Trafficking in Persons – the Forgotten International Crime? – Part II

[Paul Bradfield is a Research Associate on human trafficking, forced migration and gender equality in Uganda at the Irish Centre for Human Rights, NUI Galway. This is the second part of a two-part series. Part I can be found here.]

Pushing the Envelope – Prosecuting Trafficking as an “International Crime” in Uganda

As highlighted in Part I, the crime of trafficking in persons as a serious crime of international concern remains under-utilized and under-charged, at least within the Rome Statute framework and existing international caselaw. However, in the era of universal jurisdiction and positive complementarity, states are encouraged to domestically investigate and prosecute crimes that have international character, or that would otherwise attract the jurisdiction of international courts. In this respect, states are increasingly passing legislation to permit the prosecution of international crimes in domestic settings, including by setting up specialized tribunals or court divisions with the existing judicial structure of a state. A recent notable example is the Special Criminal Court in the Central African Republic, set up to prosecute crimes in the aftermath of its recent civil war.

In 2011, the International Crimes Division (“ICD”) of the Ugandan High Court was created to prosecute serious crimes, namely war crimes, crimes against humanity and genocide. Notably, specifically included within its internationalized jurisdiction are the crimes of terrorism and human trafficking. In its first decade, the ICD has heard a significant number of trials, including complex terrorism cases. However, it has yet to complete its first dedicated war crimes trial, with the case against former Lord’s Resistance Army (“LRA”) commander, Thomas Kwoyelo, held up for years over the issue of amnesty and slow trial proceedings. With regard to trafficking, the domestic offence of trafficking in persons was codified in thePrevention of Trafficking in Persons Act 2009, and may also be captured within the related offences of kidnapping, abduction and slavery under thePenal Code Act 1950. While there have been prosecutions of trafficking offences in the regular High Court, there is only one officially reported conviction of trafficking occurring in the ICD – the 2014 case of Uganda v Umutoni. In that case, the accused was convicted of child trafficking offences under the 2009 Act, but the judgement does not explain why the ICD exercised jurisdiction over this particular case, as opposed to the regular High Court. On the facts, the transnational nature of the trafficking at issue (from Rwanda to Uganda) was the likely reason for the ICD being the chosen forum to try the case. But, the offence was still domestic in nature, and it was not internationally characterized.

There exists a further avenue for trafficking to be prosecuted as an international crime in Uganda and the ICD. In 2010, parliament passed the International Criminal Court Act (“ICC Act”) which domesticated the Rome Statute and enables the prosecution of war crimes, crimes against humanity and genocide in Ugandan courts, with sections 8-9 of the Act allowing for war crimes and crimes against humanity to be prosecuted and a sentence of up to life imprisonment upon conviction. As explained in Part I, the crimes against humanity of enslavement, and the war crime of sexual slavery, expressly encompasses conduct that amounts to trafficking in persons. Provided that both the elements of the crime, and the broader contextual elements are present, then such crimes could be prosecuted in the ICD so as to fully reflect the international criminal nature of trafficking in persons. To demonstrate this possibility, let us look at two potential scenarios.

• Refugee Populations: Uganda currently has among the largest refugee populations in the world, with over 1 million refugees living in settlements in the north west of the country. Most of these refugees are fleeing recurring armed conflict in the DRC and civil war in South Sudan. These refugee populations are particularly vulnerable to trafficking, exploitation and conflict-related sexual violence (suffered by both men and women). Should any of these be trafficked within (or indeed, outside of) Uganda, it is argued that such conduct may be classified as either the crime against humanity of enslavement and/or the war crime of sexual slavery. The argument runs as follows: The basic elements of the crime being identified and fulfilled (i.e. the exercise of ownership and/or deprivation of liberty), the contextual elements would also need to be present as as well as the nexus requirement: namely that the conduct was “associated” with an armed conflict (for war crimes) or that the crime was committed “as part of” a widespread or systematic attack on the civilian population (for crimes against humanity). That such a conflict or attack might occur in a neighboring state would not necessarily deprive the state of Uganda of criminal jurisdiction. The jurisdictional rulings in the Situations in Afghanistan (confirming jurisdiction over crimes occurring in a separate state from where the armed conflict actually occurred) and Myanmar/Bangladesh (confirming jurisdiction where at least one element of a crime occurs in a state party) would support such an interpretation.
  
  Moreover, section 18 of the ICC Act grants jurisdiction over offences committed outside of Ugandan territory where the victim or perpetrator is Ugandan, or whether the perpetrator is present in the state. The last hurdle would be intent – depending on which crime is invoked, the perpetrator needs to be aware the conduct was “part of” an attack or “associated” with an armed conflict. However, while this might seem difficult to prove, awareness on the part of the perpetrator that they were knowingly trafficking a refugee that was fleeing conflict, or an attack, would arguably satisfy this element. Indeed, the Elements of Crimes appears to set the bar low in this regard, stating that this mental element “should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization.”

• Conflict Legacy Trafficking: This second scenario is less straightforward, but in the author’s view, is legally tenable. In the course of the prolonged conflict between the LRA and the Ugandan armed forces, hundreds of thousands of civilians were displaced into IDP camps. While these were mostly disbanded by 2008, many people were unable to move back to their home villages, with disputes over land ownership and boundaries becoming a primary conflict driver across northern Uganda. This has resulted in widespread forced migration of young people now deprived of access to land. Consequently, it is arguable that where a person has been previously displaced or victimized as a result of the conflict between the LRA and the government, and has latterly been trafficked for exploitative purposes such as labour or sexual exploitation, then the international crimes of enslavement and/or sexual slavery has occurred.

For example, take a female LRA abductee who has recently returned home and is preyed upon by a trafficker, brought to the capital and forced into prostitution. Or a young man who has been displaced since 2008, unable to access his family land as a direct result of the conflict and is trafficked into informal labour from which he cannot break free. In both instances, there is a factual and causative nexus to the armed conflict and/or an attack. Their victimization flows from it. And, if the perpetrator who later traffics them is aware of their status, then (international) criminal responsibility should also follow.

A timely and reasonable “nexus”?

Many will no doubt argue that the passage of time is simply too much to establish a credible nexus to the armed conflict or attack, as required. Two points can be made in reply. First, as described in Part 1, the OTP is currently investigating migrant-related crimes (including trafficking) in Libya almost 10 years after the armed conflict began – a similar time frame to the last example. Secondly, an important piece of ICC jurisprudence went quietly unnoticed in 2016. In the Ongwen case, young girls and women were abducted by the accused in Uganda, sexually enslaved, and later brought to the DRC where their victimization continued for a number of years afterwards. However, the Prosecutor charged only the conduct in Uganda, not the conduct that occurred in the DRC, because it considered the latter to “post-date the upper limit of the charged period, 31 December 2005, which was selected because the evidence does not support the existence of a non-international armed conflict between the UPDF and the LRA or a widespread and systematic attack against a civilian population after that date.” (Ongwen Confirmation Decision, para. 105) However, the Pre-Trial Chamber admonished the Prosecution for this conservative approach, deeming it to be “manifestly incorrect”, and stated that:

“[c]rimes against humanity must be committed “as part of” a widespread and systematic attack directed against any civilian population, and war crimes “in the context of” and “associated with” an armed conflict. It is not required that the crimes against humanity are committed during the attack, or war crimes in the midst of the armed conflict, as the required nexus can be established otherwise. This is true irrespective of whether the crimes at issue are continuous crimes or not. In this sense, the Prosecutor’s choice of the cut-off date of 31 December 2005 cannot be attributed to the operation of the nexus requirements of articles 7 and 8 of the Statute or any other provision of the Statute or the Rules.” (Ongwen Confirmation Decision, para. 107)

This jurisprudence offers support for the position advanced above, i.e., that present-day trafficking of victims of the conflict between the LRA and the government could amount to the international crimes of enslavement and/or sexual slavery.

Conclusion

Trafficking in persons remains a serious crime of international concern. It is so serious that, depending on the context, it can be classified as a war crime or crime against humanity in the form of enslavement or sexual slavery. While policy and lawmakers are increasing efforts to draw attention to the crime, and to advocate for appropriate accountability and protection responses, its prosecution as an international crime – as provided for in the Rome Statute – remains absent both at the ICC and in domestic settings. States like Uganda and others, that have domesticated the Rome Statute, can lead the way in this regard, to push the envelope and fully capture the international criminal nature of trafficking in persons. If they do, national courts would actually prosecute trafficking as an international crime before the ICC does. That would be positive complementarity in its truest form.