a partner, the
ability to say no, and the supposition that the marriage is not entered into
under duress. In addition, several
Governments, including the
26. The
Special Rapporteur is concerned that in some cases the difference between an
arranged and a forced marriage is tenuous.
Arranged marriages have been defined as “a form of social construction
that informs the girl from a young age of her expected familial duties and her
understanding of what constitutes bringing ‘shame’ upon the family. If a young woman is bodily kidnapped the
force is obvious but when a marriage is ‘arranged’ by her relatives’ trickery
and stealth, she does not realize, often until it is too late, that an arranged
and forced marriage amounts to much the same thing”.[5][5]
A marriage imposed on a woman not by explicit force, but by subjecting
her to relentless pressure and/or manipulation, often by telling her that her
refusal of a suitor will harm her family’s standing in the community, can also
be understood as forced.
27. The
responses to the questionnaire on forced marriage, informed the Special
Rapporteur that the main victims of forced marriages are women and girls. The French NGO, Mouvement français pour le planning familial stated in
its response that boys are also concerned by forced marriages, but that this is
rare. Other respondents, such as the
Serbian NGO, ASTRA‑Anti-Trafficking Action, mentioned that child
marriages in some rare cases also may involve male children. Also, the United Kingdom Forced Marriage Unit
stated in its 2005 report that “there is evidence to suggest that as many
as 15 per cent of victims are male”.[6][6]
UNICEF concluded in a recent report that while boys under 18 years of
age are affected by early marriage, this is an issue that impacts upon girls in
far larger numbers and with more intensity.[7][7]
28. The
different kinds of forced marriage listed include: to settle debt (Afghanistan); to receive
dowry payment (Tanzania); to further cultural/economic interests, e.g. forced
marriages initiated by landlords or local commanders who overrule girls/women
and parents (Afghanistan); to gain control over daughters’ lives by sending
daughters back to the home country to marry local men (United Kingdom, United
States of America, France, Austria and Switzerland); of girls to men from
overseas in order for them to obtain residence permits as husbands
(United Kingdom, Germany); to display status, e.g. bride wealth (Kenya);
as inheritance when a widow is forced to marry a dead husband’s brother, or a
widower marries a dead wife’s younger sister without her consent (Africa); in trokosi
or devadasi, when young girls are forcibly married to a local god,
represented by a priest (Ghana and India); after abduction or kidnapping
(Afghanistan, Ghana, Serbia among the Roma people); to any willing groom, often
men with disability or of lower class, to a girl who is impregnated while
living at home by a male relative (Kenya); to “protect” a girl’s virginity and
counteract promiscuity (Kenya); as compensation when men of one extended family
have killed a man of another extended family (Afghanistan); to relieve poverty
and for economic gain (Zambia); and to facilitate female genital mutilation
(Ethiopia). Moreover, polygamous
marriages were also described as constituting forced marriages. Furthermore, the Special Rapporteur was also
informed about cases of trafficking in girls to fill the gap caused by the
practice of female foeticide in certain parts of India, including Punjab,
Gujarat, Rajasthan and Hryana.7
29. The
often criminal and hidden nature of forced marriages, combined with the fact
that most forced marriages take place in closed families, groups, communities
or societies, makes it particularly difficult to compile reliable statistics on
how many women and girls are subjected to forced marriages of any kind every
year. The Government of The
30. Some
statistics do exist, however. The
Government of the United Kingdom reported that its Forced Marriage Unit handles
about 250-300 cases a year of British nationals, mostly involving girls and
women between 13 and 30 years of age, forced into marriage.[8][8]
Likewise, the Government of Austria noted that in 2005, a total of 46
persons were affected or threatened by forced marriage in
31. Forced
marriage has, in fact, been recognized as a form of human trafficking. Forced marriage can be used as a method of
recruitment for the purpose of trafficking in persons,[9][9] and may be a result of trafficking
in persons.
32. At
a regional level, for example, article 1 (5) of the 2002 SAARC Convention on
Preventing and Combating Trafficking in Women and Children for Prostitution
states that “‘[p]ersons subjected to trafficking’ means women and children
victimized or forced into prostitution by the traffickers by deception, threat,
coercion, kidnapping, sale, fraudulent marriage, child marriage, or any other
unlawful means”.
33. The
United Nations Working Group on Contemporary Forms of Slavery recognized forced
marriage as a form of contemporary slavery, trafficking and sexual exploitation
(see E/CN.4/Sub.2/2003/31). In addition,
article 1 of the Supplementary Convention on the Abolition of Slavery, the
Slave Trade, and Institutions and Practices Similar to Slavery of 1956 states
that States parties shall abolish or abandon:
“…
“(c) 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;
“(d) Any institution or practice whereby a
child or young person under the age of 18 years, is delivered by either or both
of his natural parents or by his guardian to another person, whether for reward
or not, with a view to the exploitation of the child or young person or of his
labour.”
34. Various
Governments and organizations provided the Special Rapporteur with examples of
different cases of forced marriage which have been recognized as taking place
in the context of trafficking in persons.
The Government of Israel, for example, described how the Ministry of the
Interior and the Police recently identified several isolated instances of
procurers who had filed requests for family reunification with women from the
former
35. In
addition, the Government of Mexico reported that cases of forced marriages that
led to trafficking in persons for the purpose of commercial sexual exploitation
had been detected in several states/municipalities of the country. Data indicate that some families traffic
their minor daughters to be married to older men with economic resources. The girls are too young to be able to make a
decision, and in some cases the consent is given by the family. The Iraqi NGO, SOITM Foundation reported that
owing to the current situation in Iraq, a large number of Iraqi women were
being recruited by sex traffickers and that some who had been taken to the Gulf
States as wives were later used in the local prostitution industry.
36. Moreover,
there is evidence that adolescent females have been trafficked over
international borders between polygamous communities in the
37. The
NGO La Strada in
38. There
is a clear recognition in United Nations and regional agreements, as well as in
national legislation, that many women and girls around the world live under
conditions where, owing to harmful patriarchal, traditional, customary and/or
religious practices, they cannot fully exercise their human rights to marry or
refuse marriage; to full sexual autonomy; to refuse childbearing; to leave
partners, including abusive partners, while retaining custody of their
children, and to do so safely and without legal, economic, social, political
and cultural repercussions.
39. The
Convention on the Rights of the Child recognizes the right of children to
health and to be protected from all forms of physical and mental violence,
including sexual abuse, sexual exploitation, harmful traditional practices,
abduction, sale and trafficking for all forms of exploitation. Moreover, child marriages of girls also have
a serious impact on their Convention right to education. Child marriage almost always brings an abrupt
halt to the girl’s education.
Researchers conclude that “girls who marry young are more likely to be
illiterate and to have no experience of formal education”.[13][13]
40. Many
countries, including
41. Another
consequence of forced marriage in the context of trafficking in persons is that
victims of forced marriages may also become victims of “honour crimes”. Although both women and men can be the
victims of forced marriage, the honour of a family is tied primarily to the
status of the woman, leaving her much more vulnerable to persuasion and
coercion into a union to which she objects.[14][14]
Many NGOs that work specifically to prevent and combat crimes of
“honour” against women and girls, such as the Lilith Project of Eaves Housing
for Women (United Kingdom), note that there are links between forced marriages
and violence committed against women in the name of “honour”. So-called “honour crimes”, an ancient
practice sanctioned by culture rather than religion, are rooted in a complex
code that allows a man to kill or abuse a female relative or partner for suspected
or actual “immoral behaviour”.[15][15]
According to the response of the Government of the
42. In
its general recommendation No. 21 CEDAW states that “polygamy is practised in a
number of countries. Polygamous marriage
contravenes a woman’s right to equality with men, and can have such serious
emotional and financial consequences for her and her dependents that such
marriages ought to be discouraged and prohibited. The Committee notes with concern that some
States parties, whose constitutions guarantee equal rights, permit polygamous
marriage in accordance with personal or customary law. This violates the constitutional rights of
women, and breaches the provisions of article 5 (a) of the Convention” (para.
14). Furthermore, paragraph 39 states
that States parties should require registration of all marriages, inter alia to
ensure the prohibition of polygamy.
43. Persons
trafficked to be forced into marriage also often become victims of physical,
sexual and psychological abuse not only by their husbands, but by relatives of
their spouses, especially members of his household, and sometimes, if victims
resist the marriage or attempt to flee once it has been formalized, they are
subject to abuse, ostracism, or even lethal violence, by members of their own
families.[16][16]
The power and control directed at victims of forced marriage by their
in-laws reinforces the spouse’s domination and traps victims in conditions of
domestic and sexual servitude, or even enslavement.
44. Trafficking
for the purpose of forced marriage may also take place in situations of armed
conflict where women are recruited, transported, and forced to act as “wives”
of soldiers. In these contexts, and
under conditions of extreme violence and deprivation, women and girls are
subjected to, inter alia, ongoing rape and domestic servitude. In May 2004, the
45. Forced
marriage, in itself a form of violence against women, further engenders gender‑based
violence, as described by CEDAW: forced
marriages and other violent and coercive practices may “justify gender-based
violence as a form of protection or control of
women”. This violence deprives women
(and girls) of their equal enjoyment, exercise and knowledge of their human
rights and fundamental freedoms, and keeps them in subordinate roles.[18][18]
46. Part
II of the Palermo Protocol provides States with an obligation to provide
assistance and protection to trafficked persons. Persons subject to forced marriage, when such
marriage has taken place in a trafficking context, are entitled to this
assistance in addition to any provided to them as victims of forced
marriage. They should not be treated as
criminals.
47. In
accordance with the Palermo Protocol, such assistance should include protection
of the privacy and identity of the victims, including, inter alia, by making
legal proceedings relating to such trafficking confidential (art. 6 (1)). Trafficked persons must moreover be provided
with information on relevant court and administrative proceedings (art. 6 (2)
(a)) and assistance to enable their views and concerns to be presented and
considered at appropriate stages of criminal proceedings against
offenders, in a manner not prejudicial to the rights of the defence (art. 6 (2)
(b)). States parties shall also consider
implementing measures to provide for the physical, psychological and social
recovery of victims, including in appropriate cases, in cooperation with
non-governmental organizations, other relevant organizations and other elements
of civil society, and, in particular, the provision of, inter alia, appropriate
housing, education and care (art. 6 (3)).
States parties shall ensure that their legislation provides victims the
possibility of obtaining compensation for damage suffered (art. 6 (6)). Any measures to prevent and combat
trafficking in persons, especially women and children, must safeguard
the rights of victims under international law, in particular under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, including their right to protection against
refoulement (art. 14 (1)).
48. The
Special Rapporteur was informed that protection and assistance provided to
women subjected to forced marriages was either provided to them directly as
victims of forced marriage (in Germany, Norway and the United Kingdom) or, for
example, also as victims of trafficking in persons when a forced marriage,
having been carried out in a trafficking context, was found to have taken place
(in Austria, Belarus, Bosnia and Herzegovina, Colombia, Germany, Indonesia, Italy
and Serbia).
49. In
order to eradicate forced marriages in the context of trafficking in persons,
especially women and girls, it is essential to target the demand for
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, and servitude of mainly women and girls. A complete legal prohibition on the demand for
forced marriages would function as a deterrent to those who acquire and use the
most vulnerable and powerless women and girls for forced marriage.
50. The
Palermo Protocol addresses demand in its article 9 (5), which provides that
States parties “shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures,
including through bilateral and multilateral cooperation, to discourage
the demand that fosters all forms of exploitation of persons, especially women
and children, that leads to trafficking”.
51. Moreover,
the 1995 Beijing Platform for Action encourages States to “[t]ake appropriate
measures to address the root factors, including external factors, that
encourage trafficking in women and girls for prostitution and other forms of
commercialized sex, forced marriages and forced labour in order to eliminate
trafficking in women, including by strengthening existing legislation with a
view to providing better protection of the rights of women and girls and to
punishing the perpetrators, through both criminal and civil measures” (para.
131 (b)). Also, in resolution 49/2 of 11
March 2005, entitled “Eliminating demand for trafficked women and girls for all
forms of exploitation”, the Commission on the Status of Women stated that it
was “[c]onvinced that eliminating the demand for trafficked women and girls for
all forms of exploitation, including for sexual exploitation, is a key element
to combating trafficking”.
52. Since
the entering into force of the Palermo Protocol, several newly negotiated
regional agreements and action plans have included articles focusing on
measures to discourage the demand for the exploitation that promotes human
trafficking, especially of women and children.
For example, under article 6 of the 2005 Council of Europe Convention on
Action against Trafficking in Human Beings, States parties are obliged to adopt
or strengthen legislative, administrative, educational, social, cultural or
other measures, including research on best practices, methods and strategies;
raising awareness of the responsibility and important role of media and civil
society in identifying the demand; information campaigns involving, as
appropriate, inter alia, public authorities and policymakers; and preventive
measures, including educational programmes for boys and girls that stress the
unacceptable nature of discrimination based on sex and its disastrous
consequences, the importance of gender equality and the dignity and integrity
of every human being.
53. In
addition, the European Union draft action plan to fight trafficking in human
beings states that all European Union institutions and member States “should
promote gender-specific prevention strategies as a key element to combat
trafficking in women and girls. This
includes implementing gender equality principles and eliminating the demand for
all forms of exploitation, including sexual exploitation and domestic labour
exploitation”.[19][19]
54. Some
countries have put in place awareness-raising or prosecution mechanisms that
address demand. For example, in
55. According
to the NGO Women in Need Development Consortium (WINIDECO), perpetrators of
forced marriage in
56. There
is a high risk of trafficking of women and girls in cases where
marriage-brokering agencies are involved.
In this context, the Special Rapporteur refers to her first report,
(E/CN.4/2005/71), in which she highlighted a concern about reports regarding
marketing of women and children via the Internet or in the guise of
marriage-brokering services and pen pal clubs as factors fostering the demand
for the sexual exploitation that promotes human trafficking.
57. The
marriage-marketing trade feeds on unrealistic and contradictory expectations
about marital relationships.[22][22]
Moreover, as stated in paragraph 14 of CEDAW general recommendation No.
21, poverty and unemployment increase opportunities for trafficking in
women. In addition to established forms
of trafficking there are new forms of sexual exploitation, such as organized
marriages between women from developing countries and foreign nationals. These practices are incompatible with the
equal enjoyment of rights by women and with respect for their rights and
dignity. There is an unequal balance of
power that puts women at special risk of violence and abuse, particularly when
it is the man who is paying money to marry the woman concerned.
58. Moreover,
marriages instigated by the Internet and mail-order bride agencies often become
forced marriages as women are not free to leave them because of their
dependence on their husbands for legal immigration status, their isolation from
their families and friends, their economic dependence on their husbands and
their fear of their husbands especially since many men who seek marriage to
women through these agencies have a history of violence against women. For example, the Indonesian NGO, the Health
and Humanity Foundation reported that the most common forms of forced marriages
in
59. In
her report, the Special Rapporteur also made reference to a case of a woman who
was awarded compensatory and punitive damages in a lawsuit against an
international marriage broker who had failed to inform her of a law that would
have enabled her to escape her abusive marriage without fear of automatic
deportation. The Special Rapporteur
referred to that case as a victory for those trying to combat trafficking in
persons. This case sheds light on the
dangers involved in the use of such marriage agencies.
60. Countries
such as the
61. The
phenomenon of forced marriages of women and girls in the context of trafficking
in persons is widespread, is devastating for its victims and has a serious
impact on women’s status in those societies where it occurs.
62. To
successfully combat forced marriages in the context of trafficking in persons,
States must, in accordance with existing international agreements, put into
place measures that prevent women and children from becoming victims of forced
marriages, including measures that discourage the demand. States are obliged to ensure the safety of
victims and their access to adequate and appropriate assistance. Finally, States are required to adopt legislation
to criminalize forced marriages in the context of trafficking in persons and
prosecute those responsible, while safeguarding the rights of the victims.
63. The
Special Rapporteur recommends that:
(a) Measures to prevent and combat
forced marriages be included in national action plans that focus on trafficking
in persons, especially women and children, and, similarly, in national action
plans on violence against women and girls;
(b) States establish special units and/or
working groups, such as the Forced Marriages Unit of the
(c) States adopt marriage legislation
that stipulates a minimum statutory age for marriage of 18 years of age, and
ensure that the legislation applies equally to women and men. Such legislation should be compatible with
international human rights standards and the best interests of children must be
a primary consideration;
(d) States amend their immigration
legislation so that victims of forced marriages are not dependent upon their
spouses for legal immigration status but can obtain residence permits
independently of their continued relation to their husbands. Governments should recognize forced marriage,
especially in the context of trafficking in persons, as a condition giving rise
to a claim of asylum based on gender-related violence and other forms of human
rights violations, and ensure that the women and girls concerned are not
deported;
(e) States ensure that key actors such
as law enforcement personnel, judges and prosecutors, diplomatic and consular
staff and immigration authorities are trained in the legal, economic, cultural,
social and other aspects of forced marriage in the context of trafficking in
persons, in how to identify, assist and protect victims, and in rigorous
prosecution of the perpetrators;
(f) States develop and conduct public
awareness campaigns relating to the nature and harm of forced marriages in the
context of trafficking in persons. Such
campaigns could target the public, community leaders, teachers, health-care
personnel and others, as well as women and girls vulnerable to forced marriages,
and those who demand women and girls for the purpose of forced marriages;
(g) States ensure that persons holding
dual nationality, who are more vulnerable to forced marriage in the name of
“protecting their individual ethnicity and tradition”, are made aware of the
laws on marriages of the countries in which they live and that forced marriage
is a form of violence and may also be a means or an end to human trafficking in
which the victim may be confined to a lifetime of exploitation;
(h) Traditional, religious or cultural
practices or domestic laws and policies should not be used to justify
violations of international human rights norms and standards. Thus, customs, whether religious, cultural or
traditional, should not be invoked to legitimize forced marriages of any
kind. Such marriages are inconsistent
with international legal principles;
(i) States ensure that gender-disaggregated data on
the incidence of forced marriages internationally, regionally and nationally
are collected, reported and compared as part of crime, gender equality and
migration statistics;
(j) In order to deter those who provide
the demand for women and girls under 18 years of age for forced marriages,
States put into place different preventive measures as well as legislation that
criminalizes the demand for forced marriages, especially in the context of
trafficking in persons, including the demand for so-called mail-order or
Internet brides;
(k) The marriage-marketing trade be
closely monitored and rigorous protection mechanisms established for the
persons concerned. The Special
Rapporteur also urges States to draft, adopt and implement legislation such as
the law in the Philippines that outlaws the activities of marriage brokers, and
investigate networks and individuals that organize trafficking in women and
girls for the purpose of forced marriages;
(l) States ensure that men who apply for visas for
a foreign spouse undergo background and criminal-record checks, and that the
issuing of such visas be monitored in order to identify men who have a history
of serial forced or broker-facilitated marriages. In some countries, non-governmental
organizations and immigration authorities have reported that a number of men
who apply for visas for a foreign spouse have a long and documented history of
violence against women. Also, they may
have applied for more than one such visa.
Women who entered the country as the spouses of these men have in many
cases ended up in shelters for battered women, and in some cases been deported.[23][23]
(m) States ensure that all girls are given
equal access to education and educational institutions, and enforce their right
to education through mandatory measures as well as through scholarships and
tuition programmes, trust funds and other measures that facilitate their
education. This move for literacy should
include legal and economic literacy, which should be regarded as an important
step in supporting not only the returning victims of forced marriage, but also
act as a catalyst for preventing the offence of forced marriage;
(n) States consider simplifying the
nullification process for a forced marriage, develop measures that enable
victims of forced marriage, including in the context of trafficking in persons,
to sue perpetrators under the civil law for damages and, where necessary,
extend limitation periods for civil litigation and criminal prosecution of
forced marriages;
(o) States support public authorities
and non-governmental and community‑based organizations that already
assist victims of domestic violence and sexual assault, including immigrant
women and children, and establish more facilities to protect and assist victims
of trafficking, including safe shelters that provide services such as security,
housing, legal advice, employment, education, health care, childcare and
relocation assistance for women and girls fleeing actual or threatened forced
marriages. These shelters should,
together with appropriate consular and other authorities, assist in the safe
repatriation of those who have undergone forced marriages abroad, if desired;
(p) States include in their criminal-law
provisions a specific offence of “forced marriage”, with penalties reflecting the
seriousness of the crime. Such legal
provisions should criminalize those who seek and procure women and girls for
forced marriage, those who aid and abet the contracting of such marriages, as
well as those who profit from the exploitation of the trafficked persons
subjected to such marriages;
(q) Criminal provisions, such as those
pertaining to rape, sexual abuse and battering, also be invoked when
prosecuting perpetrators of forced marriages because victims of forced
marriages often suffer regular sexual, physical and other bodily and
psychological violations committed by their spouses;
(r) States must ensure that children
under 18 years of age are not allowed to marry as this is inconsistent with
international human rights norms and standards, that harmful traditional
practices such as dowry and bride-price are made illegal, and that marriage by
proxy, including over the telephone, and polygamy are strictly prohibited in
law and policy.[24][24]
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[1][1]
Replies from
[2][2]
For example, during a visit on 9 September 2006 to Sanctuary for
Families, an NGO based in
[3][3]
Mariam Ouattara, Purna Sen and Marilyn Thomson, “Forced marriage, forced
sex: the perils of childhood for girls”,
Gender and Development, vol. 6, No. 3, 1 November 1998, pp.
27-33.
[4][4]
United Kingdom Foreign and Commonwealth Office and Home Office,
“Forced Marriage: A Wrong Not a
Right”, 2005, page numbers not specified.
Available at: http://www.fco.gov.uk/Files/KFile/forcedmarriageconsultation%20doc.pdf
accessed 20 November 2006.
[5][5]
Carole Olive Moschetti, Conjugal
Wrongs Don’t Make Rights: International
Feminist Activism, Child Marriage And Sexual Relativism, Ph.D. Thesis,
University of Melbourne, Political Science Dept., Faculty of Arts, 2006.
[6][6]
[7][7]
UNICEF, “Early Marriage: Child
Spouses”, Innocenti Digest, vol. 7 (March 2001), Innocenti Research Centre,
[8][8]
See note 6 above.
[9][9]
See the report of the Special Rapportuer on violence against women, its
causes and consequences, to the Commission on Human Rights at its fifty-third
session (E/CN.4/1997/47).
[10][10]
Angela Campbell, et al., Polygamy
in
[11][11]
Ibid.
[12][12]
Anette
Brunovskis and Guri Tyldum, Crossing
Borders, Oslo, Fafo-report
426, 2004.
[13][13]
See note 3 above, p. 31.
[14][14]
Abdullahi An-Na’im, “Forced Marriage”, 2000, available online at: http://www.soas.ac.uk/honourcrimes/FMpaperAnNa’im.pdf
[15][15]
Council of Europe Parliamentary Assembly Committee on Equal
Opportunities for Women and Men, “So-called ‘honour crimes’”, doc. 9720, 7
March 2003, available at: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc03/EDOC9720.htm.
[16][16]
Interviews with victims of forced marriages at Sanctuary for
Families. See note 2 above.
[17][17]
Karine Belair, “Unearthing the customary law foundations of ‘forced
marriages’ during Sierra Leone’s civil war: the possible impact of international criminal
law customary marriage and women’s rights in post-conflict Sierra Leone”, Columbia
Journal of Gender and Law, vol. 15, No. 3.
[18][18]
General recommendation No. 19, para. 11.
[19][19]
See e.g. Communication from the Commission to the European Parliament
and the Council, fighting trafficking in human beings - an integrated approach
and proposals for an action plan, 18 October 2005, document COM (2005) 514
final.
[20][20]
Gunilla Ekberg, “The Swedish Law That Prohibits the Purchase of Sexual
Services: Best Practices for Prevention
of Prostitution and Trafficking in Human Beings”, Violence against Women,
vol. 10, No. 10 (2004), pp. 1187-1218.
[21][21]
“
[22][22]
See e.g. Marie-Claire Belleau, “Mail-order brides in a global world”,
Albany Law
Review,
vol. 67, Issue 2 (Winter 2003), pp. 595-607.
[23][23]
Tove Smaadahl,
Helene Hernes and Liv Langberg Drømmen om
det gode liv: En rapport om utenlandske
kvinner gift med norske menn som måtte søke tilflukt på krisesentrerne i 2001
(Oslo: Krisesentersekretariatet, 2002).
[24][24]
Dowries are for example, already prohibited in