DEFINITION OF KEY TERMS

Child marriage

The UN Convention on the Rights of Child defines child as every human being below the age of 18 years
unless under the law applicable to the child majority is attained earlier.

Marriage

Is a social, cultural, and legal institution that typically signifies the union between two individuals who
commit to a lifelong partnership.

INTRODUCTION

The Rome Statute is a landmark treaty that established the International Criminal Court. Its history is
rooted in the international community’s efforts to create a permanent tribunal to prosecute individuals
for the most serious crimes, such as genocide, crimes against, humanity, war crimes and the crime of
aggression.The idea of an international criminal can date to late 19th century .The practice of child
marriage can be critically assessed as potential crime under Rome Statute on International Criminal
Court by examining its enlignment with the definition of crime within the ICC’S jurisdiction, particulary
crimes against humanity and war crimes. Child marriage, a practice that involves the union of minors
below the age of consent, often leads to severe violations of human rights, including sexual exploitation,
forced labor, and physical and emotional abuse. As international law continues to evolve in addressing
such issues, the Rome Statute of the International Criminal Court (ICC) offers a framework to potentially
classify child marriage as a crime. Through its provisions on crimes against humanity, war crimes, and
gender-based violence, the Rome Statute provides a lens for scrutinizing child marriage as not merely a
cultural or social issue but as a serious offense with devastating consequences for the victims. This essay
critically examines how the practice of child marriage aligns with the elements of crimes under the
Rome Statute, while also exploring the legal and social challenges to its classification and prosecution on
the international stage.

Jurisdiction of ICC over child marriage cases

Established by The Rome Statute in 2002 the ICC has jurisdiction over four core crimes, genocide, war
crimes against humanity, and the crimes that threaten international peace and security. Child marriage
violates multiple international legal instruments including the Convection on the Rights of Child which
emphasize the rights to education, health and freedom from abuse. It often results in sexual violence,
forced labor and exploitation, contributing to systemic abuse. The Rome Statute does not explicitly list
child marriage as a crime against humanity or war crimes. For instances when child marriage involves
sexual slavery, rape or forced pregnancy, it may qualify as a crime against humanity under article 7 of
war crimes. In conflict settings, child marriage may be prosecuted as a war crime, particularly when
children are used for sexual purposes as “wives” foe combatants. The ICC only investigates cases that
occur in Statutes Parties to the Rome Statutes or cases referred to it by the United Nations Security
Council. National jurisdictions hold primary responsibility for prosecuting crimes, the ICC acts as a court
of last resort. The practice challenges such as political will and cultural sensitivities surrounding child
marriages can hinder ICC intervention.

Article 7(1) (k) of the Rome Statute defines crimes against humanity as acts committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge of the attack.
These acts include murder, enslavement, deportation, torture, rape, sexual slavery, and other inhumane
acts causing great suffering or serious injury to mental or physical health. In the case of Extra Ordinary
Chambers of Cambodia the court argues that ICC which brought about the Rome Statute was created to
ensure that people are protected against any form of unimaginable atrocities.Child marriage, when
examined through this lens, can be interpreted as a form of “enslavement”, as it often involves the
exercise of ownership-like control over minors, depriving them of autonomy and subjecting them to
coercion and exploitation. The systematic nature of child marriage in certain regions, where it is
perpetuated by cultural, social, or economic pressures, aligns with the criteria of a widespread attack
against a civilian population. This makes it a potential candidate for classification as a crime against
humanity under the Rome Statutes.

CASE LAW

A notable case related to child marriage addressed by ICC is the Prosecutor v Dominic Ongwen .
Ongwen, a former commander of the Lord’s Resistance Army in Uganda was convicted in 2021 for
crimes against humanity and war crimes, including forced marriage as an autonomous crime against
humanity, emphasizing the imposition of marital duties on victims without their consent, leading to
severe physical and social norm. This case set a significant precedent in International Criminal law by
explicitly acknowledging forced marriage as a distinct crime, rather than subsuming it under other
offenses like sexual slavery. Accordingly the harm suffered from forced marriage can consist of being
ostracized from community, mental trauma, the serious attack on the victim’s dignity and deprivation of
the v victim’s fundamental rights to choose his or her spray. For the first time the ICC therefore
expressly recognizes that imposing marriage against the will of the spouse constitutes per se a conduct
amounting to international crime

The ICC has recognized forced marriage as a crime against humanity under Article 7(1)(k) of the Rome
Statute, which addresses "other inhumane acts." This recognition provides a legal framework to
prosecute cases where child marriage involves coercion and abuse. In the case supra, the court
discussed issue to do with forced marriage. It was argued that a conduct such as forced marriage should
meet two requirements to fall under the category of other inhumane acts. First, it should inflict great
suffering or serious injury to body or to mental or physical healthy. Forced marriage should be seen as a
gender based crime because it contains both sexual and non-sexual elements. Forced marriage is an
enslavement laundering process to conceal the illegality of imposition of marriage and to show that
enslavement is clean.

CHALLENGES FACED IN PROSECTUTING CHILD MARRIAGE UNDER ROME STATUTES

The ICC’s jurisdiction is limited to crimes committed within the territories of State Parties or by their
nationals, unless referred by the United Nations Security Council as per article 12. Child marriage often
deeply rooted in cultural and religious practices, is not explicitly listed as a crime under Rome statutes.
Child marriage often defended under the guise of cultural or religious tradition. This creates resistant to
international intervention and complicates the ICC’S ability to prosecute such cases without infringing
on state sovereignty. However the Southern Africa Development Community (SADC) Model law on
Eradicating Child Marriage emphasizes the need for harmonizing international and local laws. Major
powers like United States, China and Russia have not ratified the Rome Statute limiting the global reach.
This lack of universal jurisdiction hinders the ICC’s ability to address child marriage in non-State Parties.

Dependence on State Cooperation

The ICC relies on state parties to enforce its decisions and provide evidence. In cases of child marriage,
states may be unwillingly unable to cooperate due to political, social, or logistical changes. To bridge this
gap the international community must advocate for amendments to the Rome Statute, recognizing child
marriage as a crime against humanity. Additionaly, harmonizing international and domestic laws and
fostering cultural sensitivity are essential steps toward eradicating this practice

Actions being taken to prevent child marriage

The ICC does not specifically address child marriage does not specifically address child marriage as a
crime under its jurisdiction. However, various international and regional instruments and organizations
work to prevent child marriage and protect children’s rights, such as the Convention on the Rights of the
Child which was adopted by the United Nations in 1989, African Charter on the Rights and Welfare of
the Child, Southern Africa Development Community Model law on Eradicating Children marriage and
National Legislation. Many countries have enacted laws to prevent child marriage and protect children’s
rights. For example Uganda, the constitution sets the minimum age of marriage at 18 and requires free
and informed consent for both parties, Kenya , the Marriage Act of 2014 outlaws forced and underage
marriage and Malawi, the marriage, divorce and Family Relations Bill of 2015 raises the minimum age to
18. These efforts collectively contribute to prevention of child marriage and the protection of children ‘s
right on international, religion and national level.