In Search of the Prototype of Forced Marriage

Abstract

This article discusses the categorization of the phenomenon of bush wives as forced marriage under the residual category of other inhumane acts in the Ongwen case. It reveals how judges at the International Criminal Court have used an Aristotelian Approach to characterization which entailed them to examine, on the basis of a jurisprudentially established checklist, whether the bush wives phenomenon shares the properties of the crime category of other inhumane acts. By discussing the forced marriage practices through an ‘other inhumane acts’ categorization, this article reveals the limits and pitfalls of the Aristotelian Approach. The main problem is that the Aristotelian Approach fails to grasp that categorization does not merely work on the basis of a checklist logic but also is a culturally determined process in which cultural prototypes need to be examined. This article’s main proposition is to consider an alternative way of categorization drawing from the philosophy of language and social sciences and suggests judges adopt a Prototype Approach. This approach enables judges to move away from a generic way of labelling different fact patterns through a checklist of properties and take on a more tailor-made and culturally sensitive approach that involves categorization through the discussion of the similarity and distinctiveness of a certain fact pattern to a prototype. In this way, judges can diversify interpretation of the other inhumane acts category in light of local practices as it requires a fresh decision of the facts by engaging with cultural practices in a more sensitive way and examining whether this phenomenon entails prototypical marriage practices. In this way, prototype theory opens new pathways in terms of how we label cultural practices and how we use the residual category of other inhumane acts.