By Hannah Baumeister, Lecturer in Law at Liverpool John Moores University

In 2021, at least 22 million people lived in forced marriages. 41% of them were children. 65% of all forced marriages took place in Asia and the Pacific, followed by 13% in Africa, and 10% in Europe and Central Asia (International Labour Organization, Walk Free, and the International Organization for Migration, pp. 59-74).

Towards the overall objective of achieving gender equality and empowering all women and girls, States have committed to eliminate all harmful practices, including child, early, and forced marriage (CEFM), by 2030 as part of achieving United Nations Sustainable Development Goal 5.3.

One step on this still very long road to a happy ever after is to hold states accountable for their failure to respect, protect, and fulfil their human rights obligations. Human rights courts and treaty bodies have considered CEFM in the context of the right to marry and the right to family life. They also have discussed it as a discriminatory traditional practice that can include inhuman and degrading treatment and amount to modern slavery (see for example Equality Now and Ethiopian Women Lawyers Association v Federal Republic of Ethiopia 2015; Hadijatou Mani Koraou v The Republic of Niger 2008).

However, conflating child, early, and forced marriage and justifying it as a traditional practice can be counterproductive and lead to harmful consequences for both adults and children. Therefore human rights law needs to follow the more nuanced approach presented in forced marriage statistics and distinguish between child, early, and forced marriage. The post will discuss this further, using the case of M and Others v Italy and Bulgaria as an example.

M and Others v Italy and Bulgaria was decided by the European Court of Human Rights (ECtHR) in 2012. While the facts could not be fully established, it concerned a situation of economic migration and kidnapping for the purpose of marriage and exploitation, or a situation of an arranged marriage following Roma custom. Depending on which version of events one follows, Applicant M might have been one of the millions of girls who have been forced or coerced into a marriage.

Initially, the 17-year-old girl M and her family stated that they had moved from Bulgaria to Italy, following a promise of work by X. After they worked for X for a while, X told M’s father that his nephew wanted to marry M. When her father refused, M’s parents were beaten, threatened and forced to return to Bulgaria and to leave M in Italy. M was kidnapped, kept under constant surveillance, forced to steal, beaten, threatened, forced to marry X’s nephew, and raped (§§ 8ff., 23, 59). However, their account changed to say that M and her family came to Italy in search for work, met X, and arranged the marriage between X’s nephew and M to which M consented. M was not ill-treated, raped or forced to work. Rather, she undertook normal conjugal duties (§§ 23, 92, 138ff., 165).

Italy and Bulgaria followed the second version of events and submitted that the Applicants came to Italy in search of work, met X, and arranged and celebrated the marriage between M and X’s nephew according to Roma traditions (§§ 19ff.). Bulgaria argued that the practiced and accepted model of Roma marriage provided for early marriage, a marriage ceremony in the community rather than a religious or civil procedure, the fixing and paying of a bride price, and wedding rituals including consummation that proved the bride’s virginity (§§ 33, 137ff.).

The ECtHR rejected most complaints as inadmissible due to a lack of evidence. However, it noted that M was “a few months away from adulthood” (§ 165) when she got married, recognising but not discussing the issue of child and early marriage. The Court also emphasised that, even if the marriage was a traditional Roma marriage, M was still beaten and raped and the State had an obligation to investigate and take protective measures and deter serious breaches of an individual’s personal integrity by a husband or partner, especially where the abused spouse is a minor (§§ 104ff.).

The exchange highlights two issues; one, the homogenisation of child, early, and forced marriage, and two, the recourse to tradition to excuse or justify forced marriage.

Child, early, and forced marriages are formal or informal unions between two people. The United Nations Human Rights Council defines child marriage as a marriage where at least one party is under the age of 18 (p. 3) and an early marriage as involving at least one party “below 18 in countries where the age of majority is attained earlier or upon marriage” (p. 3). Horii defines early marriage as a marriage where at least one party is below the average age of marriage compared to the local norm. In a forced marriage, at least one party has not given free and full consent to the marriage (United Nations Human Rights Council, p. 4). Arguably, the label ‘forced marriage’ can include child and early marriage as a person below the minimum age of marriage is not considered to have the capacity to consent to marriage which renders the marriage forced. However, given the current focus on child marriage as a harmful practice and barrier to sustainable development (United Nations Department of Economic and Social Affairs), Human Rights Law needs to develop a more nuanced approach that distinguishes between child, early, and forced marriage. This would counter the creation of myths that only children are targeted for forced marriage. These misconceptions downplay and disregard adult forced marriage, resulting in impunity and secondary victimisation of, and a lack of targeted support for, survivors.

Similarly, it is important to distinguish between forced and traditional marriages and to be aware of, and sensitive to, local contexts to prevent the outright vilification of traditional practices and their practitioners. However, in many cases including M and Others (see also Co-Prosecutor v Chea Nuon and Samphan Khieu 2018; Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud 2018; Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu 2007; Prosecutor v Dominic Ongwen 2021), comparisons between forced and traditional marriages indicate an unacceptable tendency to use tradition as an excuse or justification for violence and harm that should not be tolerated or condoned. If a forced marriage was determined to actually be a traditional marriage to which at least the bride’s family (if not the bride herself) consented, it might be seen as a “simple forced marriage”. As such, it might be downplayed or disqualified by courts because victims are not seen as “real victims” of a “real forced marriage” that is characterised by a pre-existing and/or purposively created physical and non-physical coercion, a lack of consent, exclusivity of the forced wife, and a sexual and non-sexual purpose (Baumeister). Regional human rights courts and treaty bodies and those operating within them have lessons to learn in this regard to avoid ill-considered cultural relativism that leads to impunity and a lack of support for survivors as well as the denigration of traditions and customs.

M and Others is one of the few human rights cases that deals with child, early, and forced marriage. Being a European case, it highlights that forced marriages happen everywhere. However, its framing of M’s experiences as an early marriage following Roma traditions homogenises and Others victim-survivors and disregards, downplays, excuses, and/or justifies the violence and harm they experience. Regional human rights courts and treaty bodies, and those operating within them, have to adopt a more careful approach to comparisons between child, early, and forced marriage and traditional marriage practices to provide nuanced and sensitive responses to victim-survivors’ experiences.

Image: painting by Vassili Vladimirovich Pukiryov, The Unequal Marriage (1862) via Wikimedia Commons