Anu Sivaganesan

Western Wrangling with Forced Marriage: A Human Rights Violation and its Janus-faced Criminalisation

Since the 1990s, the Cold War has been replaced by a Culture War which has transformed the old Western fight against collectivist communist values into a new Western struggle against and/or wrangling with collectivist-minded migrants because of their – allegedly – controversial cultural practices. For the notion of culture, I refer to the international community, as expressed in a UNESCO declaration, defining culture “…to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs;” [1]

Marriage is certainly part of such an understanding of culture that includes tradition and beliefs. The way, certain migrant communities in Western countries deal with gender roles and marriage has become one of the sites of political dispute and legal intervention [2]. In the following, I shall focus on forced marriages as a core issue of contemporary cultural conflicts that dominate the political and legal agenda.

There is no doubt that forcing somebody into marriage violates the human right for every person to choose her or his partner. According to article 16 paragraph 2 of the Universal Declaration of Human Rights from 1948, a marriage must be entered with the free and full consent of the intending spouses. But it was not until the end of the 1990s, that states began to worry about new instruments for implementing and enforcing such general rights which they saw challenged by parts of an ever more growing migrant diaspora community. “Multicultural sensitivity is not an excuse for moral blindness” [3], declared the English MP Mike O’Brien in a debate on human rights in the House of Commons, echoing the general tone in the fight against forced marriage. In 2003, the Council of Europe issued a resolution on “So-called ‘honour crimes’” [4] and appealed to its member states that they should enforce legislation in order to persecute all crimes committed in the name of honour which emanate from cultural and not religious roots and are perpetrated worldwide [5]. Some European countries – such as Norway or Denmark – immediately picked up the claim and launched a cascade of legal action [6] to which other European countries [7] would adhere in the following years. The process which unfolded can be regarded as a due diligence-competition in the persecution and criminalization of forced marriage.

As an unintended part of this legal process, though, adverse reactions such as processes of social alienation and of othering can and do occur. When the Canadian authorities, for instance, named a piece of legislation “Zero Tolerance for Barbaric Cultural Practices Act [8]”, they highlighted profound cultural differences and a supposed incompatibility of those at whom the act aimed with cultural “Western norms”. The statistics of various countries coping with the phenomenon of forced marriage indicate a wide spread migration background of the large majority of those affected by forced marriage. In 2014, the UK Forced Marriage Unit, an intergovernmental joint organization in the United Kingdom, dealt with cases from 88 different countries, 54 percent of these cases reported a migration background from the South Asian region. For Switzerland, a survey conducted on behalf of the Federal Government identifies individuals from the Balkan states (i.e. former Jugoslavia), as well as persons with a Turkish and Sri Lankan migration background to constitute a majority among the victims of forced marriage.

Fostering human rights and amending the legislation should be handled sensitively without triggering xenophobia and by avoiding attitudes of a (white/Western moral and cultural) supremacy. At the same time, it would be disingenuous and unconducive to neglect the role culture does play in the ways communities and individuals perceive marriage and family life, how they establish and organize it. Therefore, culture plays a role in the legal and political debate on fighting against forced marriage. How should we deal with this contested notion of “culture”? How can we avoid an eurocentric or Western-centred perspective which monopolizes the power of definition and produces “othering” onto the “Non-Westerners” on the one hand, while on the on the other hand accept the reality of cultural elements in certain human rights violations?

When launching the Universal Declaration on Cultural Diversity in 2002, the Director- General of UNESCO, Koïchiro Matsuura, held: “The Declaration aims […] preserve cultural diversity as a living, and thus renewable treasure, that must not be perceived as being unchanging heritage but as a process guaranteeing the survival of humanity […]” [9]  Culture has to be perceived as a dynamic process that is connected with time and space and has to be compatible with human dignity. The ongoing PhD project on “Forced to marry: A human rights’ violation within its Euro-Asian entanglements. Unfree marriages from a multi-country perspective exemplified by Switzerland, Great Britain, the Netherlands, Pakistan, Sri Lanka and Turkey” analyses forced marriage practices from an intertwined/entangled perspective in both countries of origin and immigration countries. My contribution attempts to analyse the fight / legal measures against / prevention of forced marriages as an entangled phenomenon in the context of individual and family human rights. Whereas in Asia, fighting harmful traditional cultural practices in the context of a general policy of social improvement is at stake, the – legal and political – fight against forced marriages in Europe often risks exploiting these negative practices by linking them with restrictive immigration policies while discourses of othering unfortunately also play a role. Tackling with the phenomenon of forced marriage requires to broaden the analytic horizon beyond closed regional entities and to be integrate transregional or even global intersections. Migration is fluid, hybrid and polymorphic and therefore implementation of human rights can be a challenge as well a chance. Human rights are the same everywhere and for everybody, but different in how they are implemented.

1 UNESCO Mexico City Declaration on Cultural Policies, World Conference on Cultural Policies Mexico City, 26 July – 6 August 1982, available at: http://www.ifa.de/fileadmin/pdf/abk/inter/unesco_mondiacult.pdf

2 For example combatting female genital mutilation (FGM): measure against FGM in Switzerland, available at: http://www.bag.admin.ch/themen/gesundheitspolitik/07685/12512/13670/index.html?lang=de

3 Cf. Mike O’Brien, House of Commons Adjournment Debate on Human Rights (Women), 10 February 1999.

4 cf. resolution 1327 (2003), Parliamentary Assembly.

5 Cf. ziff. 4, resolution 1327 (2003).

6 To name a few: art. 222 (2) Norwegian Penal Code, art. 284 Dutch Penal Code, art. 260 Danish Penal Code.

7 Art. 181a Swiss Penal Code. Great Britain introduced the criminal provision in 2014. And half a month later, by July 1, 2014, the Swedish Penal Code was amended by the offence of forced and child marriage.

8 The Royal Assent to this law was given on 18.06.2015: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx? Language=E&Mode=1&Bill=S7&Parl=41&Ses=2&billId=6761928&View=0

9 Cf. Statement of Koïchiro Matsuura, available at: http://unesdoc.unesco.org/images/0012/001271/127162e.pdf 

 

 

 

 

 

 

 

 

 

 

9 Cf. Statement of Koïchiro Matsuura, available at: http://unesdoc.unesco.org/images/0012/001271/127162e.pdf

[accessed on 6.11.2015].