Trafficking in Persons – the Forgotten International Crime? – Part 1

[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 first part of a two-part series.]

Introduction

Next month on 15 November 2020, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“Palermo Protocol”) turns 20 years old. With this landmark anniversary approaching, this post seeks to recall that trafficking in persons remains a serious crime of international concern. It is so serious that the drafters of the Rome Statute deemed it necessary to expressly state that trafficking can amount an international crime, in the form of enslavement as a crime against humanity, and/or sexual slavery as a war crime. Despite this codification, trafficking in persons has to date received little attention before international criminal fora. While it is regularly prosecuted at the domestic level, it has yet to be specifically pleaded before an international court.

This post is split into two parts. In Part I, the link between armed conflict and trafficking is highlighted, as well as recent investigative developments at the International Criminal Court (“ICC”). The legal basis for classifying trafficking in persons as an international crime is also explained. In Part II, it will be argued there are innovative ways available to prosecute trafficking in persons domestically, to fully reflect its impact on victims and society, and to ensure accountability for its commission. To demonstrate this, the example of Uganda is used to show how domestic structures can be utilised to prosecute trafficking as an international crime.

Armed Conflict and Trafficking

The link between armed conflict and trafficking in persons has been underscored by the U.N. Special Rapporteur on trafficking in persons, especially women and children. In a 2018 report, it was noted that trafficking is extremely common in the midst of armed conflict, and that “the general breakdown of the rule of law and political, economic and social structures, including community protection systems, higher levels of violence and increased militarism, as well as the lack of access to safe and legal migratory routes, foster conditions in which trafficking flourishes, including after hostilities have ceased.” The President of the U.N.S.C. has also noted how trafficking is linked to other forms of exploitation, such as sexual violence and forced criminality. As to the international criminal nature of trafficking in persons, the U.N.S.C. has underscored that “acts or offences associated with trafficking in persons in the context of armed conflict may constitute war crimes”, condemning in particular “trafficking in persons and violations and other abuses committed by Boko Haram, Al-Shabaab, the Lord’s Resistance Army, and other terrorist or armed groups for the purpose of sexual slavery, sexual exploitation, and forced labour.” The U.N.S.C. has also highlighted the vulnerability of children and unaccompanied minors to abduction and trafficking during armed conflict, calling on states to hold perpetrators accountable for violations of international law. In this regard, a report on trafficking in persons in armed conflict by the U.N. Secretary General in 2018 referred to the establishment of the Special Investigative Team to support accountability for crimes committed by ISIL (UNITAD). Its latest report from May confirms that human trafficking networks are currently being investigated by the body. Yet, despite the adoption of the Global Plan of Action to Combat Trafficking in Persons in 2010, which calls on states to ensure the liability of all categories of perpetrators of trafficking in persons “in line with relevant international instruments”, the prosecution of trafficking as an international (as opposed to domestic or transnational) crime has not been actively considered by most prosecuting authorities. 

Trafficking and Enslavement – Intertwined International Crimes

In the context of an attack on the civilian population, or an armed conflict, the Rome Statute expressly permits and foresees the prosecution of trafficking in persons. The Statute itself does not define every crime, but article 7(2)(c) does states that “[E]nslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” In the Elements of Crimes, where every crime is comprehensively defined, the crime against humanity of enslavement (article 7(1)(c)) is stated to comprise the following three elements:

1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Footnoted to paragraph 1 is the following:

“It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.” (emphasis added)

The same explanatory footnote is appended to the elements of the crimes of sexual slavery as a crime against humanity (article 7(1)(g)-2), and sexual slavery as a war crime both in international armed conflict (article 8(2)(b)(xxii)-2), and non-international armed conflict (article 8(2)(e)(vi)-2). However, in cases that have seen charges of enslavement and sexual slavery to date, while (according to the elements of crimes) the conduct technically amounted to trafficking in persons for the purposes of military and sexual exploitation, it was not framed as trafficking at trial. Rather, it was framed simply as enslavement and sexual slavery. For example, in Katanga a number of women were held captive and sexually exploited following a rebel attack. This conduct was determined by the Chamber to amount to sexual slavery, but the accused was held not to be responsible for these particular crimes. In Ntaganda, the accused’s subordinates sexually enslaved both civilians and female members of his own armed group, an important judicial precedent. While in Ongwen, the accused is alleged to have conscripted and used children under the age of 15 in hostilities, enslaved civilians temporarily to carry pillaged goods, and sexually enslaved women and girls.

The distinction between enslavement and human trafficking is not readily apparent in law – at least in the Rome Statute or the Palermo Protocol. They are considered one and the same. For example, where a child is used to carry pillaged goods after an attack, the prosecutorial instinct may be to simply frame this conduct as enslavement. Yet the Palermo Protocol also states that the mere “recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons” as well. Why is this framing important? Where evidence indicates that criminal conduct occurs, that conduct should be accurately characterized and accounted for. The characterization reflects the true nature and gravity of the crime, the harm incurred, and the impact on the victim.

Perhaps the lack of focus on trafficking is because it is thought to typically require a commercial aspect, for example the coercive exploitation of vulnerable women for prostitution. But, as the Elements of Crimes and Palermo Protocol make clear, no such monetary requirement is necessary for the offence to catalyze. Early ICTY jurisprudence also confirms this, with the Kunarac Trial Chamber stating that the he “acquisition” or “disposal” of someone for monetary or other compensation is not a requirement for enslavement (para. 542).

There are indications that trafficking in persons may soon become a prosecutorial priority at the ICC. In the Situation in Libya, the Prosecutor has stated that she continues to investigate migrant-related crimes. In her 2017 report to the U.N.S.C., the Prosecutor stated that Libya was a “marketplace for the trafficking of human beings.” In her latest report to the U.N.S.C in May of this year, the Prosecutor stated that the Office of the Prosecutor (“OTP”) has collected evidence that migrants and refugees are “routinely subjected to arbitrary detention, unlawful killing, enforced disappearance, torture, sexual and gender-based violence, abduction for ransom, extortion, and forced labour.” The OTP continues to assess whether “the necessary evidentiary and legal requirements are satisfied with a view to potentially bringing a case before the ICC.” Trafficking in persons and their arbitrary detention has been widely documented in Libya, for example by the US State Department, Human Rights Watch, and the U.N. Panel of Experts on Libya. It remains to be seen if these investigative efforts will lead to concrete charges in the form of an arrest warrant.

Yet, trafficking in persons may be more readily prosecuted as an international crime domestically, in states that have the legal machinery to do so. One such state is Uganda – a state that has been to the forefront of complementarity initiatives. It has domesticated the Rome Statute and created a specialized International Crimes Division of the High Court. As explained further in Part II, it is argued that trafficking in persons – as the internationally labelled crime of enslavement – can and should be prosecuted in Ugandan courts using existing judicial structures. Part II theorizes how those same structures might be utilized to prosecute human trafficking cases, particularly those which may be the result of armed conflict.