Forced Marriage Real Simple

The concepts of ‘real rape’ and ‘real rape victim’ play a key role in the reporting and prosecution of rape cases and strongly influence their outcomes. Similar biases and misconceptions obscure other acts of gender-based violence such as forced marriage in times of armed conflict. This paper analyses how the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Court construct and reconstruct the concepts of a ‘real’ and ‘simple forced marriage’. It argues that the difference lies in the elements of consent, coercion, duration and purpose. The paper highlights the gendered everyday realities in which myths surrounding conflict-related forced marriage are embedded and then taken for granted and accepted as normal, contributing to the denial, downplay or justification of acts of violence against women. It argues that by reinforcing these concepts, courts miss an opportunity to educate the legal community and the public about women’s experiences in peace and wartime and to develop a definition of the crime of forced marriage that reflects women’s realities.

rape', in contrast, occurs within the private sphere and is perpetrated by a man known to the victim who shows no obvious signs of resistance or violence. 2 The pervasiveness of these concepts in and outside of the criminal justice system results in the disqualification of, and underreporting by, women who do not consider themselves 'real victims' and their experiences 'real rape'. 3 It shifts the focus from the acts of the perpetrator to those of the survivor who is treated with suspicion and a lack of sensitivity, faced with victim blaming attitudes and subjected to intrusive questioning about their state of mind based on their actions and inactions. 4 This leads to a majority of rapes being disregarded as the grave harm, injury to personal integrity and act of aggression that they are. 5 Similar biases and misconceptions exist in relation to other acts of genderbased violence, forced marriage in times of armed conflict being one of them. Stories of women in Sierra Leone and Uganda invoke images of conflicts where male fighters abduct women and girls, take them to their camp, label them a fighter's wife and subsequently subject them to various acts of physical, sexual and psychological violence, including rape, forced pregnancy, forced labour, corporal punishment and enslavement. 6 Similarly, stories of Malian women call attention to the highly coercive environment of cities under armed occupation that pervert traditional marriage practices. 7 Stories of women and men in Cambodia highlight the brutality and all-encompassing ideological rigidity of the Khmer Rouge regime that married strangers in mass ceremonies and forced them to consummate their marriage and procreate as a step in their socialist revolution and creation of a new society. 8 Their stories become stories of 'real forced marriage'.
Comparatively, stories of Cambodian men and women who consented to marriage, 9 of Malian women who were temporarily married to members of Ansar Eddine and Al Qaeda in the Islamic Maghreb with the apparent consent of their families to allow sexual intercourse, 10 of Malian and Sierra Leonean women who arguably married, or were married off, for survival, protection and access to resources, 11 and of Sierra Leonean women who were forced into marriage with fighters of the Armed Forces Revolutionary Council (AFRC) or the Revolutionary United Front (RUF) and stayed with their forced husband without attempting to escape 12 become stories of 'simple forced marriage'.
This article analyses how the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC) construct and reconstruct the concepts of a conflictrelated 'real' and 'simple forced marriage'. It highlights the gendered everyday realities in which those concepts are embedded and then taken for granted and accepted as normal, contributing to the denial, downplay or justification of acts of violence against women. 13 By reinforcing these concepts, the courts miss an opportunity to educate the legal community and the public about women's ex- to Call an Additional Expert Witness) SCSL-04-16-T 'AFRC Case ' (8 August 2005); RUF, 'Trial Judgment' (n 11) paras 1293, 1407-1408, 1467. Stewart, Dobbin and Gatowski (n 1); Ellison and Munro, 'A Stranger in the Bushes' (n 1). 13 periences in peace and wartime and to develop adequate definitions of crimes that reflect women's realities. 14

The Cases
Since the SCSL took up its work in 2002, 15 international and hybrid courts have addressed forced marriage in the context of different conflicts and have categorised, defined and understood the crime in different ways.
The SCSL dealt with cases of forced marriage committed by the AFRC and RUF during the civil war in Sierra Leone between 1991 and 2002. Members of fighting groups abducted or captured civilian women and girls, forced them into unlawful marriages to fighters and subsequently subjected them to various acts of gender-based psychological, physical and sexual violence. 16 In an attempt to explain the perpetration of conflict-related forced marriages in Sierra Leone, they are compared to peacetime conventions of marriage by capture that are pushed into the context of conflict. However, a more nuanced understanding would consider the lack of material wealth of fighting groups. In this context, forced wives are used as a low-cost payment system and seen as remuneration for fighters' bravery. The number of forced wives then also becomes a status symbol with higher ranking fighters being assigned, or allowed to choose, more wives than fighters of lower rank. In addition to indicating a fighter's social status, forced marriage also indicates his status as an adult man by providing an opportunity to fulfil a masculine ideal of marriage, parenthood and being the provider for, and protector of, wives and children. Forced wives, in turn, become an inherent part of a fighting group's organisational structure and are coerced into participating in direct combat, performing domestic work and acting as wives to their forced husbands and as mothers to the children born into forced marriages. This indicates that their presence in fighting groups is of vital importance for the creation of bonds and dependency structures that are intended to advance the creation of a new social order, increase unit cohesion and stability, and reduce the likelihood of escape in an already extremely coercive environment. Contrary to this, forced marriage also strategically serves the In addition to the SCSL, the ECCC addressed forced marriages that were perpetrated as part of a nationwide policy during the 1975-1979 reign of the Khmer Rouge. Here, the regime held mass ceremonies in which it forced men and women into lawful marriages. Often the spouses were strangers who were matched based on their similar backgrounds and married without advance notice or a way to refuse. They were then pressured to consummate the marriage and to have children. In Cambodia, forced marriages were part of the ruling party's socio-economic programme to reconstruct the country and its society as part of a socialist revolution. Forced marriages were a means to control sexual relations between men and women with the goal to rapidly increase the population of 'desirable citizens' through births in an attempt to socially engineer the future population through forced procreation. 18 Thirdly, the ICC currently deals with forced marriages perpetrated during the armed conflicts in Uganda since 2002 and Mali in 2012/13 in the cases against Dominic Ongwen 19 and Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud 20 respectively. In regard to forced marriage, the situation in Uganda is similar to that in Sierra Leone. A fighting group, the Lord's Resistance Army (LRA), abducts or captures civilian women and girls, forces them into marriage with fighters and subjects them to acts of sexualised violence and forced labour. This is done to control a person's sexuality, to reward fighters and to demonstrate and increase their status in the group, to keep the fighting group operational, to demoralise and disable the opponent, and to create bonds within the fighting group and a new social order in the wider society. 21 LL Amowitz and others, 'Prevalence of War-Related Sexual Violence and Other Human Rights Abuses Among Internally Displaced Persons in Sierra Leone ' (2002)  Al Hassan, 'Rectificatif à la décision relative à la confirmation des charges portées' (n 10) para 563ff. 20 Ongwen, 'Decision on the Confirmation of Charges' (n 19) para 87ff; Amowitz and others (n 17); T Allen and M Schomerus, 'A Hard Homecoming: Lessons Learned from the Reception In Mali, the city of Timbuktu was seized and fell under the control of Ansar Eddine and Al Qaeda in the Islamic Maghreb. In this context, women were forced into marriage through intimidation by armed men who used threats and physical violence if the victim or her parents refused their propositions and offers of money. Once married, women were subjected to acts of sexualised violence and in some cases raped repeatedly by several men in fighters' camps before they were swiftly divorced again. Some women also had to perform domestic tasks. In Mali, forced marriages were used as a means to gain and exercise control over the local population and their land. Like in Sierra Leone and Uganda, forced marriage was a way to form ties between members of the fighting group and the local population, to reward fighters and to allow sexual intercourse between members of the armed groups and local women and girls to create a new society. 22

Real Simple
In AFRC, RUF, Case 002, Ongwen and Al Hassan, the SCSL, ECCC and the ICC discussed the difference between forced and traditional marriages in Sierra Leone, Cambodia, Uganda and Mali. They also considered apparent benefits such as protection, socio-economic support and payments of money forced wives or their families received from forced husbands or through the marriage. Those relative benefits prompted some forced wives to stay with their forced husband sometimes even after the conflict had ended and deterred them from attempting to escape, something that was further discouraged through intimidation and threats of physical punishment and death. Through discussions of the differences between forced and traditional marriages, relative benefits and possibilities of escape, the courts examined the state of mind of the survivor rather than the actions of the perpetrators, indirectly asking if forced wives or their families consented to the forced marriage. An element of consent would mark a forced marriage as a 'simple' rather than 'real forced marriage'. However, the courts also recognised that coercive circumstances vitiate consent, making a forced marriage a 'real forced marriage'. Taking into account pre-existing as well as purposively created coercive environments returned the focus to the words and conduct of perpetrators. However, courts neglected wider historic, socio-political, and economic circumstances and their impact on interpersonal relationships in fighting groups. In addition to consent 'Recognition of and Intervention in Forced Marriage as a Form of Violence and Abuse' (2012) 13 Trauma, Violence and Abuse 176; Kramer (n 6). Al Hassan, 'Rectificatif à la décision relative à la confirmation des charges portées' (n 10) para 563ff; Al Hassan, 'Prosecution's Final Written Observations Regarding Confirmation of the Charges' (n 11) para 8ff. 22 and coercion, the SCSL, ECCC and ICC indicated that the nature of a forced marriage determines if a forced marriage is a 'real' or a 'simple forced marriage'. Temporarily limited unions that were formed predominantly for sexual purposes, for example, are seen as 'simple' rather than 'real forced marriages' because they were never meant to be a lifelong sacrosanct union 23 of two people that creates mutual obligations. 24 The following part of the article elaborates on these points. It argues that the courts' construction of conflict-related 'real' and 'simple forced marriages' is based on biases and misconceptions that are embedded in taken-for-granted gendered everyday realities that contribute to the denial, downplay or justification of acts of violence against women. They have to be taken into consideration when developing a definition of the crime of forced marriage for the purpose of International Criminal Law to prevent patriarchal stereotypes from being enshrined in law and to ensure an appropriate reflection of survivors' experiences.

Traditions as Proxies for Consent
In the AFRC 25 case, the SCSL considered the differences between traditional and early marriages on the one hand and conflict-related forced marriage on the other in an effort to understand the context, socio-cultural meaning and long-term consequences of forced marriages formed during the conflict in Sierra Leone. In doing so, they intended to highlight differences between acts they considered criminal and those locally accepted as normal. Based on the expert testimony of Zainab Bangura, the court stressed the importance of familial consent and marriage ceremonies in customary marriages and the absence of both in conflict-related forced marriages.
In Case 002, the ECCC distinguished traditional and forced marriages in Cambodia. It highlighted that traditional marriages were arranged by the spouses' parents with the consent or acquiescence of the bride and groom. They included a payment of a dowry and a wedding ceremony marked by communal and religious elements. In forced marriages, the Khmer Rouge regime took the place of the parents and authorised marriages of men and women who were matched based on age, class, status, location and ethnicity. Here, collective consent took priority over familial and individual consent. Couples were married in mass ceremonies in which spouses would 'make a resolution announcing their biographies and their loyalty to one another' 26 as well as to the regime. Once married, members of the regime forced or coerced them to consummate their marriage and procreate. While spouses lived separated, they were pressured to meet regularly for reproductive purposes. They could not refuse to marry or to consummate the marriage for fear of violence and death and they did not have the right to divorce. 27 The ICC discussed the difference between traditional and conflict-related forced marriages in Ongwen and Al Hassan. In the case against Dominic Ongwen, the Prosecutor highlighted the difference between traditional and conflictrelated forced marriages in Uganda. She emphasised rites of courtship, the payment of a dowry and social benefits resulting from traditional marriages, and the absence of these elements in conflict-related forced marriages. 28 In the case against Al Hassan, the ICC began to explore the difference between traditional Malian marriages, temporary marriages recognised under Islamic law and forced marriage as allegedly perpetrated by members of Ansar Eddine and Al Qaeda in the Islamic Maghreb during the armed conflict in Timbuktu. Similar to traditional marriages in Sierra Leone, the court stressed that traditional forms of marriage in Mali are marked by individual or familial consent, the offer or payment of a dowry and the performance of a marriage ceremony. 29 In temporary marriages, the spouses are married for a limited period of time, sometimes with an exchange of money, with an easy way to divorce. 30 Conflict-related forced marriages in Mali were temporary marriages that involved a payment of a sum of money. Therefore, they included elements of traditional and temporary marriages. However, the ICC Prosecutor described forced marriage in Mali as 'inherently coercive' 31 as they were formed through intimidation and the use of physical violence in the context of an armed conflict by members of feared, armed and violent groups without the option to refuse. 32 In these cases, the courts indirectly raised questions about the lawfulness of the marriages and the state of mind of survivors and their families. If conflictrelated forced marriages would be comparable to traditional marriages that are in accordance with domestic or customary law, they might not amount to 'real forced marriages'. However, according to the ICC Pre-Trial Chamber II in Ongwen, the lawfulness or unlawfulness of a marriage is not an element of the crime of forced marriage. 33 This is supported by the findings of the SCSL 34 and the ECCC 35 as they determined that unlawful forced marriages in Sierra Leone as well as lawful forced marriages in Cambodia amounted to 'real forced marriages'. As mentioned above, in Sierra Leone, members of fighting groups captured or abducted women and group leaders subsequently assigned them as wives to particular fighters. This indicates that conflict-related forced marriages disregarded domestic and customary laws that emphasised a period of courtship, individual or familial consent, the payment of a dowry and the holding of a marriage ceremony. Consequently, they were unlawful. Independent of this, the SCSL found that members of the AFRC as well as the RUF perpetrated 'real forced marriages'. 36 In Cambodia, the Khmer Rouge regime developed a government policy on marriage that underlined the importance of the family as the basis for the development of a new society in accord with the ideology of its socialist revolution. The implementation of this policy meant a clear departure from traditional marriages based on children's respect for their parents and religious beliefs and a move towards the subordination of the individual and familial to the collective that took a parental position and authorised, organised and monitored marriages. This policy was enforced, including by violent means, throughout Cambodia and the spouses and their families viewed these conflict-related forced marriages as fully valid. Nevertheless, the ECCC determined that they amounted to 'real forced marriages'. 37 While the lawfulness or unlawfulness of a conflict-related forced marriage does not appear to influence its classification as a 'simple' or 'real forced marriage', consent makes a difference and situations where victims or their families consented to the marriage might not be understood as 'real forced marriages'.
In contrasting forced and traditional marriages in Sierra Leone 38 and Cambodia 39 as well as forced and temporary marriages in Mali, 40 the SCSL, ECCC and ICC emphasised and privileged familial over individual consent. Consequently, a marriage with the consent of the bride's family but without the assent of the bride herself would be a 'simple' rather than a 'real forced marriage' as the element of familial consent is met and individual consent is optional. 41 Here, the courts moved away from a liberal and Western individualistic notion of consent as enshrined for example in Article 16(2) of the Universal Declaration of Human Rights 42 and began to recognise the existence and validity of some alternative types of consent. 43 However, by prioritising familial over individual consent, they built on and perpetuated the erasure of peacetime violations of women's right to consent to marriage and assumed a benign nature of communities. 44 In Ongwen, the ICC Pre-Trial Chamber II took a different approach to consent and stressed that the 'central element of forced marriage is the imposition of "marriage" on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator's "wife"' (emphasis added). 45 By emphasising 'the will of the vic-  44 Ongwen, 'Decision on the Confirmation of Charges' (n 19) para 93. 45 tim', 46 the court focused on individual consent to marriage. In doing so, it suggested that a conflict-related forced marriage is a 'real forced marriage' if it is formed against the bride's will.
By extension, a forced marriage would also be a 'real forced marriage' if the victim is considered legally incapable of giving genuine consent to the marriage, for example because of their age. 47 Furthermore, minors exemplify 'real victims' who are young, vulnerable, helpless and in need of protection, making it more likely that their experiences of forced marriage are classified as 'real forced marriages'. 48 As demonstrated above, a focus on familial consent evades the classification of an early marriage as a 'real forced marriage' as the spouses' individual consent, or their inability to give genuine consent, is superseded by the consent of their families. The SCSL touched upon questions related to the minimum age for marriage especially in the AFRC case. However, these were subsumed under the more general distinction between traditional and conflictrelated forced marriages in Sierra Leone and not explored further. 49 At trial stage in the AFRC case 50 as well as in the case against Charles Taylor, 51 the court circumvented questions related to consent to marriage altogether by establishing conflict-related forced marriage as a form of the jus cogens crimes of sexual slavery and conjugal enslavement respectively. 52 In addition to situating forced marriage in the context of historical and modern slavery and the struggle for its abolition and decolonialisation that highlights the seriousness ibid. The ICC considers children to be any person under the age of eighteen. Child soldiers, however, are persons under the age of fifteen who are enlisted, conscripted and participate actively in hostilities. Zainab Bangura explains in her expert testimony before the SCSL that Sierra Leone does not have an express legal minimum age stipulation for marriage. Instead, the minimum age for marriage depends on whether a woman is married under general, customary or Islamic law and in practice ranges from ten to eighteen years of age. According to data collected by the UN, the minimum age for marriage in Mali is fifteen for women and eighteen for men. In Uganda, the minimum age is eighteen for both spouses. However, as Bangura's analysis suggests, the minimum age for marriage in Mali and Uganda might be different in different legal systems. Williams (n 1); Andrias (n 1); Du Mont, Miller and Myhr (n 1); Dowds (n 2). of the conduct, legally and socially, both categorisations signal a lack of consent. 53 Consequently, the state of mind of the survivor does not need to be examined and the investigatory focus is placed on the actions of the perpetrator. Moreover, under this label, the question of whether or not a conflict-related forced marriage is a 'real' or 'simple forced marriage' does not arise as the conduct is not seen as forced marriage in the first place and as a form of slavery or enslavement instead. Despite these advantages of categorising conflict-related forced marriage as a form of slavery or enslavement and despite forced marriages meeting the necessary element of perpetrators exercising powers attaching to the right of ownership over victims, 54 this categorisation does not fully address the unique and complex experiences of forced spouses, 'the harms and abuses suffered and the conditions or terms in which the harms occurred'. 55 Women were enslaved for purposes of forced marriage, including forced labour and impregnation. In the same vein, the victims were not only subjected to repeated sexual abuses in conditions in which they were deprived of their freedom, they suffered additional injuries such as stigmatisation and ostracisation arising from being labelled 'wives' and made to engage in duties associated with marriage. 56 To summarise, an element of consent shaped the SCSL's, ECCC's and ICC's understanding of a conflict-related forced marriage as a 'real' or 'simple forced marriage' albeit in different ways depending on the approach to consent. If a focus is placed on familial consent to marriage, the absence thereof is a marker of a 'real forced marriage'. In a 'simple forced marriage', in contrast, the individual spouses are married against their will but with the consent of their families. However, if the courts emphasise individual consent, a 'real forced marriage' is marked by the lack of consent of the individual spouses. This includes situations where one or both spouses are deemed incapable of giving genuine consent. To determine individual or familial consent, the courts have to confirm the survivor's state of mind. This unduly moves the focus of the inquiry away from the words and conduct of the perpetrator and the context in which they acted and places an emphasis on the actions or inactions of the victim. Often inappropriate, punitive questioning during investigations and at trial contributes to secondary victimisation of those the police, lawyers and courts set out to protect. Only patriarchal stereotypes of, and attitudes to, women remain safe and guarded. 57

Benefits as Proxies for Consent
Continuing in this line, in the AFRC 58 as well as the RUF case, 59 the court also deliberated whether, despite being abducted, forced into marriage and coerced to perform sexual and other services for their forced husbands and the fighting group, forced wives benefitted from the forced marriage because they received protection, food and access to looted goods and consequently might not have attempted to escape and in some cases stayed with their forced husband even after the conflict had ended.
The Defence teams in RUF 60 and Al Hassan 61 appeared to suggest that the relative benefits forced wives or their families received from their forced husband in the form of protection and access to resources during their forced marriage or as a payment of a sum of money at the outset signified their consent to the marriage. Furthermore, by accepting those alleged benefits, forced wives arguably demonstrated tactical agency under coercive circumstances. Consequently, they are not seen as 'real victims'. 62 As demonstrated above, consent of 'simple Andrias (n 1); Estrich (n 1); Dowds (n 2). Williams (n 1); Andrias (n 1); Du Mont, Miller and Myhr (n 1); Dowds (n 2). 62 victims' who act strategically to improve their situation would lead to the classification of these forced marriages as 'simple' rather than 'real forced marriages'.
In the RUF case, the SCSL considered situations where women were forced into marriage and subsequently gained access to resources and protection from their forced husband. Some forced wives also stayed with their forced husband after the conflict had ended, often out of socio-economic necessity. 63 The Defence appeared to suggest that an initially forced marriage can become consensual through even a coerced exchange of goods and services that arguably could take on the form of mutual conjugal obligations in the form of loyalty and the provision of sexual, reproductive, domestic and support services of the wife in exchange for the protection and provision of material resources by the husband. 64 As demonstrated above, an element of consent, possibly even reluctant agreement or survival consent given under highly coercive circumstances, transforms a conflict-related forced marriage from a 'real' into a 'simple forced marriage'. Importantly however, following this interpretation would reverse the understanding that coercive circumstances make genuine consent impossible. 65 It would also dispute the court's previous determination in the AFRC case. Here, the SCSL found that any reluctant agreement given or any benefit received during the forced marriage does not vitiate the criminal nature of the initial action of forcing a person into marriage. 66 Following this, situations where forced wives receive a relative benefit from their forced husband or through their forced marriage are still categorised as a 'real forced marriage'. Similarly, the court also stated that forced wives holding positions of respect, wives of commanders and Mammy Queens for example, does not detract from having been coerced into a 'real forced marriage'. 67 The ICC's decision on questions of consent and culpability in the case against Dominic Ongwen might prove illuminating in this debate. Ongwen was abducted and made a child soldier and was therefore initially forced into the LRA. Eventually, however, he became a commander of the group and allegedly chose to participate in their criminal AFRC, 'Decision on Prosecution Request for Leave' (n 25); RUF, 'Trial Transcript' (n 11); RUF, 'Trial Judgment' (n 11) para 1413; Coulter (n 6); Oosterveld, 'Forced Marriage and the Special Court for Sierra Leone' (n 17). 63 actions 68 possibly because he was socialised into the LRA and became a victim of circumstances. 69 His participation might also have been a strategic choice and a means of survival. 70 However, Ongwen's continued active participation in the LRA and his rise in their ranks might also have been motivated by feelings of loyalty towards the group, a shared ideology and a wish to gain power, status and influence. 71 Depending on the court's decision on questions of mental capacity and duress, Ongwen might be held responsible for his actions and the initial violation of his rights might be superseded by his later wilful participation in the LRA. Following this line of argument without intending to equate the experience of Dominic Ongwen with that of forced wives, women who are initially forced into a marriage and subsequently gain a relative benefit from, and therefore might be said to have consented to and wilfully participated in, the union might not be seen as 'real victims' and their experiences not categorised as 'real forced marriages', as the Defence in the RUF case suggests.
Additionally, the ICC might refer to the AFRC or RUF case and the SCSL's considerations of forced marriage with relative benefits in its deliberations in Al Hassan. Here, conflict-related forced temporary marriages in Mali included a payment of a sum of money to the bride or her family. 72 Accepting the payment, albeit under coercion, could be interpreted as individual or familial consent to the marriage. Again, this would lead to its categorisation as a 'simple' rather than 'real forced marriage'. However, compared to conflict-related forced marriages in Sierra Leone, consent would have been given at the beginning of the marriage rather than later in its course. Taking this into account, a conservative reading by the court might not recognise acts of violence perpetrated within the marriage as crimes. However, taking into consideration the ECCC's finding that rape in the context of forced marriage amounts to another inhumane Al Hassan, 'Rectificatif à la décision relative à la confirmation des charges portées' (n 10) para 565; Al Hassan, 'Prosecution's Final Written Observations Regarding Confirmation of the Charges' (n 11) para 12. 72 act, 73 it is unlikely that the ICC would go back on the progress that has been made, for example, regarding the concept of continuous consent and the criminalisation of marital rape. However, it might follow the SCSL in Taylor 74 and separate an 'interrelated whole conduct' 75 into the initial act of forcing or coercing a person into a conjugal association without their consent on the one hand, and the acts of gendered physical, sexual and psychological violence perpetrated within that union on the other. This would not fully capture survivors' experiences and the nature of forced marriage as a process and a 'larger overarching [gendered] harm associated with [this] particular collection of [sexual and non-sexual] offences (…) that other international criminal law terms [such as sexual slavery or enslavement] do not adequately or fully capture.' 76 As the Prosecution in the AFRC case stressed: Sexual slavery does not necessarily amount to forced marriage, in that a sexual slave is not necessarily obliged to pretend that she is the wife of the perpetrator. Similarly, a victim of sexual violence is not necessarily obliged to perform all the tasks attached to a marriage. 77 The label 'marriage' attached to this coerced, involuntary relationship marked by gender-based violence can manipulate forced spouses into loyalty towards each other or create a feeling of commitment between them. It can result in mutual obligations and long-term socio-economic dependency that extend beyond the end of the conflict. This is further influenced by traditional gender and family norms that prescribe women's subordination and a collective lifestyle that discourages single motherhood. Moreover, it is affected by the social stigmatisation that portrays survivors of forced marriage as willing collaborators. 78 This indicates that a forced marriage is more than the sum of its parts. The totality makes it a distinct crime that cannot be adequately captured by existing categories of international crimes or in a collection of separate charges. 79 Consequently, if the ICC in Al Hassan follows the SCSL's determination in Taylor, it would not fully address the crime of conflict-related forced marriage and its consequences. However, the Prosecutor in Al Hassan appeared to aim for a more just outcome when she stressed that the harm and stigmatisation that forced wives experience is different from, and in addition to, that resulting from sexual violence. 80 While a separate crime of forced marriage would do important work to address the injustices forced spouses have experienced in the past, categorising it as a form of slavery or enslavement to highlight the absence of consent of victims might work towards changing social perceptions of the conduct and consequently survivors' experiences in the future, serving the broader women's rights agenda. 81 However, the same could be achieved by developing a fuller, less patriarchal understanding of forced marriage as the conflict-related gender-based violation of a person's autonomy that it is.
Developing the previous conclusion further, a conflict-related forced marriage is a 'simple' rather than a 'real forced marriage' if an element of consent is met, be it familial or individual consent, possibly even if given once under coercive circumstances and in exchange for a relative material or immaterial benefit.

A Lack of Resistance as Consent
In addition to questions about individual and familial consent raised by inquiries into the differences between traditional and conflict-related forced marriages and relative benefits victims receive through a forced marriage, an apparent lack of resistance could be interpreted as consent. 82 Consequently, courts might interpret a conflict-related forced marriage as a 'simple' rather than a 'real forced marriage' if a forced wife did not attempt to escape and misplace the focus of the inquiry on the actions or inactions of the survivor rather than the words and conduct of the perpetrator. However, the SCSL, ECCC and ICC all emphasised the futility of escape as victims had nowhere to go and risked severe physical punishment and even death if they were caught. 83 Similarly, the courts stressed that victims were severely punished for refusing to get married or to consummate the marriage, for breaking the rules and disobedience. 84 This demonstrates that a lack of resistance, including attempts to escape, does not indicate consent of the victims to the marriage. Rather, it highlights that forced wives and forced husbands lived in highly coercive environments that deprived them of their liberty and autonomy. In addition to the absence of consent, it is those coercive circumstances that make a conflict-related forced marriage a 'real forced marriage'.

A Coercive Environment
As discussed above, the AFRC and RUF cases before the SCSL, Case 002 before the ECCC and the Al Hassan and Ongwen cases before the ICC suggest that an element of consent makes a conflict-related forced marriage a 'simple' rather than a 'real forced marriage'. They also stress that coercive circumstances vitiate consent. 85 Therefore, the existence of a coercive environment marks a conflict-related forced marriage as a 'real forced marriage'. Placing a focus on coercive circumstances surrounding a forced marriage has the potential to prevent an undue focus on the actions or inactions of the survivors and avoid inappropriate questioning and secondary victimisation. This highlights the importance of analysing the contextual dimension, the everyday constraints as well as the broader surrounding circumstances of a marriage. Crucially, this analysis has to go beyond an application of concepts like freedom and voluntariness that would return the focus to the survivor's state of mind, relative gains and escape routes. It is crucial to apply a broad understanding of coercive circumstances that cannot be reduced to a list of examples. An analysis of coercive circumstances must consider pre-existing as well as purposively created formal and informal power disparities that have a compelling effect on the victim and make the threat and use of force unnecessary. It also has to take into account the victim's perception of the perpetrator's power and how this impacts their ability to consent. Therefore, a broad understanding of coercive environments and circumstances better reflects the nature and impact of the acts of the perpetrator and has the potential to direct attention to their actions rather than those of the victim. The key question then becomes whether the victim could exercise their free choice and the perpetrator's awareness of and role in it. 86 This in turn would inform a better understanding of who a 'real victim' of a 'real forced marriage' is.
The SCSL, ECCC and ICC demonstrated a relatively broad understanding of coercion and acknowledged that it includes pre-existing as well as purposively created physical and non-physical elements. They recognised that a person can be coerced into a conflict-related forced marriage and into performing conjugal duties, for example, through threats and the use of physical or sexual violence against the victim or a third person, abduction, detention, enslavement, intimidation, duress, psychological oppression, the abuse of power and taking advantage of a coercive (conflict) environment. 87 Building on this, the courts' definitions of the crime of forced marriage moved towards the inclusion of a general element of coercion rather than a list of examples. 88 They recognised that 'forced marriage describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner'. 89 This definition indicates that, in the cases discussed above, the courts arguably took a perpetrator-centric approach 90 to the assessment of coercive circumstances by focusing on the actions of the accused and of those under their command, stressing that actual and perceived power disparities between victims and perpetrators made the threat and use of direct force unnecessary and impacted victims' ability to act autonomously. However, the courts did not consider the wider coercive context of a world shaped by deep, intersecting inequalities, circumventing discussions about race, class and sexuality, amongst others. 91 Arguably with the exception of Case 002, this led to, amongst others, a disregard of the fact that men as well as women live in coercive environments. Therefore, neither women nor men are free agents with a full capacity for action in this context. However, men have relative agency compared to women. Consequently, some men willingly participate in conflict-related forced marriages and freely select wives or have wives selected for them. 92 Some approach or pressure their superiors to give them a wife and can negotiate the choice of a wife. 93 Some men, however, strategically marry, for example to protect themselves and dispel rumours of actual or imagined adultery or impotence. Yet others are ordered to marry. 94 However, again with the exception of the ECCC, the courts did not question forced husbands' consent to marriage or the lack thereof and feminised conflict-related forced marriage. This indicates that they maintain a gendered victim-perpetrator dichotomy that is built on ideas of absolute freedoms. This again obscures the wider coercive circumstances and their impact on individuals and prevents consent and responsibility from being seen in a dynamic, active and relational sense. 95

Duration and Purpose
In addition to coercion and consent, the duration and purpose of a conflict-related forced marriage impact its classification as a 'real' or 'simple forced marriage'.
In Al Hassan, the temporary nature of forced marriages and their strategic and sexual purpose marks them as 'simple forced marriages' 96 as they were never meant to be sacrosanct unions 97 of two people that create lifelong mutual conjugal obligations. 98 However, this interpretation would ignore the longlasting stigmatisation that ex-forced wives experience as a consequence of even temporary forced marriages that were intended as a reward for fighters, a way for them to satisfy their sexual needs, to procreate and build a new society. 99 Mirroring the above-mentioned judicial interpretation of a relative benefit as a sign of consent, community members accused ex-forced wives of marrying members of Ansar Eddine and Al Qaeda in the Islamic Maghreb for financial gain, impacting their ability to consensually marry and start a family in the future. 100 This demonstrates that, comparable to forced marriages in Sierra Leone, Uganda and Cambodia, 101 even temporary forced marriages do not simply end when a couple divorces or separates but have complex, long-lasting consequences.
The ICC's discussions about the purpose of a conflict-related forced marriage in Al Hassan could be guided by the SCSL's deliberations in the AFRC case 102 and the submissions of the Defence in Ongwen. 103 Both suggest that a conflictrelated forced marriage primarily for the purpose of sex is not a 'real forced marriage' and possibly not a 'simple forced marriage' either but rather a form of sexual slavery. In the AFRC case, the SCSL Trial Chamber found that even though at first glance there was evidence that a forced marriage also consists of non-sexual elements, it was 'not satisfied that the evidence adduced by the Prosecution was capable of establishing [these] elements (…) of "forced marriage" independent of the crime of sexual slavery'. 104 Building on this, the Defence in Ongwen understood forced marriage and forced labour involving compulsory sexual activity to be encompassed by the crime of sexual slavery. 105 However, considering Justice Doherty's partly dissenting opinion in the AFRC case, 106 the RUF case 107 and the decision of Pre-Trial Chamber II on the confirmation of charges in Ongwen, 108 exclusivity, at least for the forced wife, would render the forced marriage 'not predominantly a sexual crime' 109 and therefore a 'real forced marriage'. Here, the fact that, in Sierra Leone and Uganda, forced husbands often had more than one wife and therefore forced marriages not being exclusive unions on their part, while arguably still not being predominantly sexual, does not appear to impact their classification as 'real forced marriages '. 110 to counter myths that women primarily experience conflicts as victims of sexual violence when they are targeted because of their broader gender roles that make them not only sexual beings but (domestic) workers and caretakers as well. 111 Importantly, this has to be done without enshrining patriarchal stereotypes into law. Arguable, the label of slavery or enslavement would achieve this and additionally avoid the use of the language and acceptance of the perspective of the perpetrators that legitimises the conduct, serving the wider women's rights agenda. However, it might also mask elements of sex and gender completely. 112

Conclusion
This article discussed the SCSL's, ECCC's and ICC's construction and reconstruction of the concepts of a 'real' and 'simple forced marriage'. An analysis of the AFRC, RUF, Case 002, Ongwen and Al Hassan cases suggests that indicators of a 'simple forced marriage' are: -familial or individual consent, possibly even if given once, reluctantly, under coercive circumstances and in exchange for a relative material or immaterial benefit; -a lack of resistance; -temporariness; -a predominantly sexual purpose.
Contrastingly, markers of a 'real forced marriage' are: -pre-existing and/or purposively created physical and non-physical coercion; -a lack of consent; -exclusivity of the forced wife; -a sexual and non-sexual purpose.
The courts' discussions of 'real' and 'simple forced marriages' generally indicate a focus on the words and conduct of the perpetrator. However, they built on and perpetuated biases and misconceptions related to the benign nature of tradition and familial consent, and the optionality of individual consent. This denies women agency and constructs them as passive victims. However, the courts allowed inquiries into survivors' lack of resistance and acceptance of relative benefits, tactically interpreting both as possible signs of agency and consequently consent. This in turn indicates an expectation that women have to, Stout (n 55) 23. and will, fight a violation of their rights, ignoring that they might also freeze or flop under highly coercive circumstances. 113 However, in neither situation does a lack of resistance amount to consent, nor does a relative gain excuse or justify the violation. As is indicated here, the courts maintained a clear and gendered victim-perpetrator dichotomy. In doing so, they neglected ideas of relational autonomy and personhood and wider coercive contexts that are shaped by deep and intersecting inequalities, complicating victim and perpetrator constructs. Drawing on the same gendered notions, the courts built on and perpetuated understandings of marriage as an exclusive, lifelong sacrosanct union between a man and a woman and took a traditional view on their respective conjugal duties. This incorporates patriarchal gender stereotypes into 'jurisprudence that (…) seeks to make gains for women' 114 and disregards alternative forms of marriage and conjugal duties.
These biases and misconceptions highlight elements that have to be taken into consideration when developing a definition of forced marriage for the purpose of International Criminal Law. A definition must recognise that forced marriage is a process rather than an act. As such, forced marriage includes both, coercing a person into a conjugal association without their consent as well as various acts of gendered physical, sexual and psychological violence that are perpetrated within that relationship. The element of consent has to be understood broadly to allow for a context sensitive interpretation and application. Similarly, the element of coercion must be interpreted to cover the wider coercive circumstances that continuously surround a forced marriage in addition to preexisting and purposively created physical and non-physical coercion. In this context, women and men have to be recognised as subjects and objects of forced marriage, as both victims and perpetrators. Following on from this and taking into account the different forms of forced marriage in different contexts, the acts of gendered physical, sexual and psychological violence perpetrated within a forced marriage have to be interpreted flexibly.