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Human Trafficking: A crime against humanity under the ICC?

Firouzeh Mitchell, a 4th Year LLB student, examines whether human trafficking is a crime under the ICC.

 

Human trafficking represents the world’s fastest-growing criminal industry, accumulating an estimated annual revenue of up to US$32 billion.[1] Since the 1990s people have become increasingly aware of the true scale of what has been referred to as ‘a modern form of slavery.’[2] Legislative attempts have been made by both national and transnational bodies to tackle this growing crime. The United Nations Convention against Transnational Organised Crime, and its subsequent protocols, marked a huge development in the fight against human trafficking. However, despite an increasing number of convictions, it is becoming apparent that States are failing to keep up with the scale of the problem. As a result, demand has been made for human trafficking to be placed under the jurisdiction of the International Criminal Court, by being officially recognised as a crime against humanity.

 

The Human Trafficking Protocol was successful in providing an internationally agreed definition of the crime. Under this Protocol, ‘trafficking in persons’ is the ‘recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[3] The definition can be broken down into three elements: an action, a particular means, and for the purpose of exploitation.

 

Article 7(1) of the Rome Statute identifies a number of acts that when ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ constitute a crime against humanity. The definition can be broken down into five elements.[4] Firstly, one of the acts identified in Article 7(1)(a)-(k) must have been committed. Secondly, the acts must be widespread or systematic. Thirdly, it must constitute an attack against a civilian population. Fourthly, it must be pursuant to or in furtherance of a State or organisational policy. Finally, the perpetrator must have intended to commit such an attack. In order for human trafficking to be considered a crime against humanity under the Rome Statute it must satisfy these conditions.

 

Currently, human trafficking is only afforded protection  under domestic law. Human trafficking as a transnational crime, prior to the enactment of the Human Trafficking Protocol, was primarily found in the Slavery Convention of 1926 and the Supplementary Convention on the Abolition of Slavery enacted in 1956. However, these were found to be largely ineffective in combating trafficking due to the requirement for the trading to be carried out with ‘an intent to reduce persons to slavery.’[5] As clearly established by the Human Trafficking Protocol, the intention behind trafficking is exploitation and not ownership. The Protocol aims to prevent and combat trafficking, protect and assist victims of such trafficking and to promote cooperation between States to achieve these aims.[6] Most importantly, the Protocol requires States to criminalise human trafficking in their domestic legal systems when it is committed intentionally.[7] Furthermore, attempting to commit, participating as an accomplice, and organising or directing other persons to commit human trafficking are also required to be criminalised.[8]

 

However, in practice measures to combat trafficking by prosecuting those taking part in trafficking has been ineffective. In 2006, there were only 5808 prosecutions and 3160 convictions throughout the world, meaning that for every 800 people trafficked, only one person was convicted.[9] The low conviction rate for human trafficking can in part be explained by the nature of transnational law.[10] Transnational criminal law relies on States to implement national laws in order to criminalise a particular action. By contrast, international criminal law derives from international custom and can place obligations on individuals regardless of national laws. In this regard, the absence of anti-trafficking legislation in some States poses an obvious barrier.[11] This reliance on State action is a major disadvantage of transnational over international protection. Thus there is a pressing need for human trafficking to be considered an international crime.

 

Many crimes that are committed as a result of trafficking, when committed as part of a widespread and systematic attack against a civilian population, can be considered as crimes against humanity. The most prevalent types of human trafficking are thought to be trafficking for sexual exploitation, trafficking for forced labour and trafficking in organs.[12] First and foremost, it is widely acknowledged that human trafficking occurs across borders as well as within States, in order to move the individual to the place of demand. In this regard, Article 7(1)(d) states that the deportation or forcible transfer of population is a crime against humanity. This is defined as the ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present.’[13] It is further provided in the Elements of Crimes that the term ‘forcibly’ is ‘not restricted to physical force, but may include threat of force or coercion.’[14] In many cases, traffickers use violence, threats, deception and coercion in order to trap individuals.[15] The Rome Statute further provides that ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity’ are also regarded as crimes against humanity.[16] This is characteristic of human trafficking, where 79 percent of trafficking is sexual exploitation.[17] Finally, the degrading nature of the acts associated with human trafficking clearly fall under the category of ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’[18] In particular, the trafficking of organs will fall under this category.

           

In order for human trafficking, as a crime in itself, be considered a crime against humanity it first must fall under one of the acts listed in Article 7(1)(a)-(k) of the Rome Statute. It can be argued that the resulting effect of many of the acts associated with human trafficking reduce the individuals to a form of property over which unlimited power is exercised by the traffickers.[19] In this regard, this ‘modern day slavery’ can be considered as ‘enslavement’ under Article 7(1)(c) of the Rome Statute. Enslavement is defined as ‘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.’[20] It is further required in the Elements of Crime that the ‘perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons.’[21]  It is noted in Footnote 11 to this article that ‘the conduct described in this element includes trafficking in persons, in particular women and children.’ Thus, the enslavement provision is extended beyond the traditional concept of slavery. It would seem apparent that human trafficking already falls within the ambit of the International Criminal Court.

 

On the other side of the debate, it has been argued that it is incorrect to term human trafficking as a form of slavery.[22] The Human Trafficking Protocol carefully distinguishes itself from the previous Slavery Conventions by ensuring that the intention required was one of exploitation and not of ownership. The traffickers usually use their victims in order to either exploit them sexually or for their labour. This can be distinguished from slavery where the objective is complete ownership over the whole individual and not just exploitation of certain services.[23] However, the International Criminal Tribunal for the Former Yugoslavia held in Kunarac et al that enslavement may occur even when the victims still enjoy a certain freedom of movement, but the situation in which they find themselves leaves them with no real choice of escape.[24] In many cases, the victims of trafficking are placed in situations where they end up totally reliant on those that have trafficked them. This may be due to their passports being taken away, a lack of money or a general lack of means to get themselves out of the situations they have been placed in. For these reasons, it is argued that human trafficking clearly falls within the definition of enslavement.

 

Secondly, in order for human trafficking to be considered a crime against humanity, it must have been ‘widespread or systematic’ in nature. With regard to the ‘widespread’ nature of the attack it has been held that it ‘connoted the large-scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims.’[25] In terms of ‘systematic’ the necessary factor is that the acts are of an organised nature.[26] It is important to note that the requirements are disjunctive, it is not necessary for the act to be both widespread and systematic.[27] It is clear from the fact that human trafficking is the fastest-growing organised crime that it is systematic in nature. Human trafficking has evolved into a business, which involves the ‘methodical identification, recruitment, manipulation, coercion, monitoring, and exploitation of trafficked persons to obtain ownership’.[28] Human trafficking is also thought to be widespread in the sense that it affects every region in the world. However, in terms of the individual acts it will be more difficult to prove that they are large-scale, since many trafficking groups are small. However, in order for human trafficking to thrive as a business it requires the trafficking of multiple victims which may be classed as widespread.

 

Next, the act must constitute an attack and be directed towards a civilian population. The attack need not constitute a military attack but instead refers to a campaign or operation carried out against the civilian population.[29] Article 7(2)(a) further provides that an attack must involve the multiple commission of acts referred to in Article 7(1). The civilian population must also be the primary object of the attack.[30] Population is defined broadly, requiring only that the attack is directed against more than a limited and randomly selected group of individuals.[31] Due to the widespread nature of trafficking, where organised traffickers target many individuals at once, it is clear that it can be considered as being committed multiple times and not just as a one-off occurrence. Additionally, the victims of trafficking are exploited numerous times, such as being repeatedly sexually exploited.

 

The attack must also must also be ‘pursuant to or in furtherance of a State or organisational policy.’ Whilst the definition of a State is self evident, an organisation is deemed to be any that is able to commit a widespread or systematic attack against a civilian population.[32] With regard to the policy, it is not necessary for it to be formalised as long as the attack is planned, directed or organised, rather than being random occurrences.[33] Since human trafficking has developed as a serious form of organised crime, it becomes evident that this requires a great deal of planning and organisation on the part of the traffickers. Human trafficking has gradually moved from being a few sporadic acts to a fully working business, accumulating billions of pounds. Therefore, whilst traffickers may not have a formalised policy, it is clear that there must be some form of coordination between the traffickers. This may be seen, for example, through the relationship between those who transport the victims and those who physically exploit the individuals.

 

Finally, the Rome Statute requires a mental element. The perpetrator must have intended his conduct to result in one of the acts indicated in Article 7. However, it is not necessary to prove that the perpetrator had knowledge of all characteristics of the attack or the precise details of the state or organisational policy.[34] Those who organise the trafficking clearly have knowledge of the eventual exploitation. The difficulty arises when trying to identify the knowledge of those who take part in the trafficking but in a less direct way.

 

It is also important to note that the International Criminal Court was intended to deal with only the ‘most serious crimes of concern to the international community as a whole.’[35] For this reason, Article 17(1)(d) of the Rome Statute states that a case will be inadmissible if it is not of sufficient gravity to justify further action by the Court. This can be determined with reference to two features. Firstly, ‘the conduct which is the subject of a case must be either systematic or large-scale.’[36] This condition ensures that the acts are not one-off but represent a larger problem. Secondly, the assessment of gravity must give due consideration ‘to the social alarm such conduct may have caused in the international community.’[37] With regard to the first condition, as already identified human trafficking is widespread in nature. Due to human trafficking emerging as a growing industry it is clear that it is being committed on a large-scale, affecting millions and also affecting every region in the world. The second criteria can also be satisfied. Since the 1990s the world has realised the true gravity of human trafficking and the deteriorating effects it has. As already noted, States have attempted to tackle the growing problem through transnational efforts. Additionally, it is clear from the increasing calls for human trafficking to be considered a crime against humanity that it is clearly causing great concern to the international community. For these reasons, it is submitted that the gravity threshold has been met. As a result, it would appear that human trafficking fulfils the definition of a crime against humanity.

 

Human trafficking results in its victims being subjected to some of the most degrading and inhumane treatment. As can be seen from the fact that various acts related to trafficking can undoubtedly fall under the definition of crime against humanity, it is clear that the crime as a whole should be properly regarded as a very serious crime. Whilst the precise definition of human trafficking under the ICC is absent, it is submitted that the approach taken by the Human Trafficking Protocol should be adopted. As a result, it can be seen to be a form of ‘enslavement’ under Article 7 of the Rome Statute. Whilst the crime should not be confused with slavery, it shares many characteristics and thus can be properly regarded as a form of ‘modern day slavery’. In the face of the increasing number of trafficking victims and the low prosecution rates for traffickers, it is becoming apparent that current measures to combat the crime have proven to be inadequate. By properly regarding human trafficking as an international crime, traffickers may be held individually criminally responsible regardless of whether it is nationally criminalised. Furthermore, by putting human trafficking on par with the other international crimes, such as genocide, it encourages States to put more resources into combating the crime. Finally, whilst each individual case may vary, it is submitted that in the correct circumstances human trafficking can be seen as a widespread or systematic attack directed against any civilian population where the perpetrator has knowledge of the attack.

 

[1] International Labour Office, (2008). ILO Action Against Trafficking in Human Beings. Geneva: ILO, p.1.

[2] United Nations Office on Drugs and Crime, (2009). Global Report on Trafficking in Persons. UNODC, p.6.

[3] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime, Article 3(a).

[4] Situation in the Republic of Kenya. ICC-01/09-19. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 79.

[5] 1926 Convention, Article 1(2); 1956 Convention, Article 7(c).

[6] Human Trafficking Protocol, Article 2.

[7] Ibid., Article 5(1).

[8] Ibid.,Article 5(2)(a)-(c).

[9] United States of America Department of State, (2007). Trafficking in Persons Report. U.S. Department of State, p.36.

[10] Boister, N. (2012). An introduction to transnational criminal law. Oxford (Royaume-Uni): Oxford University Press, p.18.

[11] Unodc.org, (2014). Human Trafficking FAQs. [online] Available at: http://www.unodc.org/unodc/en/human-trafficking/faqs.html [Accessed 28 Dec. 2014].

[12] Interpol.int, (2014). Types of human trafficking. [online] Available at: http://www.interpol.int/Crime-areas/Trafficking-in-human-beings/Types-of-human-trafficking [Accessed 28 Dec. 2014].

[13] Rome Statute, Article 7(2)(d).

[14] Rome Statute, Elements of Crimes, Article 7(1)(d), footnote 12.

[15]Polarisproject.org, (2014). Human Trafficking. [online] Available at: http://www.polarisproject.org/human-trafficking/overview [Accessed 28 Dec. 2014].

[16] Article 7(1)(g).

[17] Unodc.org, (2014). Human Trafficking FAQs. [online] Available at: http://www.unodc.org/unodc/en/human-trafficking/faqs.html [Accessed 28 Dec. 2014].

[18] Rome Statute, Article 7(1)(k).

[19] Pocar, F. Human Trafficking: A Crime Against Humanity in Savona, E. and Stefanizzi, S. (2007). Measuring human trafficking. New York: Springer, p.8.

[20] Rome Statute, Article 7(2)(c).

[21] Rome Statute, Elements of Crimes, Article 7(1)(c), paragraph 1.

[22] Valenti, J. (2015). Inside human trafficking: don't call it 'modern day slavery' – fix it already. The Guardian. [online] Available at: http://www.theguardian.com/commentisfree/2014/apr/25/human-trafficking-modern-day-slavery-prostitution-in-new-york-city [Accessed 4 Jan. 2015].

[23] Boister, N. (2012). An introduction to transnational criminal law. Oxford (Royaume-Uni): Oxford University Press, p.42.

[24] The Prosecutor v. Kunarac, Kovac and Vukovic. IT-96-23-T & IT-96-23/1-T. Trial Chamber Judgment, 22 February 2001, paras 539-543.

[25] The Prosecutor v. Bemba Gombo. ICC-01/05-01/08-424. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83.

[26] The Prosecutor v. Katanga and Ngudjolo. ICC-01/04-01/07-717. Decision on the confirmation of charges, 30 September 2008, para. 394.

[27] Situation in the Republic of Kenya. ICC-01/09-19. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 94.

[28] Kim, J. (2011). Prosecuting Human Trafficking as a Crime Against Humanity Under the Rome Statute. Columbia Law School Blogs, p.24.

[29]  The Prosecutor v. Bemba Gombo. ICC-01/05-01/08-424. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 75.

[30] Ibid., para. 76

[31] Ibid., Para 77.

[32] Ibid., Para 81.

[33] Ibid.

[34] Rome Statute, Elements of Crime, Article 7, Introduction, Paragraph 2.

[35] Rome Statute, Preamble.

[36]  Prosecutor v Thomas Lubanga. Case No. ICC-01/04-01/06. Decision concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, 24 February 2006, para. 46.

[37] Ibid.

 

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