Law and Policy

                                                                                                                                                 Created June 2010

Forced/Child Marriage
Forced and child marriages violate the Universal Declaration of Human Rights, the United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. Despite being signatories to these documents, many countries have laws which fail to prevent forced and child marriages. Even in the United States, there are states that have no minimum age requirement to marry provided couples receive parental and court approval. From: Age Requirements, U.S. Legal, Inc.  India increased the minimum age for marriage from 12 to 18 in 1978, but enforcement of the law is uneven and early marriage rates remain high. From: High Prevalence of Child Marriage in India, Tan Ee Lyn, Reuters (10 March 2009).           
                                                                         
The Council of Europe Resolution 1468 of 2005 also aims to end the practice of forced and child marriages. The resolution defines forced marriage as the “union of two persons at least one of whom has not given their full and free consent to the marriage,” and a child marriage as one where “one of the [parties] is under 18 years of age.” Countries are encouraged to disallow marriage by those under 18 as well as criminalize forced marriage and ratify applicable treaties. For model legislation outlawing forced and child marriage, see Good Practices in Legislation on Violence Against Women, United Nations Division for the Advancement of Women (2008) (PDF, 76 pages).
 
Several former Soviet Union countries have passed laws prohibiting early marriage. In Kyrgystan, forced and early marriage are both outlawed and the minimum age for marriage is 16. In Tajikistan, there is no forced marriage legislation but the minimum age to marry is 17. However, this legislation is often not enforced. From: Forced and Early Marriage: A Focus on Central and Eastern Europe and Former Soviet Union Countries with Selected Laws from Other Countries, Cheryl Thomas, United Nations (19 June 2009).
 
Explicit criminalization of forced marriage is uncommon, but Norway recognizes anyone “who forces another person to conclude a marriage through recourse to violence, deprivation of liberty, undue pressure or other unlawful behaviour, or through the threat of such behavior” as guilty of forced marriage, an offense punishable by up to six years ‘ imprisonment. Norwegian Criminal Code, Article 222(2) (1994). Chapter 14 of the Croatia Criminal Code expressly penalizes forced marriages, which includes “criminal acts directed against sexual freedom and sexual morality.” From: Forced and Early Marriage: A Focus on Central and Eastern Europe and Former Soviet Union Countries with Selected Laws from Other Countries, Cheryl Thomas, United Nations Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices against Women (19 June 2009). In the United Kingdom, forced marriage is not criminalized, but those in fear of being forced into an unwanted marriage can arrange to receive a forced marriage Order of Protection (OFP). Police officers, relatives, and friends of the victim can apply for the OFP on the victim’s behalf, and penalties for breaching the order include up to two years’ imprisonment. From: New Laws against Forced Marriages, BBC News (25 November 2008). In countries without explicit legislation criminalizing forced marriage, the process of forcing the victim to get married and any violence committed within the marriage can be prosecuted for kidnapping or offenses against the person. From: Forced and Early Marriage: A Focus on Central and Eastern Europe and Former Soviet Union Countries with Selected Laws from Other Countries, Cheryl Thomas, United Nations Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices against Women (19 June 2009).
 
 
Female Genital Mutilation
International and regional human rights treaties, including the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, provide strong support for the protection of girls against FGM.
 
In 1997, the U.N. General Assembly passed Resolution 52/99 emphasizing the need for national legislation and measures to end harmful or customary practices, including female genital mutilation. The following year, the U.N. General Assembly issued a more strongly-worded recommendation: that Member States should “develop and implement national legislation and policies prohibiting traditional or customary practices affecting the health of women and girls, including female genital mutilation, inter alia, through appropriate measures against those responsible, and to establish, if they have not done so, a concrete national mechanism for the implementation and monitoring of legislation, law enforcement and national policies.” From: Traditional or customary practices affecting the health of women and girls, U.N. General Assembly, 3 (A/RES/53/117) (9 December 1998) (PDF, 5 pages). In 2001, the U.N. General Assembly further underscored its commitment to the issue through Resolution 56/128, reaffirming that female genital mutilation is a “serious threat to the health of women and girls.” Member States were called upon to collect and disseminate information about female genital mutilation; develop, adopt and implement national legislation, policies, plans and programs that prohibit female genital mutilation; prosecute those who engage in the practice; increase efforts to raise awareness of female genital mutilation; promote men’s understanding of their role in eliminating the practice; and continue assisting communities that practice female genital mutilation in preventing and eliminating the practice.
 
In June 2009, the U.N. Division for the Advancement of Women released a report from their expert group meeting on good practices in legislation to address harmful practices against women. See: Final Report of the Expert Group Meeting on Good Practices in Legislation to Address "Harmful Practices" Against Women, U.N. Division for the Advancement of Women (2009) (PDF, 45 pages). 
 
The African Union has addressed female genital mutilation for many years. The Organization for African Unity (predecessor of the African Union) adopted the Addis Ababa Declaration of Violence against Women in 1998, which called upon African governments to create national laws against female genital mutilation and ensure that the practice would be completely eradicated or the practice dramatically reduced by 2005. In 1999, the Ouagadougou Declaration was adopted by the Western African Economic and Monetary Union, which supported the Addis Ababa Declaration by calling for national legislation ending female genital mutilation. In 2003, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) was passed, containing a specific article requiring Member States to create legislation that would prohibit all forms of female genital mutilation. The Maputo Protocol needed fifteen countries for ratification. Twenty-seven of 53 African countries have ratified the Protocol. Five countries--Botswana, Egypt, Eritrea, São Tomé and Príncipe, and Tunisia--chose not to participate in the Maputo Protocol, neither signing nor ratifying it. From: List of Countries which have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, African Union (2 March 2010) (PDF, 2 pages). In 2009, the African Union Gender Policy called for an acceleration of the implementation of the Maputo Protocol.
 
The European Parliament adopted a resolution in 2001 that strongly recommended that Member States enact legislation against female genital mutilation. In the same year, the Council of Europe adopted Resolution 1247, calling upon Member States to introduce specific legislation forbidding genital mutilation and declaring genital mutilation to be a human rights violation. In 2009, the European Union passed a resolution, Combating Female Genital Mutilation in the EU, stating that all forms of female genital mutilation are illegal and that those who perform the practice must be prosecuted, and urged Member States to develop a plan of action to end female genital mutilation in the European Union through laws, prevention, education, and evaluation.
 
Asylum is intended to provide safe refuge for people who have been persecuted and/or fear persecution in their home country. Because female genital mutilation is a severe form of gender discrimination and violence it may provide a basis for refugees to seek asylum or related remedies to prevent women or girls from being returned to their home country. According to the U.N. High Commissioner for Refugees, female genital mutilation is a human rights violation and a woman can be considered a refugee if she or her daughters/dependents fear female genital mutilation against their will or fear persecution for refusing the practice. On a regional level, the European Parliament passed a resolution in 2001 that requested its Member States to grant asylum to women and girls who were at risk of being subjected to female genital mutilation. In the United States, persecution in the form of female genital mutilation can be the basis for asylum. See: Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Past infliction of female genital mutilation may, depending on the circumstances, be a basis for asylum, or withholding of removal from the country, in the US.
 
 
Sexual Exploitation, Prostitution, and Trafficking
Trafficking and sexual exploitation of girls is illegal in most, but not all, parts of the world. North Korea has “no known laws specifically addressing the problem of trafficking in persons, and trafficking of women and young girls into and within China continue to be widely reported.” From: 2008 Human Rights Report: Democratic People’s Republic of Korea, United States Department of State (25 February 2009).
 
As a prosecutorial matter, trafficking may be legislated under kidnapping, labor, or prostitution laws. The United States enacted the Victims of Trafficking and Violence Protection Act of 2000 to increase penalties for traffickers and encourage other countries to enact laws against traffickers by making financial assistance for other countries conditional upon enacting and enforcing laws against trafficking in persons.
 
The UN Convention Against Transnational Organized Crime entered into force in September 2003. The accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children received its 40th ratification in September 2003 and entered into force on December 25, 2003. The Trafficking Protocol contains the international consensus definition of trafficking and sets forth State obligations to prevent trafficking, to protect victims and to prosecute perpetrators of trafficking. For more information on the Trafficking Protocol, please see the section entitled The Trafficking Protocol and Recent Initiatives.
 
At its 60th session in April of 2004 the United Nations Commission on Human Rights appointed a Special Rapporteur on Trafficking in Persons, Especially Women and Children for the explicit purpose of focusing on the human rights of victims of trafficking. To do so, the rapporteur’s job is to gather and exchange information from governments, non-governmental organizations and victims of trafficking in order to propose appropriate measures to prevent and remedy trafficking violations. Working within the major international instruments and definitions of trafficking, the Special Rapporteur will conduct country visits, publish reports, and take up cases where individual or widespread rights abuses have occurred.
 
 
Sexual Harassment
The International Labour Organization has encouraged member countries to develop Time-Bound Programmes and National Plans of Action to address and eliminate the abuses of child workers. From: Helping Hands or Shackled Lives: Understanding Child Domestic Labor and Responses to It, International Labour Organization (2004) (PDF, 122 pages). The Minimum Age Convention and the Worst Forms of Child Labour Convention extend protection to girl domestic workers against situations of ill-treatment or abuse. Most countries have laws pertaining to child labor which set minimum age requirement, salaries, and working conditions. Many countries also have compulsory education laws for children. However, many of these laws are rarely enforced.
 
 
Crimes Committed in the Name of "Honor"
A 2008 report to the United Nations explains that the modern criminal laws of many Middle Eastern countries “construct gender and sexuality around notions of morality and honor, and regard women’s sexuality as a potential threat; thus requiring regulation by law.” From: Good Practices in Legislation on Violence against Women in Turkey and Problems of Implementation, Pinar Ilkkaracan and Liz Amado, United Nations Division for the Advancement of Women (28 May 2008) (PDF, 15 pages). Rather than protect the girl child against sexual violence and discrimination, laws addressing sexuality in these countries focus on acts “committed primarily against men, family, society or the state and leave room for the legitimization of violence and discrimination against women.”
 
Under some penal codes, a girl child’s conduct can mitigate the punishment for an "honor" killing. In Jordan, the penal code mitigates crimes committed “in a fit of fury caused by an unlawful or dangerous act on the part of the victim.” From: Lenient Sentences for Perpetrators of Honour Killings a Step Backwards for Protection of Women in Jordan, Amnesty International (24 April 2008) (PDF, 2 pages). In Egypt, a husband can avail himself of the defense of inflamed emotions even if he did not actually find his wife in the act of adultery. From: Honour Killing in Egypt, Fatma Khafagy, United Nations Division for the Advancement of Women (17 May 2005) (PDF, 9 pages). In addition, many legal systems characterize "honor" killings as a crime against the victim rather than against the state thus giving the victim’s family control over the prosecution. In Pakistan, the Supreme Court has declared that “neither the law of the land nor religion permits so-called ‘honour’ killings and it amounts to intentional murder…,” but the penal code allows the family of an "honor" killing victim to pardon the murderer or to accept compensation in lieu of punishment. From: Confronting Honor Killing, Asian Centre for Human Rights (29 October 2004) (PDF, 2 pages).
 
Turkey has made two significant amendments to its penal code in recent years. From: Good Practices in Legislation on Violence against Women in Turkey and Problems of Implementation, Pinar Ilkkaracan and Liz Amado, United Nations Division for the Advancement of Women (28 May 2008) (PDF, 15 pages). First, whereas perpetrators of "honor" killings previously could avail themselves of the mitigating circumstance of “unjust provocation,” the amended provision limits the scope of that provision to responses to “unlawful acts.” Second, the provision on aggravated homicide was broadened to include “homicides by motivation of custom,” thereby escalating the potential sentence for "honor" killings. Despite these amendments, "honor" killings continue to account for half of all murders in Turkey. From: Turkish Girl, 16, Buried Alive “for Talking to Boys,” The Guardian (4 February 2010).
 
 
Sexual Assault in Armed Conflict and Humanitarian Situations
The prohibition against grave sexual abuses and rape is a principle of customary international humanitarian law. It was included in the first codification of modern laws of armed conflict, the Lieber Code, compiled in 1863 during the American Civil War. Rape and other forms of sexual violence against women and children in times of armed conflict is specifically prohibited by Articles 8 and 27 of the Geneva Convention. The Rome Statute of the International Criminal Court states that rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or “other forms of sexual violence of comparable gravity” may constitute war crimes and crimes against humanity. From: The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (October 2009).
 
In 1924, the League of Nations adopted the Geneva Declaration of the Rights of the Child, setting the international standard on the child’s rights. The Convention on the Rights of the Child (the “Convention”) was adopted by the UN General Assembly on November 29, 1989. UNICEF describes this as the most comprehensive human rights treaty and legal instrument for the promotion and protection of children’s rights, and states the Convention was the first document to articulate the entire complement of rights relevant to children. Under the Convention, “children are rights holders rather than objects of charity” and fulfilling these rights is no longer an option for state parties. Instead, it is an obligation that governments have pledged to meet. From: The State of the World’s Children – Special Edition Celebrating 20 Years of the Convention on the Rights of the Child, UNICEF (November 2009).
 
The Convention on the Rights of the Child provides a strong legislative framework for protecting the girl child’s rights in humanitarian crises, particularly Articles 38 and 39, and the Optional Protocol on the Involvement of Children in Armed Conflict. A number of UN Security Council resolutions have been aimed at ending the abuse of children and civilians in the context of war. See, e.g., United Nations Security Council Resolution 1612 (2005).
 
Other international norms for protecting children in emergencies have also been strengthened considerably, with a number of UN Security Counsel Resolutions, notably resolutions 1612 and 1830, aimed at ending the abuse of children and civilians in the context of war. The International Criminal Court has launched proceedings to investigate and try those alleged to have committed genocide, crimes against humanity, and war crimes. From: The State of the World’s Children – Special Edition Celebrating 20 Years of the Convention on the Rights of the Child, UNICEF (November 2009).
 
In August 2009, the UN Security Council unanimously adopted resolution 1882 on children and armed conflict. For the first time, the Council called upon the Secretary-General to expand his “list of shame” beyond recruitment and use of children, and empowered UN Peacekeepers to enter into dialogue with warring forces to discuss action plans to halt these violations and bring perpetrators to account. From: Press Release on Adoption of Resolution 1882, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (04 August 2009).
 
According to UNICEF, however, the values of the Convention are not always upheld, and can be undermined by longstanding cultural traditions or assumptions. Social and cultural practices such as child marriage, female genital mutilation or cutting, and discrimination all undermine girl child rights. Children around the world continue to endure conditions tantamount to slavery. They are trafficked across international borders and exploited as forced laborers or prostitutes. In short, they are “brutalized and victimized as participants in wars to an extent that allows today’s world no self-satisfied sense of moral superiority over yesterday’s.” From: The State of the World’s Children – Special Edition Celebrating 20 Years of the Convention on the Rights of the Child, UNICEF (November 2009).
 
According to the 2009 Report of the Special Representative of the Secretary-General for Children and Armed Conflict, sexual assaults in conflict areas are often perpetrated in a “rule of law vacuum” as a result of the armed conflict, and there often exists a prevailing culture of impunity for such crimes. Data on sexual violence in war zones is in many cases unreliable or non-existent due to deep cultural taboos surrounding the sexual nature of the crime, the fear of reprisals on victims and their families, and numerous other factors. Precise information, critical to combating the culture of impunity and to bring justice, is difficult to obtain or verify. From: Report, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (6 August 2009).
 
There have recently been a few high-level prosecutions in International Criminal Courts in the DRC, Burundi, Sudan, Cote d’Ivoire, Uganda, Sri Lanka, and the former Yugoslavia. In fact, according to the Human Rights Watch, in 2001 several cases broke new ground in jurisprudence on sexual violence under international law when the International Criminal Tribunal in Yugoslavia (ICTY) convicted and sentenced three men for rape, torture, and imprisonment. These cases marked the first time in history that an international tribunal had indicted individuals solely for crimes of sexual violence against women. The ICTY ruled that rape and enslavement were crimes against humanity, marking another new legal precedent. From: In War as in Peace: Sexual Violence and Women’s Status, Human Rights Watch (2004). A 1998 case in the International Criminal Tribunal in Rwanda held that “Acts of sexual violence can be prosecuted as constituent elements of a genocidal campaign.” From: The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (October 2009).
 
Prosecution of sexual crimes against the girl child is a step forward. However, typically only a few leaders are being tried while tens of thousands of women and children have suffered at the hands of thousands of lower-level actors. 
 
 
 
Compiled from: Universal Declaration of Human Rights, United Nations (1948); United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, United Nations (1962); Convention on the Elimination of All Forms of Discrimination against Women, United Nations (1979); Convention on the Rights of the Child, United Nations (1989); Age Requirements, U.S. Legal, Inc.; High Prevalence of Child Marriage in India, Reuters (10 March 2009); Resolution 1468, Council of Europe (2005); Good Practices in Legislation on Violence Against Women, United Nations Division for the Advancement of Women (2008); New Laws against Forced Marriages, BBC News (25 November 2008); Forced and Early Marriage: A Focus on Central and Eastern Europe and Former Soviet Union Countries with Selected Laws from Other Countries, Cheryl Thomas, United Nations Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices against Women (19 June 2009); Resolution 52/99, U.N. General Assembly (1997); Traditional or customary practices affecting the health of women and girls, U.N. General Assembly (9 December 1998); Resolution 56/128, U.N. General Assembly (2001); Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices Against Women Convenes in Ethiopia, www.stopvaw.org (16 June 2009); Final Report of the Expert Group Meeting on Good Practices in Legislation to Address "Harmful Practices" Against Women, U.N. Division for the Advancement of Women (2009); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, African Union (2003); List of Countries which have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, African Union (2 March 2010) Resolution 1247, Council of Europe (2001); European Parliament Passes Resolution Combating Female Genital Mutilation in the European Union, www.stopvaw.org, (27 May 2009); 2008 Human Rights Report: Democratic People’s Republic of Korea, United States Department of State (25 February 2009); Victims of Trafficking and Violence Protection Act of 2000; Helping Hands or Shackled Lives: Understanding Child Domestic Labor and Responses to It, International Labour Organization (2004) (PDF, 122 pages); Minimum Age Convention, U.N. General Assembly (1999); Worst Forms of Child Labour Convention, U.N. General Assembly (1999); Good Practices in Legislation on Violence against Women in Turkey and Problems of Implementation, Pinar Ilkkaracan and Liz Amado, United Nations Division for the Advancement of Women (28 May 2008) (PDF, 15 pages); Lenient Sentences for Perpetrators of Honour Killings a Step Backwards for Protection of Women in Jordan, Amnesty International (24 April 2008) (PDF, 2 pages);Honour Killing in Egypt, Fatma Khafagy, United Nations Division for the Advancement of Women (17 May 2005) (PDF, 9 pages); Confronting Honor Killing, Asian Centre for Human Rights (29 October 2004) (PDF, 2 pages); Good Practices in Legislation on Violence against Women in Turkey and Problems of Implementation, Pinar Ilkkaracan and Liz Amado, United Nations Division for the Advancement of Women (28 May 2008) (PDF, 15 pages); Turkish Girl, 16, Buried Alive “for Talking to Boys,” The Guardian (4 February 2010); The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (October 2009); The State of the World’s Children – Special Edition Celebrating 20 Years of the Convention on the Rights of the Child, UNICEF (November 2009); Press Release on Adoption of Resolution 1882, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (04 August 2009); Report, Office of the Special Representative of the Secretary-General for Children and Armed Conflict (6 August 2009); In War as in Peace: Sexual Violence and Women’s Status, Human Rights Watch (2004).