4 Obligations of Protection
5.1 Description of Human Trafficking
5.1.3 Human Trafficking Should not be Understood (just) as a Crime Against Humanity…
As was explained in the analysis around the enslavement provision of the Rome Statute in Chapter III, inclusion of trafficking as a term in the context of such a regulation has opened up room for new interpretations, due to the fact that the Statute does not make the meaning of ‘trafficking crimes’ clear enough. Further, the ICTY, in the Kunarac et als case, in which Kunarac and Kovač were charged with the ‘enslavement and rape of Muslim women whom they had detained during six months and abused for their own sexual gratification’, analysed the definition(s) of enslavement/slavery/trafficking.37 Accordingly, the Trial Chamber reiterated the classic definition of the Slavery Convention,38 and
characterised enslavement as an umbrella term for slavery, servitude and forced labour: ‘enslavement as a crime against humanity’ may be ‘broader than the distinct definitions of slavery, the slave trade and servitude or forced or
compulsory labour found in the other areas of international law’.39 Based on this judgment, Chapter III addressed whether trafficking is a form of enslavement and whether enslavement is a catchall term.
In this light, this section aims to conclude whether human trafficking crimes can be interpreted as amounting to crimes against humanity under the provision of enslavement in the Rome Statute. This concern is addressed in the following paragraphs.
Considering the violent nature of traffickers’ conduct, it is easy to label trafficking-related acts as crimes against humanity. Thus, it is important to understand whether regulations (such as the Rome Statute), in fact apply to these situations. In the preamble of the Rome Statute of the ICC, it was stressed that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. Such crimes were noted as including
37 ibid 304.
38 ibid 304.
39 Allain, The Law and Slavery: Prohibiting Human Exploitation (n 31) 189.
On appeal, the appellants claimed that the Trial Chamber adopted too broad a definition of the crime of enslavement, emphasizing in particular the requirements of lack of consent and duration as constituent elements of the crime. The Appeals Chamber did not agree and corroborated the Trial Chamber's findings. Wilt (n 30) 304.
5 Conclusion 162 international crime(s) of enslavement and war crime(s) such as sexual slavery.40 Further, the UN Security Council Presidential Statement,41 and Resolution 2331, adopted in 2016,42 refer to human trafficking crimes committed in war as crimes against humanity. During the meeting of the Security Council in December 2015,
‘[s]ome speakers emphasised that ISIL’s use of people as human shields, sexual slaves and forced labourers constituted war crimes and crimes against humanity, and thus punishable by the International Criminal Court’.43 Furthermore, the S/RES/2331 stresses that ‘human trafficking has contributed to other forms of transnational organized crime, which could exacerbate conflict and foster increased global insecurity and instability’.44 Secretary-General Ban Ki-Moon has stressed that ‘all perpetrators [of trafficking] must be brought to justice’, and only an ‘international response could succeed in resolving an international
problem like human trafficking’.45 The latter indicates the transnational criminal law aspect of trafficking crimes. It should also be noted that ‘crimes against humanity can [also] be perpetrated when there is no armed conflict taking place. It is misleading - in fact wildly inaccurate - to think of [trafficking]
occurring only during armed conflict’.46 Without any doubt, when trafficking is deployed during armed conflict, the damage is more brutal and horrific:47 This is why it is important to conclude whether trafficking can be regarded as one of the ‘most serious crimes of concern to the international community as a whole or delicta juris gentium’.48
As explained in Chapter III, using enslavement as an umbrella-term for
trafficking is not legally correct. As well, the slavery analogy is not an accurate way of categorising human trafficking crimes as an international crime. After all, even if human trafficking, by taking into account the opinion of the ICTY, can be
40 Rome Statute of the International Criminal Court (last amended 2010) (2187 UNTS 90) adopted 17 July 1998, entered into force 1 July 2002.
41 United Nations Meetings Coverage & Press Releases, ‘Security Council Presidential Statement Says Human Trafficking Might Constitute War Crimes, as Members Consider Issue for First Time’ (n 26).
42 ibid.
43 ibid.
44 ibid.
45 ibid.
46 Piotrowicz, ‘‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (n 28) 184 [emphasis added].
47 United Nations Meetings Coverage and Press Releases ‘Security Council Presidential Statement Says Human Trafficking Might Constitute War Crimes, as Members Consider Issue for First Time’ (n 26).
48 Tom Obokata, Trafficking of Human Beings from a Human Rights Perspective Towards a Holistic Approach (Martinus Nijhoff Publishers, 2006), 139.
5 Conclusion 163 assimilated into the provision of enslavement or another category in the Rome Statute’s Article 7, it would mean that trafficking qualifies as a crime against humanity, and is eligible for prosecution and trial by the ICC and international criminal tribunals.49 Yet, in such a situation, several other key elements must also be met before an act can be elevated to a crime against humanity.50
The Rome Statute’s article 7(1)(a)-(k) establishes the perpetration of the acts enumerated in the context of crime against humanity, which reads as follows:
The acts must constitute an attack directed against any civilian population; the acts must be widespread or systematic in nature; the attack must be pursuant to, or in furtherance of, a State or
organisational policy to commit such attacks; the acts must be
committed as part of the attack; the perpetrator(s) must have known that the conduct was part of or intended the conduct to be a part of such an attack.
This regulation can be completed on the point of:
Crimes against humanity are typically committed against fellow nationals as well as foreigners; [c]rimes against humanity are international crimes;
[c]rimes against humanity are committed by politically organized groups acting under color of policy; [c]rimes against humanity consist of the most severe and abominable acts of violence and persecution; [c]rimes against humanity are inflicted on victims based on their membership in a population rather than their individual characteristics.51
Above-mentioned key elements include following:
Whether it is accepted that human trafficking is widespread and there is no country on earth immune from human trafficking. E.g., considering human trafficking as a transnational organized crime, its presence is felt in all the countries across the world, therefore there would be a need to have an
49 Wilt (n 30) 299.
50 Tom Obokata, ‘Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System’ (2005) 54(2) International & Cooperative Law Quarterly 445, at 451.
51 David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal International Law 85, at 93ff.
5 Conclusion 164 international body or statute which could address the human trafficking cases and deliver effective and efficient prosecution;52
If acts of trafficking can be considered as attacks directed against any civilian population.53 Indeed
such attacks on civilian populations are done through human trafficking based on some policies of using the children as shields in armed
conflicts, using women for sexual exploitation, exploiting women and children through forced labour and finally exploiting many cultural and ethnic groups or population;54
If it is perceived that human trafficking is a profitable business of organised criminal groups and is committed systematically;
If human trafficking can be committed purely for personal motives or if it is proven that ‘the perpetrator was aware of the attack but may not have the knowledge of all the characteristics and precise details of the attack and the policy of the State or the organization’;55
If it is acknowledged that either there is an organisation, ‘in the absence of a State policy there must be an organization, but only a “State-like” organization having some type of policy would qualify’;56
If there is ‘any entity with the capacity to carry out crimes against humanity’.57 In addition, accepting the latter approach involves accepting the understanding that non-state actors, such as traffickers or organisations backed by
governmental policies can also commit trafficking.
Creating distinctions between crimes and labelling some as ‘against humanity’
dictates an understanding that in fact some crimes are inhuman.58 This requires
52 Joshua N Aston & Vinay N Paranjape, ‘Human Trafficking and Its Prosecution: Challenges of the ICC’ (2012), 1 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203711 > accessed 29 March 2017.
53 Wilt (n 30) 315.
54 Aston & Paranjape (n 52) 8.
55 ibid 9.
56 Jalloh Charles Chernor, ‘What Makes a Crime against Humanity’ (2013) 28(2) American University International Law Review 381, at 384.
57 ibid 385.
58 Raimond Gaita, ‘Refocusing Genocide: A Philosophical Responsibility’ in John K Roth (ed), Genocide & Human Rights - A Philosophical Guide (Palgrave Macmillan, 2005), 153-163.
5 Conclusion 165 an assessment of whether human trafficking crimes indeed have an impact on humanity in the first place. Humanity in this context refers to both humankind and the spirit of human nature. Bassiouni considers crimes against humanity as grievous enough to ‘shock the conscience of mankind’.59 Crimes against
humanity such as genocide or slavery shock humankind’s conscience, even though specific instances of such actions may not threaten peace and security.60 Viewed along these lines, ‘crimes against humanity’ as a term ‘signifies that all humanity is the interested party and that humanity's interest may differ from the interests of the victims’.61 The question becomes whether such deep understanding can be established and implemented for trafficking crimes, as
‘violating humanness and offending against humankind are not equivalent’ - sadistic rape or murder degrades the humanity of its victim without impacting the interests of the entire human race.62
In light of this section’s analysis, it can be concluded that if the requirements are indeed met to accept human trafficking as a crime against humanity, states will be more reluctant to combat corruption, intimidation and bribery
perpetrated by traffickers due to direct control of the offence of trafficking that would become possible at the international level.63 Obligations of protection would be implemented in a more effective way, especially considering the importance of identification and non-criminalisation of trafficked victims. This would also encourage states to take global action against human trafficking crimes.64 However, it is also important to note that the ICC is only the last resort to prosecute such cases and to have jurisdiction over the crimes conducted in the state party’s territory, which would only happen if the states fail to
‘exercise criminal jurisdiction or are not able to investigate and prosecute the cases or are unwilling to investigate and prosecute cases’.65 If states ‘start prosecuting and resolving cases of trafficking and crimes against humanity in an
59 M Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59(4) Law and Contemporary Problems 63, at 69.
60 David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal International Law 85, at 88.
61 ibid 88.
62 ibid 90.
63 Obokata, ‘Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System’ (n 50) 453.
64 ibid 454.
65 Aston & Paranjape (n 52) 12.
5 Conclusion 166 effective manner at the national level, then the ICC will have no cases to
prosecute’.66
The Rome Statute also fails to define the substantive content of the prohibition of enslavement, which directly affects the ability of the international
community to bring to justice those individuals who are criminally responsible for violating the prohibition.67 ‘Enslavement’ as interpreted by the ICTY is not a catchall term that all trafficking crimes can be put under: ‘although the link between trafficking and slavery has been clearly acknowledged by the European Court of Human Rights, that court has shied away from stating explicitly that trafficking amounts to enslavement’.68 The court stressed the clear links between the two practices:
(…) trafficking in human beings, by its very nature and aim of
exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment (…) It involves the use of violence and threats against victims, who live and work under poor conditions.
It should also be noted that the duty to eradicate slavery as a human rights violation is clearly identified by the International Court of Justice as a supreme rule of customary international law, a legal obligation erga omnes, and part of jus cogens, a fundamental norm of international law;69 whereas there is no clear indication and regulation for human trafficking crimes.70 This also confirms that
‘a criminal justice response alone, represented by the Trafficking Protocol and international criminal law, is not sufficient’71 to tackle trafficking as a matter of international crime, particularly a crime against humanity. E.g., it might be also considered whether human trafficking can be determined under the category of
‘other human acts’ of the Article 7(1)(k) as crime against humanity, yet again
‘other human acts’ is not defined and specified by the Rome Statute that would
66 ibid 12.
67 Allain, The Law and Slavery Prohibiting Human Exploitation (n 31) 799.
68 Piotrowicz, ‘‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (n 28) 196, 201.
69 See M Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 New York University Journal of International Law & Politics 445.
70 A Yasmine Rassam, ‘Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade under Customary International Law’ (1999) 39 Virginia Journal International Law 311, at 322.
71 Obokata, ‘Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System’ (n 50) 457.
5 Conclusion 167 help address trafficking crimes as one of the crimes against humanity. Thus, a clear understanding of trafficking in connection to crimes against humanity would be preferable to a broad and arguably vague definition under
international law, if the aim was to elevate human trafficking to a crime against humanity.