THE INTERNATIONAL CRIMINAL COURT AND TARGETING HUMAN TRAFFICKING

Rebecca Vasilas and Sabrina Warwick-Smith

August 31st, 2021

INTRODUCTION

Human trafficking is a crime which represents the world’s third largest and most profitable crime industry, with an annual profit as high as $150 billion.[1] The 2003 UN Trafficking Protocol (‘Trafficking Protocol’), which has been adopted in 178 states, is one of the most widely accepted definitions of human trafficking. Its definition requires an action (such as recruitment, transfer or harbouring of persons), by a certain means (including coercion, abduction, deception, and abuse of power), for the purpose of exploitation. [2]

However, despite its prevalent nature, it is also one of the most difficult crimes to quash and prosecute for several reasons. While there are actions that can be taken at State level, one of the reasons for the difficulties is that despite the International Criminal Court (ICC) being the only judicial body capable of adjudicating crimes beyond domestic jurisdictions, human trafficking is not criminalised under the Rome Statute.[3] Furthermore there is difficulty in gathering evidence against individuals, with survivors who may distrust authority and laws which are not fully equipped to help the victims.[4]

These practical realities and limitations on the prosecution of human trafficking is addressed in the following sections, as well as the possible solutions through amendments. 

 

THE ROLE OF THE STATE: RESPONDING TO HUMAN TRAFFICKING

Before considering the ICC’s role in the international crime of trafficking of persons, it is important to consider what role, if any, the State plays in preventing and deterring the committing of this crime. 

In an era of universal jurisdiction and positive complementarity, States are encouraged to domestically investigate crimes of international character or crimes that would fall within the jurisdiction of an international court.[5] The Trafficking Protocol, as of February 2020, has been signed and ratified by all but 7 ICC state parties. This requires states to adopt national legislation in keeping with the treaty so they can domestically prosecute human trafficking and many states have passed such legislation.[6] The case Uganda v Umutoni in 2014 highlights this, as an accused was convicted of child trafficking offences under the 2009 legislation which prohibited it.[7] Yet, many countries in Asia and Africa continue to have very small numbers of convictions and detection despite the growth of adoption in domestic legislation.[8] Therefore, the ICC could perform a significant role in not only providing an additional means of prosecution, but also deterring and preventing the crime of trafficking in person.

THE INTERNATIONAL CRIMINAL COURT AND ITS JURISDICTION OVER TRAFFICKING IN PERSONS

The jurisdiction, powers and structure of the ICC are outlined in the Rome Statute, the treaty which established the Court. Under the Rome Statute, the ICC only has jurisdiction to prosecute ‘the most serious crimes of concern to the international community as a whole.[9] This is limited to genocide, crimes against humanity, war crimes, and the crime of aggression.

Further, the ICC can only exercise their jurisdiction when states are either genuinely unable or unwilling to prosecute a crime. This is known as the principle of complementarity.

These principles impose several limitations on the ICC’s ability to prosecute human trafficking fully and effectively under its current framework.

 

Crimes Against Humanity

Firstly, human trafficking is not a crime that the ICC has jurisdiction over as per the Rome Statute. Despite this, many argue that Article 7 of the Statute, which provides the ICC jurisdiction over crimes against humanity, may be broadly read as to encompass human trafficking by characterising it as enslavement or an inhumane act.[10] However, prosecuting human trafficking under the umbrella of crimes against humanity would limit the elements of human trafficking that the ICC could feasibly prosecute. The definition of ‘enslavement’ under the Rome Statute only includes acts resulting in the enslavement of a victim. This would not include the elements of human trafficking that do not strictly include the right of ownership or depravation of liberty, such as the transportation of individuals through deception.[11] Further, acts that are central to the process of human trafficking: namely recruitment, transportation, transferring, harbouring or receipt, are not technically elements of ‘enslavement’, and subsequently would not be prosecutable by the ICC.

Principle of Complementarity 

This principle of complementarity, which prioritises state sovereignty and establishes the ICC as a court of last resort aimed at complementing national jurisdictions, also limits the extent to which the ICC can successfully prosecute instances of human trafficking. As per Article 7 of the Rome Statute, so long as there is not ‘unjustified delay’ and there is ‘fair, independent, and impartial legal proceedings’, a State will be seen as willing and able to prosecute a crime. This is a very low threshold and does not account for instances where proceedings are slow, procedurally held up or dismissed due to instances of corruption or political disputes. Further, there has been an increased trend in states domestically investigating crimes that have an international character and many states, such as Uganda, have established courts that are created to prosecute crimes that would traditionally be heard by the ICC.[12]

Possible Amendments

Many academics and international lawyers have suggested amendments that could be made to the Rome Statute and the operation of the ICC to mitigate the impact of these practical limitations. The most popular of these suggestions is adding human trafficking to the Rome Statute as a crime that the ICC has clear jurisdiction over. This would create a precise definition of the defence, and could include all the elements of trafficking, thus avoiding the current issues in prosecuting the crime.  

The 2003 UN Human Trafficking Protocol comprehensively states the elements that are to be established for a charge of human trafficking to be found.[13] This could serve as a definition that could be inserted into the Rome Statute with relative ease: the definition has received almost universal acceptance, and many states have successfully inserted this definition into their domestic legislation already.[14]

 

LIBYA AND HUMAN TRAFFICKING

A recent example that illustrates the tensions that exist between the practical realities of human trafficking and the ICC’s trouble with prosecuting is trafficking in Libya.

In 2018, departures from Libya to Italy saw a dramatic increase because of several bilateral agreements concluded between Libya and the European Union. This, in turn, saw migrants becoming fully dependant on traffickers to avoid increase surveillance in the region. This meant that trafficking of migrants became widespread, and extremely profitable. [15]

Even though the Libyan government indicated it was willing to prosecute and condemn trafficking, the lack of resources and institutional capacity to prosecute, regulate, and enforce made this difficult.[16] Subsequently, many argued that an international solution to the epidemic of trafficking in Libya should be sought. 

In the Libyan context, any prosecution of underlying crimes would not be possible under the existing Rome Statute framework, in terms of the jurisdiction that the ICC has. Whilst this could be amended by adding requirements to one of the four existing crimes the ICC has jurisdiction over to better encapsulate human trafficking, this still would not cover crimes committed by traffickers in Libya that do not meet the threshold of belonging to an organised criminal network. [17] This illustrates the need for the inclusion of a new stand-alone crime of human trafficking in the Rome Statute that would allow the ICC full jurisdiction to target all elements of trafficking, and at all levels.

CONCLUSION

Expanding the jurisdiction of the ICC to comprehensively include all elements of human trafficking, and to have more oversight over domestic processes in prosecuting human trafficking, will likely improve the process of punishing trafficking and enforcing anti-trafficking laws at the international level.