International Humanitarian and Criminal Law

4.1. Introduction

Despite the fact that many of the more appalling practices that take place during armed conflict could indeed be considered as falling under the international definition of human trafficking, international humanitarian law does not include any reference to it. Only to cite some examples, forced prostitution of women and girls in wartime, the forced enrollment of child soldiers or the forced enlistment of civilians into armed rebel groups are practices that appear to fulfill the elements required under the definition of the trafficking offence³³⁵. Nevertheless, neither humanitarian treaty law, primarily embodied in the Geneva Conventions³³⁶ and their protocols³³⁷, nor humanitarian customary law³³⁸ regulate human trafficking. Undeniably,

332 Both the current Special Rapporteur, Ms. Giammarinaro, a judge at the Rome Criminal Court, and the two previous ones, Ms. Ezeilo and Ms. Huda, are women.

333 Special Rapporteur on trafficking, Report of the Human Rights Council 2015, cit.

334 Relevant examples are the Legislative Guide for the Implementation of the United Nations Convention against Transnational Organized Crime (Legislative Guide to UNTOC) and The Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Legislative Guide to the Palermo Protocol), UNODC, 2004; and the OHCHR Commentary to the Trafficking Principles and Guidelines, cit..

335 A. Gallagher, The International Law …, cit., p. 209.

336 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (II Geneva Convention), Convention (III) relative to the Treatment of Prisoners of War (III Geneva Convention), Convention (IV) relative to the Protection of Civilian Persons in Time of War (IV Geneva Convention), adopted on 12 August 1949, 75 UNTS 31, 85, 135 and 287.

337 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), adopted on 8 June 1977, 1125 UNTS 3; Protocol

international humanitarian law has long prohibited exploitative practices that commonly take place during the process of trafficking, such as rape and “outrages upon personal dignity, in particular inhumane and degrading treatment or punishment, enforced prostitution and any form of indecent assault”, under both treaty³³⁹ and customary law³⁴⁰, but not trafficking as such.

Similarly, international criminal law, which establishes individual criminal responsibility for the most serious crimes of concern to the international community as a whole committed both in peace and wartime, has traditionally not included any reference to trafficking. International criminal law does criminalize sexual violence. However, in practice rape and other sexual violence or gender-related crimes were not prosecuted as war crimes until the 1990s when international commitment to addressing these practices prompted considerable progress in this domain³⁴¹. The Statute of the International Criminal Tribunal for Rwanda (ICTR) typifies rape, enforced prostitution and any form of indecent assault as a war crime³⁴², and the Statutes of the International Criminal Tribunals for Rwanda and for the Former Yugoslavia (ICTY) typify rape as a crime against humanity³⁴³, as long as the other constituent elements of those crime are met.

The Rome Statute, in force since 2002, provides a more comprehensive categorization of sexual violence as an international crime, where “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization”, as well as “other forms of sexual violence”, qualified in different ways depending on the crime at stake³⁴⁴, are constituents acts of either war crimes or crimes against humanity, when the other constituent elements of those crime are met.

However, these provisions of international humanitarian and criminal law fall short of covering all the practices linked to trafficking, and, most notably, do not criminalize trafficking per se as an autonomous, complex and multifaceted crime and human rights violation. One could therefore reach the conclusion that under international law trafficking is an ordinary crime with transnational dimensions, which has no relevance in international

Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), adopted on 8 June 1977, 1125 UNTS 609.

338 See the study sponsored by the International Committee of the Red Cross which analyzed contemporary humanitarian law customs, which only refers to trafficking within the framework of the Rome Statute definition of enslavement (which will be discussed later in this section): J.- M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (Volume I. Rules, Volume II. Practice), Cambridge University Press, 2005.

339 Additional Protocol I, Article 75; Additional Protocol II, Article 3(2).

340 See J.- M. Henckaerts and L. Doswald-Beck, Customary International, cit., pp. 324-326.

341 See N. Henry, War and Rape: Law, Memory and Justice, Routledge, 2011; M. Bergsmo (ed), Thematic Prosecution of International Sex Crimes, Torkel Opsahl Academic Epublisher, 2012; and K. D. Askin,

“Prosecuting Wartime Rape and other Gender-Related Crimes under International Criminal Law: Extraordinary Advances, Enduring Obstacles”, Berkley Journal of International Law, 2003, vol. 21, p. 288-349; Askin reaches the conclusion that the prohibition of sexual violence, at the very least of rape and sexual slavery, has risen to the level of a jus cogens norm. See also International Criminal Court (ICC), Policy paper on Sexual and Gender-Based Crimes, 2014; and OHCHR, The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation, 2008.

342 Statute of the International Criminal Tribunal for Rwanda, Security Council resolution S/RES/955, 8 November 1994, Article 4(e).

343 ICTR Statute, Article 3(g). Statute of the International Criminal Tribunals for the Former Yugoslavia, Security Council resolution S/RES/827, 25 May 1993, amended by Security Council resolution S/RES/1166, 13 May 1998, Article 5(g). On international criminal law and the role of international criminal tribunals, see M. C. Bassiouni, International Criminal Law, 3^rd ed., Nijhoff, 2008; C. de Than and E. Shorts International Criminal Law and Human Rights, Sweet and Maxwell, 2003; P. Pazartzis, “Tribunaux pénaux internationalisés: une nouvelle approche de la justice pénale (inter)nationale?”, Annuaire Français de Droit International, vol. 49, 2003, pp. 641-661.

344 See Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) of the Rome Statute.

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criminal law. However, recent developments have generated intense debates around this question, which find its origin in Article 7 of the Rome Statute.

4.2. The Rome Statute and the ICTY Kunarac case

Article 7 of the Rome Statute, which typifies crimes against humanity, includes the first reference to trafficking in persons in an international criminal law treaty. This is seen by part of the doctrine as equating trafficking to enslavement, and thus to a crime against humanity.

However, an analysis of the relevant provisions leads to a different conclusion.

Enslavement, which is listed among the constituent acts of the crime against humanity, is defined as follows in Article 7 of the Rome Statute:

"Enslavement" 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 children³⁴⁵

This definition is in substance the same as that of slavery to be found in the 1926 Slavery Convention³⁴⁶. Therefore, it appears that States parties to the Statute rejected the idea of widening the scope of enslavement as including not only slavery but also lesser servitudes, a possibility that was discussed during the work of the Preparatory Committee for the International Criminal Court³⁴⁷. This definition puts at the heart of the concept of enslavement

“the exercise of any or all of the powers attaching to the right of ownership over a person”. In this context, the reference to trafficking included in this definition does not change the centrality of the slavery concept, since the second part of the sentence refers to trafficking as amounting to enslavement only when it includes “the exercise of such power”. Indeed, what this reference to trafficking clarifies is that situations of trafficking should not be excluded ipso facto but should, on the contrary, be considered as constituting enslavement when they entail the exercise of powers attaching to the right of ownership³⁴⁸. But trafficking situations should only be considered when they entail the exercise of such powers, on the understanding that trafficking does not always entail such exercise: if it were not so, Article 7 would not have specified it, would not have qualified under which particular circumstances trafficking falls into its realm.

Another element that adds to the debate is to be found in the ICC Elements of Crime³⁴⁹, which also refer to trafficking, but in a different meaning. While element 1 of “Crime against humanity of enslavement” does not mention trafficking when describing enslavement, the second sentence of the footnote attached to Element 1 reads:

It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

345 Article 7(2)(c) of the Rome Statute.

346 As pointed out by A. Gallagher, the prohibition of slavery is based on international human rights law and is directed to States, where violations generate State’s responsibility, while the prohibition of enslavement, set out in international criminal law, is directed to individuals, as it carries individual criminal responsibility. The meaning of the two concepts is not necessarily the same, as discussed hereafter. See A. Gallagher, The International Law

…, cit., p. 184.

347 UN, United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Decision taken by the Preparatory Committee at its Session held from 11 to 21 February 1997, A/AC.249/1997/L.5, 12 March 1997, p. 1. See also J. Allain, Slavery in International Law…, cit., p. 273-274.

348 This is also the view taken by Allain, in J. Allain, Slavery in International Law…, cit., p. 274.

349 ICC Elements of Crime, adopted by the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 and revised in 2010 during the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010.

This footnote goes beyond what Article 7(2)(c) of the Rome Statute states. The term “includes trafficking in persons” actually equates trafficking, i.e. trafficking in all its forms, to enslavement, removing the requirement of the exercise of the powers attaching to the right of ownership. However, this does not conform to the definition of enslavement under Article 7(2)(c) of the Statute, which requires this exercise, as has just been considered. The mentioned footnote to the Element of crime is therefore not consistent with the Statute. It breaches the Statute, in accordance with Article 9(3) of the same Statute, which reads: “the elements of crime and amendments thereto should be consistent with this Statute”. Therefore, this footnote can only be considered valid if it is interpreted in accordance with the meaning of Article 7(2)(c). A reading that would equate trafficking in all its forms to enslavement would not be valid due to its disconformity with the Rome Statute.

In fact, if we consider that the definition of trafficking is particularly broad (Art. 3(1) of the Palermo Protocol reads “exploitation shall include, at a minimum …”), equating trafficking per se to enslavement “would leave the possibility of other, lesser, types of exploitation within the context of trafficking in persons open to the jurisdiction of the International Criminal Court” ³⁵⁰, in clear contradiction with the object and purpose of the Rome Statute³⁵¹, which is to prosecute exclusively the most serious crimes of concern to the international community as a whole³⁵².

As a consequence, one should reach the following conclusions: firstly, trafficking in persons per se does not amount to enslavement, and thus to a crime against humanity. Secondly, trafficking in persons may amount to enslavement, and thus to a crime against humanity, only in the most serious cases where, in addition to verifying the existence of the other two elements required under the Palermo Protocol definition (i.e. means and methods), the third element, exploitation, manifests “the exercise of any or all of the powers attaching to the right of ownership over a person”. This would be in line with Article 7(2)(c) of the Rome Statute, and more broadly with the object and purpose of that Statute, which is the prosecution of only the most serious crimes.

Also particularly relevant to this debate is the ICTY judgment in the Kunarac case. In determining whether the detention and sexual abuse of Muslim women during six months by the accused amounted to enslavement, the Tribunal shed some light around the legal notion of slavery, revealing an expanded, although not completely clear, understanding of this concept.

After reviewing the case law of the Nuremberg and Tokyo Military Tribunals, relevant provisions of the Geneva Conventions, the findings of the UN International Law Commission (ILC) and relevant human rights instruments, the Trial Chamber stated that the 1926 Slavery Convention definition of slavery applies to enslavement as a matter of international customary law:

In summary, the Trial Chamber finds that, at the time relevant to the indictment, enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person³⁵³.

In this context, it should be noted that the ILC 1996 Draft Code of Crimes Against the Peace and Security of Mankind, includes a definition of enslavement as a crime against humanity

350 J. Allain, Slavery in International Law …, cit., p. 288.

351 Article 31(1) of the VCLT, according to which a treaty should be interpreted “in the light of its object and purpose”.

352 Article 5 of the Rome Statute.

353 Kunarac Trial Judgment, para. 539.

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which is considerably broader, as it refers to both slavery, servitude and forced labour, as follows:

establishing or maintaining over persons a status of slavery, servitude or forced labour contrary to well-established and widely-recognized standards of international law, such as:

the 1926 Slavery Convention (slavery); the 1956 [ Supplementary Slavery Convention]

(slavery and servitude); the [ ICCPR] (slavery and servitude); and the 1957 [ Forced Labour Convention] (forced labour)³⁵⁴.

However, in a somehow contradictory way, the Trial Chamber, after providing a definition that exclusively focuses on the 1926 convention definition of slavery, subsequently finds that “this definition may be broader than the traditional and sometimes apparently distinct definitions of either slavery, the slave trade and servitude or forced or compulsory labour found in other areas of international law”. The Trial Chamber refers to the case law of the Second World War tribunals “which have included forced or compulsory labour under enslavement as a crime against humanity” and to the work of the ILC to support this conclusion³⁵⁵. In this context, the court identifies a number of relevant factors to be taken into account in determining the confines of the crime, which include:

the control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour³⁵⁶.

The Trial Chamber also identifies “sex; prostitution; and human trafficking” as further indications of enslavement³⁵⁷. This part of the ruling deserves some comments. At the outset, in its reasoning the Trial Chamber identifies a number of factors or indicia to be used to identify the boundaries of the crime of enslavement in its enlarged present-day perception.

However, another part of the reasoning remains unclear and raises concerns. Indeed, it remains unclear whether the intention of the Trial Chamber is to take as a reference the definition of slavery only and interpret it in a broad way, or whether its intention is on the contrary to expand the concept of enslavement as much as considering it even “broader” than the

“definitions of slavery, the slave trade, servitude and forced labour”. This latter reading would contradict what was negotiated and finally agreed in the Rome Statute, where the definition of enslavement is in substance the same as that of slavery to be found in the 1926 Slavery Convention³⁵⁸. As mentioned earlier, during the work of the Preparatory Commission for the International Criminal Court, States parties to the Statute clearly rejected the idea of widening the scope of enslavement as including not only slavery but also lesser servitudes.

The following year, the Appeal Chamber stated that it agreed with the accurateness of the Trial Chamber’s definition of enslavement and its thesis about the evolution of this concept. In this context, it sought to distinguish the “various contemporary forms of slavery” from classic

“chattel slavery”:

354 Report of the International Law Commission on the work of its forty-eight session, 6 May-26 July 1996, GA, Supplement No 10 (A/51/10), p. 98 (on Article 18).

355 Kunarac Trial Judgment, para. 541.

356 Ibid., para 543.

357 Ibid., para 542.

358 Of course, one should also consider that the ICTY applies customary law and is not bound by the Rome Statute. Also, Articles 10 and 22(3) of the Rome Statute clarify that the Statute does not prejudice existing or developing rules of international law.

The Appeals Chamber accepts the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as

“chattel slavery”, has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership. In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with “chattel slavery”, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of “chattel slavery” but the difference is one of degree³⁵⁹. The Appeals Chamber concludes that “at the time relevant to the alleged crimes, these contemporary forms of slavery formed part of enslavement as a crime against humanity under customary international law”³⁶⁰. Finally, the Appeal Chamber indicates that the question of whether a particular practice is to be considered as a form of enslavement depends on “the operation of the factors or indicia of enslavement identified by the Trial Chamber”³⁶¹ (mentioned above), to which we should add the one the same Appeal Chamber identifies in the mentioned paragraph: the destruction of the juridical personality, to a lesser or greater degree.

In relation to the uncertainty arising from the Trial Chamber judgment as mentioned earlier, the Appeal Chamber does not directly address the issue of whether the definition of enslavement also includes servitude and forced labour. However, its reiterated references to “the exercise of any or all of the powers attaching to the right of ownership” and its lack of reference to the other practices supports the conclusion that the Appeal Chamber’s reading takes as a reference the definition of slavery only, calling to interpret it in a broad way, based on the indicia identified by the Trial Chamber.

Based on the Appeal Chamber decision, one should conclude that under current international law the modern-day concept of slavery, as well as enslavement, includes various contemporary forms of slavery that are less extreme than the traditional concept of “chattel slavery”. In that context, it is not possible to draw up a list, as these practices should be determined on a case by case basis, based on the analysis of the factors identified by the Chamber. In any case, trafficking would only be prosecuted as a crime against humanity of enslavement if it reaches

Based on the Appeal Chamber decision, one should conclude that under current international law the modern-day concept of slavery, as well as enslavement, includes various contemporary forms of slavery that are less extreme than the traditional concept of “chattel slavery”. In that context, it is not possible to draw up a list, as these practices should be determined on a case by case basis, based on the analysis of the factors identified by the Chamber. In any case, trafficking would only be prosecuted as a crime against humanity of enslavement if it reaches

In document The human rights-based approach to human trafficking in international law: an analysis from a victim protection perspective (sider 98-125)