Missing: Judicial Emphasis on the Human Rights of Girls Violated by International Crimes

Published in the May 2021 edition of Oxford’s Journal of International Criminal Justice, Visiting Professor Kathleen Maloney’s article, “Ending Impunity for Forced Marriage in Conflict Zones: The Need for Greater Judicial Emphasis on the Human Rights of Girls” highlights the need for a more comprehensive focus in prosecuting atrocities and war crimes committed against female children around the world.

“Countless women and girls have been abducted, raped, forcibly assigned as ‘wives’ to combatants and held captive within such forced marriages in conflict zones around the world,” writes Maloney. Yet, she adds, “forced marriage as an international crime remains controversial because it (i) is not codified in any international criminal statute, (ii) involves conduct overlapping with already-enumerated crimes against humanity, and (iii) is inconsistently defined.”

Her article argues that, regardless of whether forced marriage is prosecuted as an ‘other inhumane act’ or slavery-related crime against humanity, in order to advance justice for girls in conflict zones and end impunity for these atrocities, greater judicial emphasis on the constellation of internationally recognized fundamental human rights of children violated by forced marriage is needed.

Although the International Criminal Court (ICC) has prosecuted and convicted perpetrators of the crime of recruiting and using child soldiers, sentencing and reparations decisions have focused on male victims “actively participating in hostilities.” Female child soldiers forced into sexual and conjugal labor, upon which combatants rely in conducting hostilities, have been largely excluded from reparations awards. Women and girls have been similarly excluded from post-conflict Disarmament, Demoblization, and Reintegration (DDR) programs aimed at supporting ex-combatants.

“Girls are not afforded necessary resources or reintegration after conflicts,” Maloney says. “The international criminal justice system is overlooking the most-harmed victims of these crimes.”

Female children who are abducted and enslaved—some as early as age seven—and suffer sexual and other violence, forced pregnancies, childbirth, and child-rearing, have yet to receive reparations for themselves or their children. “These are severe, unique, and multi-faceted harms,” Maloney states.

“For tribunals to treat the human rights violations in forced marriages as any less serious than those involved in other international crimes is unconscionable,” she adds. For example, the right to private property was identified as fundamental by trial judges in the ICC’s first forced marriage case, while the only fundamental human right they found forced marriage violated was the “right to enter a marriage with the full and free consent of another person.” Maloney asserts that for girls enslaved in violent conjugal captivity for years, deprivation of the right to choose one’s spouse is hardly the sole fundamental human right deserving condemnation.

In publishing her article, she hopes to raise awareness of how and where girls and women slip through the cracks of international criminal and human rights laws, and spur action.

Professor Maloney is clear on how to begin: “Pressure on tribunals, councils, and prosecuting bodies to hold accountable, and sentence perpetrators appropriately, is critical. As is recognizing the right of female children to reparations.” She also focuses on holding nation-states accountable for obligations assumed through treaties requiring them to protect individuals from gender- and sexual-based violence.

In working with her students at Lewis & Clark Law School, Professor Maloney discusses how the United States’ failure to ratify the Convention on the Rights of the Child signals a view that children’s rights are less important, and involve a lesser need for enforcement, to the international community. (As of November 2021, the US is the only member of the United Nations who is not a party to the Convention; 196 other nation-states are parties, and 140 of those are signatories.)

“The students are curious, eager. They are interested in the world at large, and in being more dedicated to pushing for solutions to big problems.” Maloney commented. “I love seeing that spark turn to a passion.” She currently teaches International Human Rights, International Criminal Law, Human Trafficking, and Public International Law, building awareness and educating students on the larger issues facing our world.

And after a decade of teaching classes at Lewis & Clark Law, she continues to find her own passion in the work. “I still have those dream classes I’d love to offer… on the international rights of women, children, Indigenous populations, international humanitarian law, and transitional justice…big topics from which to examine intersecting issues.” Professor Maloney concluded.