Child Slavery and Child Brides

Child Slaves and Child Brides
Ce¤cile Aptel*
Downloaded from http://jicj.oxfordjournals.org/ at Orta Dogu Teknik University Library (ODTU) on March 15, 2016
Abstract
Child slavery exists in diverse modern forms, including child trafficking, children re-
cruited or used in hostilities (child soldiers), sexual slavery, children in bonded
labour, and also child victims of early and forced marriages. The common thread run-
ning through these different forms of slavery affecting children is that they leave
the victims without protection, exposed and subjected to violence, abuse, and threats,
on a repeated and continuing basis. This article argues that the use of specific labels
for each form of abuse rather than their systematic qualification as child slavery
has diluted the understanding of the multifaceted impact of slavery on children and
has resulted in a fragmentation of efforts towards fighting this scourge in all its vari-
ous manifestations. It proposes measures to foster the fight against child slavery,
including increased coordination among various actors, prosecution of crimes of en-
slavement, notably of child forced marriage, as crimes against humanity at the
International Criminal Court, and the use of cumulative charging to address all
facets of child slavery.
1. Introduction
In May 2014, three weeks after the abduction of more than 200 Nigerian girls
from their school by Boko Haram, Abubakar Shekau, Boko Haram’s leader,
declared on a video: ‘I abducted your girls. I will sell them in the market.’ More
than a year later, most of these girls remain in captivity. Many are believed to
have been forcefully ‘married’ to their captors and their exact fate remains un-
known. While this tragic event managed to capture the attention of the media
and brought to the fore the plight of girls abducted and often forcefully mar-
ried, it represents only one instance of a much larger phenomenon ç namely,
child slavery.
* Associate Professor, Fletcher School of Law and Diplomacy, Tufts University, Boston and Senior
Legal Policy Adviser, Office of the UN High Commissioner for Human Rights; member,
Editorial Committee of the Journal. The views expressed in this article are those of the author
and do not necessarily represent the views of, and should not be attributed to, the United
Nations. The author would like to thank Anna Benedetti for her significant contribution in pre-
paring the first sections of this article, and Meg Kumar, Ameya Naik and Vaishali Sharma for
their research and editorial assistance. [captel@ohchr.org]
............................................................................
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2 of 21 JICJ (2016)
Several international legal instruments prohibit child slavery. These instru-

ments define slavery generally as well as specifically in context of children.
The 1926 Slavery Convention defines slavery as ‘the status or condition of a
person over whom any or all of the powers attaching to the right of ownership
are exercised’.1 The 1956 Supplementary Convention to the Slavery Convention
adds to this definition a number of institutions and practices analogous to slav-
ery, such as debt bondage, serfdom, forced marriage, and the sale of women
and children.2 The special plight and vulnerability of children is explicitly
recognized by the inclusion, within the definition of child slavery, of practices
that would not necessarily amount to slavery in the case of adults, namely,
‘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’.3
Slavery is not explicitly referred to within the Convention on the Rights of
the Child (CRC).4 However, several of its provisions prohibit exploitation and
abuse of children and cover other violations that could lead to slavery or slav-
ery like practices.5 This prohibition is enhanced by the Optional Protocols to
the CRC on Sale of Children, Child Prostitution and Child Pornography,6 and
on the Involvement of Children in Armed Conflict.7
International Labour Organization (ILO) Conventions Number 138 and
Number 182 complement the CRC and its Optional Protocols, by establishing
the minimum age for employment and regulating the worst forms of child
labour, respectively.8 Additionally, the 2000 Protocol on Trafficking in Persons
provides for a lower threshold regarding child trafficking. Unlike in the case
1 Art. 1(1) Convention to Suppress the Slave Trade and Slavery (hereinafter ‘Slavery Convention’).
2 Art. 1(a)^(d) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (hereinafter ‘Supplementary Convention’).
3 Art. 1(d) Supplementary Convention.
4 See, in general, Convention on the Rights of the Child (hereinafter ‘CRC’).
5 The provisions of the CRC include: Art. 9 on the separation of children from parents against
their will; Art. 19 on the protection of children from physical or mental violence, including
sexual abuse; Art. 11 on the illicit transfer of children abroad; Art. 32 on the protection of chil-
dren from economic exploitation; Art. 33 on the illicit production and trafficking of drugs;
Art. 34 on sexual exploitation; Art. 35 on trafficking; Art. 36 on other forms of exploitation;
Art. 37 on torture, cruel and unusual punishment, and deprivation of liberty; and Art. 38 on
the use of children in armed conflict.
6 See, in general, Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography.
7 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children
in Armed Conflict.
8 See ILO Minimum Age Convention. Art. 3 ILO Worst Forms of Child Labour Convention sets out
the practices included under worst forms of child labour. This Convention calls for immediate
action for the elimination of the worst forms of child exploitation, clarifies which situations
should be classified as such, and specifies measures for governments to prohibit and eliminate
them.
Child Slaves and Child Brides 3 of 21
of adults, there is no need for evidence of threat or use of force, coercion,

abduction or fraud when trafficking concerns children.9
In light of the different standards applying to adults and children, the ques-
tion of who is defined as a ‘child’ is crucial. According to the CRC, a child
means every human being below the age of 18 years, unless majority is at-
tained earlier under the law applicable to the child.10 This threshold of 18
years is a common one and is found in many other international instruments,
including in the 1956 Supplementary Convention.11
Child slavery is a pervasive practice. It is difficult to evaluate the exact
number of child victims of slavery owing to the hidden nature of this crime.12
However, it is estimated that out of 19.5 to 22.3 million persons in slavery, ap-
proximately one quarter are children.13 This staggering number encompasses
victims of many different forms of enslavement including child trafficking,14
children recruited or used in hostilities,15 forced marriage,16 sexual slavery,
and some of the worst forms of forced child labour.17 The common thread run-
ning through these different forms of slavery affecting children is that they
leave the victims without protection, exposed and subjected to violence,
abuse, and threats, on a repeated and continuing basis.
This article argues that the use of specific labels for each form of abuse
rather than their systematic qualification as child slavery has diluted the
understanding of the multifaceted impact of slavery on children and resulted
in a fragmentation of efforts to fight this scourge in all its various
manifestations.
9 Art. 3(a),(c) Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women
and Children.
10 Art. 1 CRC.
11 Art. 1(d) Supplementary Convention. Also see Art. 2 ILO Worst Forms of Child Labour
Convention.
12 Although international organizations, such as the United Nations Children’s Fund (UNICEF)
and the ILO, have registered a decrease in child slavery over the past decade, in many countries
the current figures have swollen as a result of demographic growth. See the data contained in
ILO International Programme on the Elimination of Child Labour, available online at http://
www.ilo.org/ipec/lang^en/index.htm (visited 6 December 2015); UNICEF, Ending Child
Marriage: Progress and Prospects (2014), available online at http://www.unicef.org/media/files/
Child_Marriage_Report_7_17_LR..pdf (visited 6 December 2015).
13 ILO, Global Estimate of Forced Labour (2012); ILO, Hard to See, Harder to Count (Survey Guidelines)
(2012).
14 First, trafficked children can be enslaved when they are at the mercy of traffickers who control
them and their movements, out of fear for their lives or simply because they have no other
means of survival, thereby meeting the above criteria of ownership over a person. Second, the
trafficking of children can also be a gateway to slavery as it commonly occurs with the inten-
tion of employing children for purposes such as sexual exploitation, prostitution or forced
labour, which, in turn, may constitute slavery.
15 Children recruited in armed conflict or used in hostilities may be victims of slavery, for in-
stance, when they are forced to participate in combat or to otherwise work ç as porters,
cooks, etc. ç or when sexually exploited.
16 See the third section of this article for detailed discussion.
17 Art. 3(a) ILO Worst Forms of Child Labour Convention recognizes slavery and practices similar
to slavery among the worst forms of child labour.
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The next section evaluates the treatment of child slavery as an independent

and specific crime in international criminal law. In particular, it analyses
recent prosecutions by international criminal tribunals to examine whether
the issue of child slavery has been adequately addressed. It discusses the likeli-
hood of this issue being sufficiently dealt with by the permanent
International Criminal Court (ICC). The section concludes that, despite the par-
tial headway that has been made as regards prosecuting this heinous crime,
certain key flaws remain. First, while certain forms of child slavery have been
recognized and prosecuted, for instance, the recruitment of children and their
use in hostilities, many others, like forced labour, have been ignored. Second,
adequate attention has not been given to recognizing the child specific dimen-
sion of crimes. Third, prosecutions have not adequately highlighted instances
when child slavery ensues from circumstances related to other crimes. Fourth,
international criminal jurisprudence has led to conflation of various crimes
committed against children. Both the Special Court for Sierra Leone (SCSL)
and the ICC have failed on various occasions to pursue separate and cumula-
tive charges or convictions, which would have reflected the full scope of
crimes committed against children, including slavery. Fifth, while certain
forms of child slavery have now been recognized as criminal under other
legal qualifications, the fact that they may amount to slavery has not been
acknowledged, nor have they been prosecuted as slavery per se.
The following section discusses the specific case of child forced marriage as
child slavery. In particular, it discusses the jurisprudence of SCSL on this
matter and makes suggestions regarding the possible role of the ICC in prose-
cuting this crime. This section proposes that international jurisdictions
should pay specific attention to the intrinsically abusive nature of forced mar-
riage for the children involved and charge and try forced early marriage
under the crime of slavery, independent of, and cumulatively with, charges of
sexual violence against the child committed in the course of such a marriage.
In light of issues raised in the first two sections, most notably fragmentation,
the last section proposes a move towards an integrated approach. It advocates
for establishing definitional clarity by introducing a new instrument, whether
as hard law or soft law, which would cover the variety of practices that may
amount to child slavery. It also proposes increased coordination among the
multiple actors involved, notably within the United Nations (UN) system, in
order to achieve targeted reforms. In this regard, it discusses the mechanisms
developed by UN Security Council and the Secretary-General to fight the six
grave violations of children’s rights in armed conflict, and proposes listing
child slavery as a seventh grave violation.
2. International Criminal Jurisdictions and Child

Slavery
Several forms of child slavery qualify as international crimes and fall within
the mandate of international criminal tribunals, notably as war crimes and
crimes against humanity.18 Enslavement constitutive of a crime against hu-

manity was explicitly included in the statutes of the Nuremberg and Tokyo tri-
bunals.19 Similar provisions have been listed among the material jurisdiction
of the International Criminal Tribunal for the former Yugoslavia (ICTY), the
International Criminal Tribunal for Rwanda (ICTR) and the SCSL.20 The ICC,
too, has an explicit mandate to try individuals responsible for enslavement as
a crime against humanity.21 Sexual slavery may qualify as a war crime under
the ICC Statute. It is also listed as underlying act of crimes against humanity
of sexual violence.22 However, sexual slavery is not specifically mentioned in
the statutes of the ICTY and ICTR.
Several contemporary international criminal jurisdictions have devoted at-
tention to child slavery, focusing mostly on two of its forms ç the enslavement
of children recruited and used in hostilities and sexual slavery, as shown
below.
A. The ICTY
At the ICTY, a particularly significant case is Foc› a, where the accused were
found guilty of, inter alia, enslavement under Article 5(c) of the ICTY Statute
for having detained women and girls in slavery conditions.23 The girls, some
aged 15 years and one girl as young as 12 years, were detained for months,
raped, beaten, threatened, psychologically oppressed, and kept in constant
fear.24 Significantly, in the absence of specific provisions on sexual slavery in
the ICTY Statute, the Trial Chamber relied on an inclusive interpretation of
the 1926 Slavery Convention and customary international law,25 and found
that Article 5(c) of the Statute covered both sexual and non-sexual acts perpe-
trated in the exercise of ‘any or all of the powers attaching to the right of
18 It is important to note that child slavery, when committed with the required intent, could also
in certain circumstances constitute genocide, in particular, in the context of the ‘forcible trans-
fer of children from a protected group to another group’ as one of the five underlying acts of
genocide encompassed in the statutes of the contemporary international criminal jurisdictions,
including the ICC.
19 Art. 6(c) Charter of the Nuremberg International Military Tribunal. The crime against human-
ity of enslavement was also listed in Art. II(1) Control Council Law No. 10 as well as Art. 5(c)
Charter of the International Military Tribunal for the Far East.
20 Art. 5(c) ICTY St., Art. 3(c) ICTR St., Art. 2(c) SCSL St.
21 Art.7(1)(c) ICC St., adopts the definition of slavery contained in the Slavery Convention, and ex-
plicitly recognizes the specific vulnerability of women and children by including within that
definition ‘the exercise of such power in the course of trafficking in persons, in particular
women and children’. Art. 7(1)(c), 7(2)(c) ICC St.
22 See Art. 2(g) SCSL St., Art. 7(1)(g) ICC St.
23 Judgment, Kunarac, Kovac and Vukovic (IT-96-23-T), Trial Chamber, 22 February 2001.
24 Ibid., xx 746^765. The women and girls were treated as personal property, had to do household
chores and obey all orders, including humiliating ones such as dancing naked for their captor.
They were denied any control over their lives and ‘had no realistic option whatsoever to flee
the house . . . [where they were detained] or to escape their assailants’. Furthermore, with re-
spect to Radomir Kovac, some girls were sold to other men and soldiers. See ibid., xx 540^742.
25 Ibid., xx 518^543.
6 of 21 JICJ (2016)
ownership over a person’.26 Furthermore, the Trial Chamber considered the

young age of the victims as an aggravating factor in sentencing.27
Charges of slavery and/or enslavement involving children were also brought
against Krnojelac, who was accused of both enslavement as a crime against hu-
manity and slavery as a violation of the laws and customs of war pursuant to
Article 3 of the Statute, the 1926 Slavery Convention and customary interna-
tional law.28 The charges included forced labour in mines, construction, farm-
ing, mine detection, and trench-digging on the frontline,29 with some of the
alleged victims imprisoned in the labour camps being children as young as 15
years of age.30 However, the prosecutor failed to prove these charges and the
accused was acquitted. Therefore, in this case, it is difficult to assess whether
the young age of some of the victims would have been taken into consideration
at the sentencing stage.
The ICTY made a progressive contribution by acknowledging sexual slavery
and considering young age of the victims. However, in light of only one suc-
cessful prosecution, its jurisprudence is limited in this regard and restricts a
detailed analysis. Additionally, bearing in mind the existence of large-scale
rape in Bosnia and Herzegovina in the 1990s, including against many young
girls,31 it remains unclear whether the ICTY sufficiently highlighted the
actual extent of child slavery through its prosecutions and trials.
B. The SCSL
The SCSL has paid considerable attention to child slavery as a crime against
humanity and as a war crime. Notable cases include AFRC,32 RUF33 and
Taylor.34 The SCSL was the first international criminal jurisdiction to prosecute
individuals for recruiting and using children in hostilities, which is listed as a
war crime in its Statute.35 It contributed significantly in highlighting and clar-
ifying this abominable crime. In its landmark decision in the 2004
26 Ibid., xx 539^540.
27 Ibid., xx 874, 879.
28 Judgment, Krnojelac (IT-97-25-T), Trial Chamber, 15 March 2002.
29 Ibid., xx 357, 361^424.
30 Ibid., x 118.
31 Conservative estimates of the number of women raped during the Bosnian war run between
20,000 and 50,000. See L.E. Boose, ‘Crossing the River Drina: Bosnian Rape Camps, Turkish
Impalement, and Serb Cultural Memory’, 28 Gender and Cultural (2002) 71, at 71. Also see
M.L. Hirsh, Women Under Siege, Conflict Profiles: Bosnia, 8 February 2012, available online at
http://www.womenundersiegeproject.org/conflicts/profile/bosnia (visited 6 December 2015).
32 Judgment, Brima, Kamara and Kanu (AFRC) (SCSL-04-17-T), Trial Chamber, 20 June 2007 (here-
inafter ‘AFRC Trial Judgment’).
33 Judgment, Sesay, Kallon and Gbao (RUF) (SCSL-04-15-T), Trial Chamber, 2 March 2009 (herein-
after ‘RUF Trial Judgment’).
34 Judgment, Taylor (SCSL-03-01-T), Trial Chamber, 18 May 2012 (hereinafter ‘Taylor Trial
Judgment’).
35 Art. 8(2)(b), 8(2)(e) ICC St., Art. 4(c) SCSL St. The statutes of earlier jurisdictions, such as the
ICTY and ICTR, only provided for the prohibition of recruitment and use of children in armed
Interlocutory Appeal in Norman, the SCSL rejected the accused’s contention

that the prohibition of recruitment and use of children under 15 years did not
constitute a crime under customary international law at the time under con-
sideration, and therefore, violated the principle of legality.36 Since then, the
crime of recruitment and use of children under the age of 15 years gained fur-
ther recognition and a number of individuals were successfully prosecuted on
such counts.37
In the AFRC case, the accused were found guilty of the war crime of ‘con-
scripting and enlisting children under the age of 15 years into armed forces or
groups or using them to participate actively in hostilities’ under Article 4(c) of
the SCSL Statute.38 In the CDF case, a conviction for the same crime was
entered,39 but later overturned by the Appeals Chamber.40 Convictions were
also entered against two accused in the RUF case.41 Additionally, the SCSL con-
victed former Liberian President Charles Taylor for recruitment and use of chil-
dren in hostilities.42
The AFRC, RUF and Taylor indictments also included counts on sexual slav-
ery, abductions and forced labour of civilians. To some extent, the Court mana-
ged to address the crimes committed against recruited children under such
counts. For example, the testimonies of some witnesses in AFRC were con-
sidered both under count 12 on the recruitment and use of child soldiers, as
well as under count 13 on abductions and forced labour.43 The accused were
ultimately found guilty not only of the crime of recruitment and use of chil-
dren in hostilities, but also for subjecting civilians, including children, to
sexual slavery and forced labour.
Moreover, the SCSL undertook important efforts to document crimes of a
sexual nature, including forced marriage of girls, who were sometimes re-
cruited as child soldiers and used as ‘wives’ by members of armed groups.44
After having discussed and dismissed the charges on sexual slavery as crime
conflict through a generic reference to violations of the laws and customs of war and to viola-
tions of Additional Protocol II respectively. See Art. 3 ICTY St., Art. 4 ICTR St.
36 Decision on Preliminary Motion Based on Lack of Jurisdiction, Norman
(SCSL-04-14-AR72(E)-131), Appeals Chamber, 31 May 2004. The majority ruled ç Judge
Robertson dissenting ç that the prohibition of recruitment and use of children under 15
years of age had certainly crystallized into a norm of customary international law at least by
November 1996, which was the start of the period relevant to the indictment. See ibid., x 53.
37 See AFRC, RUF and Taylor Trial Judgments. See also Judgment pursuant to Art. 74 of the Statute,
Lubanga (ICC-01/04-01/06), Trial Chamber, 14 March 2012 (hereinafter ‘Lubanga Trial
Judgment’).
38 AFRC Trial Judgment.
39 Judgment, Fofana and Kundewa (SCSL-04-14-T),Trial Chamber, 2 August 2007 (hereinafter ‘CDF
Trial Judgment’).
40 Judgment, Fofana and Kundewa (SCSL-04-14-A), Appeals Chamber, 28 May 2008 (hereinafter
‘CDF Appeal Judgment’).
41 RUF Trial Judgment.
42 Taylor Trial Judgment.
43 See, for example, the testimonies of witnesses TF1-157 and TF1-158, AFRC Trial Judgment, xx
1253^1278, relating to count 12; relating to count 13, AFRC Trial Judgment, xx 1352^1378.
44 See, for example, the testimony of witness TF1-085, AFRC Trial Judgment, xx 1259, 1076^1185 .
8 of 21 JICJ (2016)
against humanity in AFRC,45 the SCSL delivered the first ever convictions for
these crimes in RUF, followed by the Taylor case.46 Among the victims, many
were girls who had been abducted by armed groups and used in hostilities.
The SCSL, correctly, did not consider sexual slavery against recruited girls
under the charges of recruitment and use of child soldiers, and instead, prose-
cuted those responsible under specific counts of sexual slavery and sexual
violence.
However, the SCSL failed to consider sexual violence committed specifically
against children in the RUF case. This was despite several witnesses testifying
that many children had been subjected to sexual slavery.47 Additionally, the
charges referred to ‘civilian women and girls’. Such general formulations failed
to mention the number of girls subjected to sexual slavery, or the proportion
of girls among all victims.48 The fact that the SCSL did not consider children
as a specific category of victims of sexual slavery is particularly regrettable,
considering that it had the opportunity to do so under the child-specific provi-
sions of Sierra Leonean law included in Article 5 of the SCSL Statute.49
Ensuring adequate prosecution of child sexual slavery is particularly import-
ant because children are likely to be particularly affected, psychologically and
often physically, by the brutal and long-lasting impact of sexual slavery. The
SCSL rightly recognized the dreadful physical and psychological effects and
the social stigma attached to victims of sexual violence and slavery.50
According to witnesses’ testimonies, women and girls, who had been subjected
to sexual violence, were excluded by their communities in a number of differ-
ent ways: those who had been previously married were often abandoned by
their husbands, while young girls were no longer deemed eligible to marry.51
The SCSL found that discrimination against, and stigmatization of, victims of
forced marriage constituted a great obstacle to the victims’ reintegration into
45 The Trial Chamber dismissed count 7 on sexual slavery and count 8 on forced marriage as
other inhumane acts, as duplicitous and considered all evidence of sexual slavery within the
war crime of outrages upon personal dignity, which was charged separately under count 9.
See AFRC Trial Judgment, xx 696, 715^722.
46 RUF and Taylor Trial Judgments.
47 See, RUF Trial Judgment, x 1409, citing Exhibit 138, Expert Report on Forced Marriages, produced
by Expert Witness TF1-369, who interviewed a number of women victims of forced marriage,
many of whom were abducted school children. See also ibid., x 1520, reporting the testimony
of Expert Witness TF1-081, according to whom over 80% of pregnant women and girls who
had been abducted were between 14 and 18 years of age. Exhibit 104B, Exhibit P25 from
AFRC Trial Witness’ Report, at 6319^6320.
48 C. Aptel, ‘Unpunished Crimes: The Special Court for Sierra Leone and Children’, in C.C. Jalloh
(ed.), The Sierra Leone Special Court and its Legacy: The Impact for Africa and International
Criminal Law (Cambridge University Press, 2014) 353.
49 It established that ‘the Special Court shall have the power to prosecute persons who have com-
mitted the following crimes under Sierra Leonean law: a. Offences relating to the abuse of
girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): i. Abusing a girl under
13 years of age, contrary to section 6; ii. Abusing a girl between 13 and 14 years of age, con-
trary to section 7; iii. Abduction of a girl for immoral purposes, contrary to section 12’.
50 See, for example, RUF Trial Judgment, x 1352. See also Taylor Trial Judgment, xx 1020, 2035.
51 RUF Trial Judgment, x 1349.
their families and communities.52 The Trial Chamber in the RUF case found
that ‘sexual violence was intentionally employed by the perpetrators to alienate
victims and render apart communities, thus inflicting physical and psycho-
logical injury on the civilian population as a whole’.53 Arguably, social exclu-
sion and the loss of opportunities endured by victims of sexual violence and
slavery have even greater negative effects on children because they are in the
early phases of their development and hence in greater need of support and
guidance by their families and communities. Thus, it is regrettable that the
SCSL did not highlight this aspect.
Forced labour and forced marriage are not the only conditions amounting to
slavery in which child soldiers, and in particular girl soldiers, have been often
kept. During the AFRC trial, for instance, the prosecutor presented evidence
indicating that children were routinely recruited and used in combat by the
AFRC and RUF.54 Relevant to child slavery, the Trial Chamber found that ‘the
only method of recruitment described in the evidence is abduction’.55
Abducted children were subjected to a series of abuses, including being forced
to watch the brutal massacre of their parents and other members of their
family.56 Many were forced to undergo military training and formed into so-
called ‘Small Boys’ and ‘Small Girls’ units,57 before and during which they
were subjected to beatings and flogging; given daily injections and tablets of
drugs to make them fearless; forced into labour such as carrying heavy loads;
sent into battle, often at the frontlines; and used as human shields. Many of
these children, some as young as seven or eight years old, were used to
commit a number of crimes including rape, murder, amputations, and abduc-
tions. They were threatened with amputation or death if they tried to escape
or refused to obey orders.58
The gravity of these crimes is certainly not adequately captured or sub-
sumed within the crime of conscripting and enlisting children. Further, al-
though the recruitment of children does not necessarily imply that all child
soldiers are enslaved, the actual conditions to which children are subjected
may amount to slavery. Despite other laudable developments, the SCSL failed
to adequately address this particular issue.59 It should have acknowledged
that abduction of children and their use in hostilities may, in certain circum-
stances, amount to slavery per se, irrespective of them being subject to sexual
slavery and forced labour.
52 Ibid., xx 1296, 1349, footnote 2514.

53 Ibid., x 1349.
54 Ibid., xx 1244^1276.
55 Ibid., x 1276, 1285.
56 Ibid., xx 1256, 1275.
57 Ibid., x 1245.
58 Ibid., xx 1254^1275.
59 Aptel, supra note 48, at 353.
10 of 21 JICJ (2016)
C. The ICC
The ICC has largely followed the lead of the SCSL on this issue. It has paid par-
ticular attention to the recruitment and use of children as well as sexual slav-
ery in armed conflict but has failed to label them as child slavery.
The ICC’s first trial convicted and sentenced Thomas Lubanga on three
counts of war crimes for enlisting and conscripting children under 15 years of
age and using them to actively participate in hostilities.60 Similar charges
were brought in two other cases relating to the Democratic Republic of the
Congo. However, they were dismissed because of insufficient evidence.61
In June 2014, in the case against Lubanga’s co-accused Bosco Ntaganda, Pre-
Trial Chamber II unanimously confirmed the charges against him including
war crime of enlisting and conscripting child soldiers under the age of 15
years and using them to participate actively in hostilities.62 This trial opened
on 2 September 2015.63 Additionally, the prosecutor also brought charges of
conscripting and enlisting children in relation to the situation in Uganda,
against the top members of the Lord’s Resistance Army (LRA).64
During the Lubanga trial, victims and witnesses presented evidence that
highlighted the widespread commission of gender-based crimes, including
sexual slavery of women and girls. However, there were no specific charges of
sexual slavery or enslavement and the Trial Chamber could not establish
crimes that had not been charged.
In the aftermath, the prosecutor faced harsh criticism for the limited scope
of the charges against the accused.65 The request by the legal representatives
of some of the victims to add new charges, namely sexual slavery and
60 See Lubanga Trial Judgment. The sentence was upheld by the Appeals Chamber, see Judgment,
Lubanga (ICC-01/04-01/06), Appeals Chamber, 1 December 2014 (hereinafter ‘Lubanga Appeals
Judgment’).
61 Judgment, Ngudjolo Chui (ICC-01/04-02/12), Trial Chamber, 18 December 2012; Judgment,
Katanga (ICC-01/04-01/07), Trial Chamber, 7 March 2014. The Katanga verdict has become
final following no appeal. Ngudjolo Chui’s acquittal was recently confirmed by the Appeals
Chamber, see Judgment, Ngudjolo Chui (ICC-01/04-02/12), Appeals Chamber, 27 February 2015.
62 Decision Pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Ntaganda (ICC-01/04-02/06), Pre-Trial Chamber, 9 June 2014 (hereinafter ‘Ntaganda
Confirmation of Charges’).
63 Case information Sheet, Ntaganda (ICC-PIDS-CIS-DRC-02-007/14_Eng), updated7 September
2015.
64 Warrant of Arrest for Joseph Kony issued on 8th July 2005 as amended on 27th September
2005, Kony and others (ICC-02/04-01/05-53), Pre-Trial Chamber, 17 September 2005; Warrant
of Arrest for Vincent Otti, Kony and others (ICC-02/04-01/05-54), Pre-Trial Chamber, 8 July
2005; Warrant of Arrest for Okot Odhiambo, Kony and others (ICC-02/04-01/05-56), Pre-Trial
Chamber, 8 July 2005.
65 See, for example, the Joint Letter to the Chief Prosecutor of the International Criminal Court,
from eight human rights organizations, dated July 2006. Also Judge Odio Benito pointed out
the inconsistency of the extensive evidence on sexual violence in light of absence of any
count other than recruitment and use of children. Judge Benito further asked: ‘How is sexual
violence relevant to this case, and how does the Prosecution expect the Trial Chamber to refer
to the sexual violence allegedly suffered by girls if this is not in the facts and circumstances
described in the charges against Lubanga Dyilo?’. See Transcript of the Office of the
inhumane and cruel treatment,66 was denied by the Appeals Chamber on pro-
cedural grounds.67 Ultimately, the evidence presented during the trial was con-
sidered to prove the charges of recruitment and use of children, contributing
to a controversial legal debate over the interpretation of active and direct par-
ticipation in hostilities.68
The ICC considered charges of sexual slavery as a crime against humanity in
the Katanga and Ngudjolo Chui cases, where many children were among the
victims. However, akin to SCSL, the ICC addressed the crime of sexual slavery
committed against a general category of ‘women and girls’,69 without paying
special attention to child victims. This was not unexpected considering the
lack of jurisprudence on addressing child sexual slavery. An additional factor
that might have contributed is the absence of child-specific provision on
sexual crimes in the ICC Statute.
It is hoped that the child-specific dimension of sexual slavery will be ad-
dressed in future proceedings at the ICC. A promising development in this
regard is the decision of ICC Pre-Trial Chamber II in the confirmation of
charges decision against Bosco Ntaganda. It considered sexual slavery inflicted
against both civilians and child soldiers under specific charges and not only
under counts relating to recruitment and use of children in hostilities.70 Due
consideration of sexual slavery committed against recruited children may ar-
guably also contribute to highlighting the proportion of children among the
victims of such heinous crimes and bring them redress.
In conclusion, the SCSL did not resort to separate and cumulative charges or
convictions as it could, and arguably should, have done to reflect the whole
scope of crimes committed against the children associated with armed
groups. The ICC did even worse in the Lubanga case, which proceeded exclu-
sively on counts of recruitment and use of children in hostilities. As a
Prosecutor’s Closing Statements, Lubanga (ICC-01/04-01/06-T-356), Trial Chamber, 25 August

2011.
66 Joint Application of the Legal Representatives of the Victims for the Implementation of the
Procedure under Regulation 55 of the Regulations of the Court, Lubanga (ICC-01/04-01/06),
Trial Chamber, 22 May 2009.
67 Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial
Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that
the legal characterisation of the facts may be subject to change in accordance with Regulation
55(2) of the Regulations of the Court’, Lubanga (ICC-01/04-01/06), Appeals Chamber, 8
December 2009. The Court held that: ‘Regulation 55 (2) and (3) of the Regulations of the
Court may not be used to exceed the facts and circumstances described in the charges or any
amendment thereto’. See ibid., x 1.
68 On the issue of the definition of ‘use to actively participate in hostilities’, see C. Aptel, ‘Lubanga
Decision Roundtable: The Participation of Children in Hostilities’, Opinio Juris, 18 March 2012,
available online at http://opiniojuris.org/2012/03/18/lubanga-decision-roundtable-the-partici-
pation-of-children-in-hostilities/ (visited 6 December 2015).
69 Ngudjolo Chui and Katanga Trial Judgments.
70 Document Containing the Charges, Ntaganda (ICC-01/04-02/06), Pre-Trial Chamber, 10
January 2014. The Trial Chamber confirmed counts 7 and 8, on sexual slavery of civilians as a
crime against humanity and a war crime, respectively, and count 9, on sexual slavery of UPC/
FPLC child soldiers as a war crime.
12 of 21 JICJ (2016)
consequence, child soldiers who were victims of enslavement, sexual slavery,

forced pregnancy, and other crimes were not afforded adequate consideration
and redress. Hopefully, lessons learned from the jurisprudence of the interna-
tional tribunals on child soldiers will inform a better framing of the charges
in the future. The harm suffered by victims of sexual slavery and other forms
of enslavement deserves to be considered separately and, if applicable, like in
the case of child soldiers, additionally to the harm caused by being recruited
and used in hostilities.
The jurisprudence of the SCSL and ICC highlights the challenges in ensuring
effective prosecution of child slavery. It points to the risk of blurring the line be-
tween enslavement, recruitment and use of children, and sexual slavery as a
form of sexual violence against children. These are separate crimes and
should not be conflated. Doing so would leave unaddressed the plight of
enslaved children associated with armed forces or groups who suffered abuses
beyond being recruited and used in hostilities.71 There are specific provisions
criminalizing such acts in the statutes of the international criminal tribunals
and each of these crimes should be prosecuted as such. It is proposed that cu-
mulative charges be used, whenever possible, to ensure effective prosecution
of all crimes committed against children including slavery.
3. Child Forced Marriage as Slavery

Forced marriage is a widespread practice affecting millions of children in all
parts of the world, both in the context of armed conflict and otherwise.
Irrespective of formal recognition, forced marriage occurs when at least one
of the parties does not or cannot express his or her full and free consent or is
unable to end or leave the conjugal relation for various reasons including
social or family pressure.72 Besides being forced to marry against their will,
child victims of forced marriage, who are mainly girls, are often also subjected
to non-consensual sexual relations amounting to rape and forced pregnancy,
as well as being forced to perform a plethora of duties including domestic
chores, caring for their spouse and raising the children born from the mar-
riage. Forced marriage may amount to a form of slavery,73 when married
71 Aptel, supra note 48.

72 OHCHR, Preventing and Eliminating Child, Early and Forced Marriage, UN Doc. A/HRC/26/22, 2
April 2014 (hereinafter ‘OHCHR, Report on Forced Marriage’). According to the Report, ‘early
marriage can also refer to marriages where both spouses are 18 or older but other factors
make them unready to consent to marriage, such as their level of physical, emotional, sexual
and psychosocial development, or a lack of information regarding the person’s life options’. See
ibid., x 5.
73 See Anti-Slavery International, Out of the Shadows: Child Marriage and Slavery, April 2013, sug-
gesting that: ‘a potentially high proportion of child marriage cases appear to constitute the
worst forms of child labour under the 1999 ILO Convention No. 182.’ Recognition that forced
marriage may amount to slavery can also be found in some provisions of domestic law, see, in
general, OHCHR, Report on Forced Marriage.
children are subjected to conditions which meet the definitions of slavery and
slavery like practices.74
According to the United Nations Children’s Fund (UNICEF), over 700 million
of the women alive today around the world were married before they reached
18 years of age.75 The younger the children, the more vulnerable they are to
non-consensual and exploitative marriages. Also, the larger the age gap be-
tween the spouses and the related power differentials, the lesser is the agency
and autonomy of the younger spouse, who is usually the girl. Girls, in particu-
lar, are disproportionately affected by child marriage, which may be considered
‘a manifestation of gender inequality, reflecting social norms that perpetuate
discrimination against girls’.76 This is especially the case when deeply
embedded cultural beliefs, social norms, gender stereotypes and individual at-
titudes expect a girl to unquestionably obey older persons, in general, and her
husband, in particular.
Forced pregnancy, often resulting from rape, is a common feature of forced
child marriages. This is particularly worrying considering that statistics indi-
cate that pregnancy-related complications are the main cause of death for
young women, with girls under the age of 15 years being five times as likely
to die from childbirth as women in their twenties.77
The 1956 Supplementary Convention obliges states to undertake all ‘practic-
able and necessary legislative and other measures to bring about the abolition
or abandonment’ of various institutions and practices which amount to forced
marriage.78 These practices include: promising or giving a woman in marriage,
where she does not have the right to refuse, following payment to her parents,
guardians, family or another person or group; the right of a husband, his
family, or clan to transfer his wife to another person for value received, or for
any other reason; and the inheriting by another person of a woman on the
death of her husband.79
74 See the Slavery Convention and the Supplementary Convention. In particular, as per Art. 1(d)
Supplementary Convention, if it amounts to ‘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’.
75 UNICEF, Ending Child Marriage: Progress and Prospects (2014) (hereinafter ‘UNICEF, Ending Child
Marriage’). See also UNICEF, Committing to Child Survival: A Promise Renewed, Progress Report
(2012); UNFPA, Motherhood in Childhood: Facing the challenge of adolescent pregnancy (2013).
76 UNICEF, Ending Child Marriage. According to UNICEF, child marriage is prevalent among girls
in all parts of the world, in particular in South Asia and sub-Saharan Africa. India, by itself, ac-
counts for one third of the global total.
77 UNICEF, State of theWorld’s Children (2008). In some circumstances, the laws relating to rape or
statutory rape could be used to assist girls subjected to child marriage. However, in many coun-
tries the law provides an exception when the perpetrator is the husband.
78 Art. 1(d) Supplementary Convention. Towards this end, states are obliged under Art. 2
Supplementary Convention to ‘undertake to prescribe, where appropriate, suitable minimum
ages of marriage, to encourage the use of facilities whereby the consent of both parties to a
marriage may be freely expressed in the presence of a competent civil or religious authority,
and to encourage the registration of marriages’.
79 Art. 1(c) Supplementary Convention.
14 of 21 JICJ (2016)
Early and forced marriage has received increasing attention over the last few
years, owing to a range of contributions including remarkable civil society
global initiatives such as ‘Girls not Brides’.80 A recent Office of the High
Commissioner for Human Rights (OHCHR) report has noted the wide-ranging
impact of child forced marriage on the victims’ rights, who often face physical,
psychological, economic, and sexual violence, and restrictions on their move-
ment.81 The UN Special Representative of the Secretary-General on Violence
against Children has also demonstrated how child marriage makes girls espe-
cially vulnerable to violence and abuse.82 Child forced marriage, and the asso-
ciated early childbearing, constitute obstacles to accessing education for the
children concerned. The Special Rapporteur on contemporary forms of slavery
has also drawn links between child marriage and slavery, referring to servile
marriage.83 Furthermore, building on General Assembly and Human Rights
Council resolutions and panel discussions calling for further consideration of
child marriage,84 the General Assembly adopted a resolution on Child, Early
and Forced Marriage.85 It recognizes the need to include ending child marriage
within the post-2015 development agenda.86
Despite its increased visibility, forced marriage continues to be addressed
mostly under qualifications other than slavery, both nationally and interna-
tionally. For instance, the UN General Assembly, in its resolution 66/140, has
reiterated its call to end it as a ‘harmful traditional practice’.87 It urged states
80 See, ‘Girls not Brides’, availabline online at http://www.girlsnotbrides.org/ (visited 10 December

2015). ‘Girls Not Brides is a global partnership of more than 400 civil society organisations
from over 60 countries committed to ending child marriage.’ Other initiatives, for instance at
the inter-state level, include the appointment by the African Union of a goodwill ambassador
for ending child marriage, available online at http://www.africawln.org/awln-member-ap-
pointed-au-goodwill-ambassador-for-ending-child-marriage/ (visited 10 December 2015).
81 OHCHR, Report on Forced Marriage, x 21.
82 Special Representative of the Secretary-General on Violence against Children and Plan
International, Protecting Children from Harmful Practices in Plural Legal System (2012). See also
Plan International, A Girl’s Right to Say No to Marriage: Working to End Child Marriage and Keep
Girls in School (2013).
83 See Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and
Consequences, Report on Servile Marriage, UN Doc. A/HRC/21/41, 10 July 2012 (hereinafter
‘Thematic Report on Servile Marriage’). See also Special Rapporteur on Contemporary Forms
of Slavery, Including its Causes and Consequences, Report on Mission to Madagascar, UN Doc.
A/HRC/24/43/Add.2, 24 July 2013, especially, x 125. See Special Rapporteur on Contemporary
Forms of Slavery, Including its Causes and Consequences, Report on Servile Marriage,
Thematic Report on Challenges and Lessons in Combating Contemporary Forms of Slavery, UN
Doc. A/HRC/24/43, 1 July 2013.
84 See OHCHR, Summary Report on the June 2014 Panel Discussion on Preventing and
Eliminating Child, Early and Forced Marriage, UN Doc. A/HRC/27/34, 18 July 2014; General
Assembly, Panel Discussion on Child, Early and Forced Marriage of 5 September 2014, available
online at http://www.un.org/en/ga/president/68/pdf/letters/9152014Child%20Early%20and%
20Force%20Marriage%20Panel%20-%20Summary%20-%2015%20September%202014.pdf
(visited 10 December 2015).
85 GA Res. A/RES/69/156, 18 December 2014.
86 Ibid., x 7.
87 GA Res. A/Res/66/140, 19 December 2011, at 3.
to enact and enforce law concerning the minimum age of marriage and ensure
that marriage was based on free and full consent of the spouses.88 The terms
of formulation of this resolution failed to clearly indicate that if the spouse is
under-age, has not freely consented to the marriage, is subjected to a sense of
ownership, is forced to undertake labour and engage in non-consensual
sexual relations, then this marriage ç in and of itself ç may constitute
slavery.
This negative trend was noted by the former Special Rapporteur on
Contemporary Forms of Slavery, who remarked in her 2012 thematic report
on servile marriage that although the definition of practices similar to slavery
includes all forms of forced marriage, ‘[o]ver the years, however, the idea that
forced and early marriages are forms of slavery and, therefore, servile mar-
riage, has been lost’.89 Similarly, a prominent anti-slavery non-governmental
organization has noted the absence of recognition of the links between forced
early marriage and slavery.90 This is particularly worrying considering again
that, in most cases, children forced into marriage are subjected to a level of
ownership and control that meets the general definition of slavery under the
1926 Slavery Convention.91
International criminal jurisdictions have unfortunately followed the same
trend, as their prosecutions of early forced marriage have also not systematic-
ally reflected that this crime amounts to slavery.
A. International Prosecution of Forced Marriage

The crime of forced marriage was charged and prosecuted as such for the first
time by the SCSL. During the war in Sierra Leone, thousands of women and
girls were abducted by armed groups and forced to ‘marry’ their captors. They
were forced to perform a number of domestic chores, were repeatedly forced
into sexual intercourse with their ‘husband’, towards whom they were ex-
pected to be loyal, and had to bear the children born from these relations.92
The SCSL identified forced marriage as a separate crime distinct from slav-
ery, enslavement, recruitment and use in hostilities, rape or other crimes asso-
ciated with the practice. Undoubtedly, its jurisprudence contributed greatly to
bringing this contemptible practice to the attention of the international com-
munity. The SCSL Statute does not specifically list forced marriage as a pro-
hibited act within crimes against humanity, and therefore, the prosecutor
cumulatively charged it as constituting ‘other inhumane acts’ under Article
2(i), and sexual slavery under Article 2(g).
88 Ibid., x 18.
89 Thematic Report on Servile Marriage, x 13.
90 C. Turner, Out of the Shadows: Child Marriage and Slavery, Anti-Slavery International, 16 April
2013, at 7.
91 Ibid., at 17.
92 RUF Trial Judgment, xx 1349^1351.
16 of 21 JICJ (2016)
In AFRC, heard by the SCSL, the Trial Chamber found that forced marriage
failed to qualify as an ‘other inhumane act’, and that it did not exist independ-
ently of enslavement, sexual slavery, rape, imprisonment, and forced labour.93
Furthermore, the Chamber held that evidence brought by the prosecutor to
support the charge on forced marriage was ‘completely subsumed’ by the
crime of sexual slavery.94 Hence, the Trial Chamber considered all evidence of
sexual slavery within the war crime of ‘outrages upon personal dignity’.95
However, the Appeals Chamber overturned the findings of the Trial Chamber
and recognized forced marriage as a distinct crime falling within the category
of other inhumane acts.96 On appeal, it was held that forced marriage is not
predominantly a sexual crime and, while sharing certain elements with
sexual slavery, it contains a number of distinguishing factors, including forced
conjugal association resulting in great suffering and the relation of exclusivity
between ‘husband’ and ‘wife’.97 The Appeals Chamber declined, however, to
enter new convictions on this count, finding that ‘society’s disapproval of the
forceful abduction and use of women and girls as forced conjugal partners as
part of a widespread or systematic attack against the civilian population, is ad-
equately reflected by recognising that such conduct is criminal . . . incurring
individual criminal responsibility in international law’.98 The first convictions
for this crime were thus delivered by the SCSL in RUF. In this case, the accused
were found guilty of both the crimes against humanity of sexual slavery as
well as forced marriage as other inhumane act.99
The contrasting views expressed by Trial and Appeal Chambers on the rela-
tionship between forced marriage and sexual slavery, and whether forced mar-
riage constitutes a separate crime, leave open questions, notably, relating to
the legal nature of forced marriage as a sexual crime and how to charge the
accused in order to best reflect the whole scope of crimes suffered by victims
of forced marriage without diluting the concept of slavery.100
The ICC has provided no insight into this issue so far. Although forced mar-
riage has allegedly occurred in some of the situations under its scrutiny, for
93 Judge Doherty dissenting, the majority of the Trial Chamber held that sexual slavery and other
forms of sexual violence violated the rule against duplicity and confused sexual and non-sexual
aspects into the crime of sexual slavery. See AFRC Trial Judgment, xx 696^722, 2116^2123. The
majority ruling of the Trial Chamber found ‘no lacuna in the law which would necessitate a
separate crime of ‘‘forced marriage’’’. Ibid., x 713.
94 Ibid., x 713.
95 Ibid., xx 696, 715^722.
96 Judgment, Brima, Kamara and Kanu (SCSL-04-16-A-675), Appeals Chamber, 22 February 2008,
x 186 (hereinafter ‘AFRC Appeals Judgment’).
97 Ibid., xx 190, 195.
98 Ibid., x 202.
99 Judgment, Sesay, Kallon and Gbao (SCSL-04-15-A), Appeals Chamber, 26 October 2009 (here-
inafter ‘RUF Appeal Judgment’).
100 See C. Aptel, ‘International Criminal Justice and Child Protection’, in UNICEF Innocenti
Research Centre and Human Rights Program of Harvard Law School, Children and
Transitional Justice: Truth Telling, Accountability and Reconciliation (Harvard University Press,
2010) 67.
example, the Democratic Republic of the Congo,101 it has not been charged ac-
cordingly.102 Given the gravity of this crime and its widespread commission in
some of the situations currently under investigation,103 it is to be hoped that
the ICC will not only acknowledge existence of this crime but also address it
as a form of slavery. Against this background, the question how prosecutorial
strategies can effectively ensure proper consideration of forced marriage and
related crimes, including slavery, will be addressed.
On the one hand, it is clear that forced marriage is not entirely subsumed
within the category of sexual slavery as it includes a variety of other sexual
and non-sexual crimes, many of which may independently qualify as slavery.
On the other hand, framing forced marriage separately as a crime against hu-
manity rather than as a form of slavery risks watering down the gravity of
the crimes suffered by victims, notably, those of a sexual nature.104 These rela-
tionships are marked primarily by duress and coercion, even if some may last,
for complex social and psychological reasons or as a result of social or individ-
ual pressure and expectations, for example, which may arise when children
are born of the relations.105
The different views pertaining to forced marriage may have overshadowed
the sad reality that, in many cases, forced marriage may constitute a form of
slavery in and of itself, independent of other crimes committed in the course
of such coercive relation including sexual slavery and/or forced labour amount-
ing to slavery. Therefore, it is proposed that whole scope of crimes committed
against victims of forced marriage, including slavery, should be charged
through separate and ç where relevant ç cumulative charges, leading to the
possibility of cumulative convictions.106 Forced marriage encompasses a
number of practices including sexual violence, forced labour, and forced
101 See, for instance, Lubanga Trial Judgment, xx 340, 894^895. See also Women’s Initiative for
Gender Justice, Gender Report Card on International Criminal Court 2010 (2010), at 165^175.
102 H. Gekker, ‘Rape, Sexual Slavery, and Forced Marriage at the International Criminal Court:
How Katanga Utilizes a Ten-Year-Old Rule but Overlooks New Jurisprudence’, 25 Hastings
Women’s Law Journal (2013) 105.
103 The rate of child forced marriage has been observed to multiply during conflicts and humani-
tarian crisis situations where the increased risk of poverty and sexual violence leaves girls
even more vulnerable to this practice. See J. Schlecht, E. Rowley and J. Babirye, ‘Early
Relationships and Marriage in Conflict and Post-Conflict Settings: Vulnerability of Youth in
Uganda’, 21 Reproductive Health Matters (2013) 234; Report of the Secretary-General on
Forced Marriage of the Girl Child, UN Doc. E/CN.6/2008/4, 5 December 2007, at 4^5. This
was also highlighted in reports of the UN Independent International Commission of Inquiry
on the Syrian Arab Republic. See UN Doc. A/HRC/23/58, 4 June 2013, x 35; UN Doc. A/HRC/
24/46, 16 August 2013, x 36.
104 For an opposite view, arguing in favour of prosecution of forced marriage as a separate crime,
see M. Frulli, ‘Advancing International Criminal Law: The Special Court for Sierra Leone
Recognizes Forced Marriage as a ‘‘New’’ Crime against Humanity’, 6 International Journal of
Criminal Justice (2008) 1033.
105 See A.S.J. Park,‘Other Inhumane Acts: Forced Marriage, Girl Soldiers and the Special Court for
Sierra Leone’, 15 Social and Legal Studies (2006) 315.
106 See Aptel, supra note 48.
18 of 21 JICJ (2016)
conjugal association, and these aspects need to be addressed separately under

specific counts in addition to charges for slavery as crime against humanity.
Furthermore, it is submitted that forcing a girl to marry and to bear the chil-
dren of her captor are crimes per se. In cases similar to ones under consider-
ation by the ICC, even when both mother and child survive forced pregnancy,
they are often subject to social stigma and rejection, which leads to further
psychological trauma and difficulties in social reintegration.107
When committed in connection with an armed conflict, or in the context of
a widespread and systematic attack against the civilian population, the en-
slavement of children through forced marriage may amount to war crimes
and/or crimes against humanity.108 It is proposed that in such circumstances,
forced marriage and forced pregnancy should be charged as such by the ICC,
in addition to sexual slavery and enslavement through forced labour, by means
of cumulative charging.109
Labelling early and forced marriage as what it often is, namely, child slavery,
may contribute to highlighting the intrinsically abusive nature of the relation-
ship. It may also put pressure on concerned governments to fulfil their interna-
tional legal obligations with regard to slavery. National and international
criminal accountability is necessary to signal that these crimes are unaccept-
able. Replacing the term ‘marriage’, alluding to a lawful contractual relation,
with ‘slavery’, an international crime, moves the debate on child forced mar-
riage out of the personal sphere and places it in the public sphere where it
rightly belongs.
4. Towards a More Integrated Approach to Child

Slavery
Previous sections of this article have highlighted that there are multiple, and
sometimes overlapping, legal frameworks and categories of child slavery,
which are used by international criminal jurisdictions. It is argued that this
has resulted in a fragmentation of approaches towards prosecuting child
slavery.
This situation is further exacerbated by a lack of definitional clarity. While
the international legal system provides broad definitions on the meaning of
107 See C. Aptel, Children and Accountability for International Crimes: The Contribution of
International Criminal Courts, UNICEF Innocenti Working Paper No. 2010-20, August 2010, at
19.
108 While there is no explicit mention of forced marriage in ICC St., a number of criminal acts
commonly committed in the context of forced marriages can be captured by specific provi-
sions, most notably on the war crimes of rape, sexual slavery and enforced prostitution,
under Art. 8(2)(b)(xxii), 8(2)(e)(vii) ICCSt., on the war crime of outrages upon personal dignity,
see Art. 8(2)(c)(ii) ICC St., and on the crimes against humanity of enslavement, see Art.
7(1)(c) ICC St., and rape, sexual slavery, enforced prostitution, forced pregnancy and other
forms of sexual violence under Art. 7(1)(g) ICCSt.
109 Art. 9(1) ICCSt.
slavery, it lacks a comprehensive and coherent framework clarifying the types

of ‘institutions and practices’ ç or underlying patterns of criminal
conduct ç that constitute child slavery. Indeed, aside from the child-specific
provision of the 1956 Supplementary Convention and the activities listed in
ILO Convention Number 182, there are no international guidelines or agreed
upon definitional elements of child slavery. This lack of specificity arguably
leads to a situation in which practices and activities amounting to child slavery
are not always labelled as such, thereby undermining efforts to combat this
scourge. The lack of a comprehensive definition also prevents the collection of
accurate data and effective targeted action to tackle child slavery.110
One way to achieve definitional clarity would be to adopt a new instrument.
This would provide the constitutive elements of child slavery, capturing its dif-
ferent institutions and practices. Such an instrument could take the form of
an additional protocol to the 1926 Slavery Convention or an optional protocol
to the CRC. The latter instrument already has three optional protocols, which
states can accede to even if they are not parties to the CRC.111 In addition,
adopting a new optional protocol may also enable the Committee on the
Rights of the Child to review the reports of state parties, consider individual
complaints of violations, conduct inquiries, and make appropriate recommen-
dations to state parties. Adopting a law would be advantageous as the new
norms would be binding upon states.
Nonetheless, should initiatives seeking to establish hard law be too challen-
ging owing to time constraints or other limitations like lack of required polit-
ical will, an alternative would be that a resolution, guidelines or other soft
law instruments be adopted to clarify the definition of child slavery.
Fragmentation in tackling child slavery has also resulted from the multipli-
city of actors, notably within the UN system, involved in dealing with different
aspects of child slavery, sometimes in an uncoordinated manner. These actors
are not always engaged in efforts to combat child slavery as a whole, rather
they are, at times, focused on tackling specific practices that may be forms of
child slavery but are not labelled as such. Such actors include the Committee
on the Rights of the Child and the Committee on the Elimination of
Discrimination against Women,112 UNICEF, and OHCHR,113 and the Special
110 B. Andrees, ILO, Special Action Programme to combat Forced Labour,Why Definitions Matter,
3 February 2014, available online at http://www.ilo.org/global/about-the-ilo/newsroom/com-
ment-analysis/WCMS_234854/lang^en/index.htm (visited 10 December 2915).
111 For instance, the United States has not ratified the CRC, but has ratified the Optional Protocol
on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography.
112 Furthermore, the Committee against Torture has addressed forced marriage, and has identified
it as a harmful practice that may lead to the infliction of physical, mental or sexual harm or suf-
fering, with both short-term and long-term consequences, which negatively impacts on the cap-
acity of victims to realize the full range of their rights. See the Concluding Observations of the
Committee against Torture: Bulgaria, UN Doc. CAT/C/BGR/CO/4-5, 14 December 2011.
113 See, for instance, Preventing and Eliminating Child, Early and Forced marriage: Report of the
Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/26/22, 2
April 2014.
20 of 21 JICJ (2016)
Procedures mandate holders, in particular the Special Rapporteurs on

Contemporary Forms of Slavery, Including its Causes and Consequences and
on Trafficking in Persons, Especially in Women and Children,114 and on the
sale of children, child prostitution and child pornography.115 In addition,
Special Rapporteurs with country-specific mandates, and some Commissions
of Inquiry,116 have also addressed child slavery with respect to their area of
concern.
To effectively address child slavery necessitates tackling not only the symp-
toms, but also the systems that allow the enslavement of children. This re-
quires forming effective partnership and enhanced coordination across the
UN and the multilateral system, mainstreaming the issue into international
policy, developing frameworks and indicators, and intensifying cooperation re-
garding the fight against this practice.117
A last recommendation concerns the possibility of extending the monitoring
and reporting mechanisms on grave violations of children’s rights in situations
of armed conflict established by the UN Security Council and the Secretariat-
General to encompass child slavery. The sustained attention that the UN
Security Council devoted over the last decade to the recruitment and use of
children in hostilities has, in turn, led to the creation of a number of mechan-
isms, established by various Security Council resolutions, to address this and
five other grave violations.118 Among these mechanisms is the so-called ‘moni-
toring and reporting mechanism’ (MRM) designed to ensure systematic,
prompt, and reliable collection of information and reporting on the six listed
114 These Rapporteurs have addressed issues related to child slavery on a number of occasions, in
particular, in their annual thematic reports to the Human Rights Council and General
Assembly.
115 The Special Rapporteur has indicated that forced early marriage may sometimes be con-
sidered as sale of children for the purposes of sexual exploitation. See Report of the Special
Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, UN Doc. A/
66/228, 2 August 2011, at 8. See also Art. 1 (c)(i)-(iii), (d) Supplementary Convention. This
was also highlighted by the Pan-African Forum against the Sexual Exploitation of Children.
See UNICEF, Early Marriage: A Harmful Traditional Practice: A Statistical Exploration, 6 April
2005, available online at http://www.unicef.org/publications/files/Early_Marriage_12.lo.pdf
(visited 6 December 2015).
116 For example, the recent report of the Commission of Inquiry on Syria highlighted situations of
the widespread enslavement and sexual abuse of women and girls, in particular from the
Yazidi minority. See Report of the Independent International Commission of Inquiry on the
Syrian Arab Republic, Rule of Terror: Living under ISIS in Syria, 14 November 2014.
117 These have also been identified as a priority by the Roadmap for Eliminating Worst Forms of
Child Labour issued by the ILO as a result of the The Hague Global Child Labour Conference
2010. See ILO, Roadmap for Achieving the Elimination of the Worst Forms of Child Labour by
2016, 1 May 2010, x 11.2.
118 The Security Council has, over time, identified six grave violations, namely, the recruitment
and use of children; killing and maiming children; sexual violence against children; attacks
against schools or hospitals; abduction of children; and denial of humanitarian access. See
Office of the Special Representative of the Secretary-General for Children in Armed Conflict,
The Six Grave Violations against Children during Armed Conflict: The Legal Foundation, October
2009, updated November 2013, at 3.
grave violations against children.119 Due consideration should be given to

adding child slavery to these grave violations. The gravity of slavery, as well as
its widespread character, including during armed conflicts, clearly indicates
that it deserves equal attention as the other grave violations. Adding slavery
to the list of those violations that are monitored would allow the MRM to be
used to report and contribute to enforcing the prohibition of this inhuman
practice.
5. Conclusion
Today, as in the past, children, girls and boys, are particularly affected by slav-
ery, both quantitatively and qualitatively. In some contexts, certain child spe-
cific crimes, such as the recruitment or use of children to participate in
hostilities or child forced marriage, are constitutive of slavery.120 In many
other contexts, children are victims of slavery alongside adults, for instance in
the practice of bonded labour or human trafficking. In these contexts, children
are at least as affected as adults by these crimes and often suffer more because
of their relative physical and psychological vulnerability. For example, child
slaves are usually more susceptible than adults to be victims of cruel, inhuman
or degrading treatment, including beatings, and they are also subject to add-
itional specific violations, such as being deprived of education. In all contexts,
states are obliged to prohibit and eliminate slavery as a non-derogable and fun-
damental principle of international law. States should give due attention to all
the victims of these crimes, including children, and demonstrate extra vigi-
lance and sensitivity when children are the victims of the nefarious practice
of slavery.
The effective prosecution of the various forms of child slavery by interna-
tional jurisdictions has a fundamental role to play in its elimination. The recog-
nition by the SCSL of forced, early marriage has advanced the fight against
such slavery like practices, but the battle is far from being won. The framing
of charges brought before international criminal jurisdictions should be im-
proved and child slavery should be systematically charged whenever it occurs,
whether on its own, or alongside other charges.
Finally, there is a need to establish definitional clarity regarding child slavery
and move towards a more integrated approach in tackling this issue. With esti-
mates indicating that one out of four victims of slavery today is a child, it is
high time to bring the children out of the shadows in relation to slavery.
119 The MRM was established by SC Res. 1612, 26 July 2005. The MRM is established in states
where parties to conflict have been listed in the annexes of the Secretary-General’s annual
report and stays in place until all violations have ceased and parties are de-listed.
120 On the concept of ‘child specific crimes’, see Aptel, supra note 101.

Child Slavery and Child Brides

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Child Slaves and Child Brides

Several international legal instruments prohibit child slavery. These instru-

of adults, there is no need for evidence of threat or use of force, coercion,

The next section evaluates the treatment of child slavery as an independent

2. International Criminal Jurisdictions and Child

crimes against humanity.18 Enslavement constitutive of a crime against hu-

ownership over a person’.26 Furthermore, the Trial Chamber considered the

Interlocutory Appeal in Norman, the SCSL rejected the accused’s contention

52 Ibid., xx 1296, 1349, footnote 2514.

Prosecutor’s Closing Statements, Lubanga (ICC-01/04-01/06-T-356), Trial Chamber, 25 August

consequence, child soldiers who were victims of enslavement, sexual slavery,

3. Child Forced Marriage as Slavery

71 Aptel, supra note 48.

80 See, ‘Girls not Brides’, availabline online at http://www.girlsnotbrides.org/ (visited 10 December

A. International Prosecution of Forced Marriage

conjugal association, and these aspects need to be addressed separately under

4. Towards a More Integrated Approach to Child

slavery, it lacks a comprehensive and coherent framework clarifying the types

Procedures mandate holders, in particular the Special Rapporteurs on

grave violations against children.119 Due consideration should be given to

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