MODERN DAY SLAVERY & TRAFFICKING UNDER THE ROME STATUTE

Modern day slavery is an umbrella term used for contemporary forms of slavery like trafficking, forced labour, forced marriages, etc. A correct understanding of the term is important because only the abolition of slavery and slavery related practices is a jus cogens norm.  Contemporary forms of slavery are only covered by these terms if they overlap with the constituent elements of slavery, like ownership, which is ineffective in prosecuting such crimes. Modern day slavery has become a growing human rights concern that necessitates the international criminal justice system to step in and protect the exploited groups. Modern day slavery comes in diverse forms: Mauritanians being brought up in hereditary or ‘chattel’ slavery, Indian families working in brick kilns caught in the web of debt bondage, forced labour of migrants from Myanmar on Thai fishing boats, trafficking of construction workers for forced labour in Qatar, girls abducted into sexual slavery by Boko Haram and Islamic State, and enslavement of political prisoners in North Korea. Presently, these forms of slavery are estimated to be a 32 billion USD/year industry  and to affect the lives of over 12.3 million people worldwide. Furthermore, estimates show that between one in 162 to one in 400 people are entrapped in the cycle of modern day slavery. Trafficking constitutes the third-largest global criminal industry.

With the International Criminal Court’s (‘the ICC’) investigation into migrant smuggling and human trafficking in Libya (ICC-01/11), the contentious issue pertaining to the scope of contemporary forms of slavery as a Crime Against Humanity (‘CAH’) under the Rome Statute ( ‘the Statute’) has resurfaced. Additionally, in the Thirteenth Report of the Prosecutor of the International Criminal Court, the office of the prosecutor has stressed the situation in Libya and the need to look into crimes committed against the migrants. The report shed light on the appalling security situation in Libya and listed its close proximity with Europe as a reason for the exponential rise in such crimes. As per the data given in the report, in a span of 11 months, around 181,436 migrants were trafficked from North Africa to Italy and over 3,700 migrants are reported to have died in the Mediterranean by drowning while on the move. Furthermore, the report included accounts of these migrants being subjected to inhumane conditions in unregulated detention halls. It has also been reported that they are victims of crimes like killings, rape and other forms of sexual violence, torture and forced labour, as well as human trafficking.

The applicability of national criminal law is restricted due to two reasons. First, the reach of trafficking and migrant smuggling spreads beyond national borders. People are trafficked across multifarious borders and it is not viable in practice for a domestic body to investigate and attribute liability to States or people. Furthermore, actors involved in the trafficking process might not even be nationals of the country prosecuting the traffickers. Hence, these crimes are transnational and only international adjudication can be equipped to combat them effectively. Second, States tend to aim to constrict the efforts of the national courts within its borders. Domestic courts are susceptible to political influences and may not be purely objective, specifically in cases where the executive or legislature perpetrates these crimes. An example of this is the migrant-smuggling in Libya, where the State orchestrated the trafficking of the migrants that passed in and through Libya. Human trafficking violates fundamental human dignity and can only be eradicated by cooperation between nations and the existence of a proper enforcement system. Therefore, we need to explore the feasibility of expanding the scope of the international justice system by a specialised body like the ICC to combat contemporary forms of slavery.

Under the current ICC regime, only traditional enslavement is prosecutable as a CAH. This is primarily because of the fact that when the Statute was adopted, trafficking was defined within the contours of sexual exploitation, particularly of women and children. Despite the existence of numerous international treaties, trafficking has not been exhaustively defined, although it has been construed as the unlawful movement or confinement of persons for the purpose of exploitation through multifaceted means and methods.

Human trafficking finds mention in the Statute as enslavement under article 7(2)(c) that defines enslavement to include “the exercise of powers attaching to the right of ownership in the course of trafficking”. The sine qua non under article 7(2)(c) is the existence of a right of ownership over the trafficked persons which can be carried out by means of trade or sale of one or more persons, and other acts that comprise a similar deprivation of liberty. However, trafficking in people emanating independently of slave trade is broader than slavery and other slavery-like practices.

A universal definition of human trafficking was adopted by the United Nations in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) (hereinafter ‘the Protocol’). This is regarded as the most widely accepted definition of trafficking, with 159 parties and 117 signatories to the Protocol. Under article 3(a) of the Protocol, the three key elements of trafficking comprise the act, the means and the purpose of trafficking in persons. The ‘Act’ is defined in the Protocol to involve recruitment, transportation, transfer or harbouring. ‘Means’ refers to the mode that is used to attain control over the victim. It includes the use of force, abuse of power or a position of vulnerability, fraud, deception, etc. A striking feature of this protocol is the acceptance of vulnerability as an important factor to assess trafficking. The position of vulnerability is understood as any situation in which the victim involved has no real and acceptable alternative. It is also pertinent to note that the Protocol states that when the ‘means’ element is satisfied, consent becomes irrelevant, and it has been internationally recognised that a person cannot consent to being trafficked. The only ‘purpose’ mentioned in the protocol is exploitation. Exploitation has an inclusive definition in the protocol to include, at the minimum, prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, etc.

The wide ambit of the definition of exploitation becomes clear when one considers the inconsistencies between the Palermo definition of trafficking and the definition of enslavement under the Statute. The seriousness of this issue has been raised before, and during the drafting of the Statute, the Women’s Caucus lobbied for trafficking to be included as an independent crime as the focus on ownership would restrict the ambit of the crime to exclude systematic recruitment and exploitation by persons other than traffickers. Unfortunately, this concern was not taken up at the time. The current definition of enslavement under ICC is narrow due to the statutorily mandated link to ownership, coupled with the exclusion of a vulnerability assessment of the victim as laid down in the Protocol. This leads to the exclusion of various forms of trafficking from being prosecuted before the ICC, such as contractual bondage. An example of contractual bondage occurs when migrant labourers are recruited and trafficked on a large-scale and further exploited with forced labour. Their passports are taken away as a part of their work contracts and they are made to work for long hours, low wages and inhumane working and living conditions. These types of trafficking cases, despite satisfying the prescribed gravity threshold under the Statute, might be precluded from prosecution under article 7(1)(c) due to the application of the traditional requirement of ownership, which involves proving that the recruiter had possession over the person, i.e. it has to be shown that the recruiter owned and directly controlled the trafficked persons. It will be extremely hard to prove possession in such cases.

Thus, it is amply clear that human trafficking cannot be subsumed under the garb of enslavement and that such a legal characterisation will leave a majority of the trafficking cases without an effective redressal mechanism. At this juncture, the most practical solution for the ICC would be to invoke article 7(1)(k) in cases of trafficking. Article 7(1)(k) of the Statute is a residuary provision seeking to prosecute crimes that pass the gravity threshold under the Statute, but which are not specifically enumerated under article 7. The inhumane act should be of comparable gravity to the other enumerated crimes under article 7. This can be assessed through a complete factual analysis coupled with an assessment of the physical and mental effects on the victim. Thus, trafficking in persons being broader than enslavement should be examined under the lens of article 7(1)(k) in cases where the gravity threshold enumerated for crimes under article 7 is met.

For instance, the ICC, in the decision confirming the charges against Dominic Ongwen, characterised forced marriage as a distinct CAH under the purview of 7(1)(k) and did not limit it to the ambit of sexual slavery under article 7(1)(g). The ICC reasoned that forced marriage involved various other violations such as domestic labour, forced pregnancy and the social stigmatisation caused to the ‘bush wives’ and their children. These separate and additional factors coupled with sexual violations made the crime of forced marriage distinct from sexual slavery, warranting prosecution under article 7(1)(k). A similar rationale was applied by the Appeals Chamber of the Sierra Leone Court in the case of Prosecutor v. Birma, Kamara and Kanu.

We conclude that the traditional view on slavery does not suit the contemporaneous evolution of trafficking and similar practices that are much broader in ambit. Though the traditional view on trafficking is linked to an indispensable requirement of ownership, the ICC has not ruled on that aspect yet and the Court seems to be in agreement with these modern developments on the crime of trafficking. We conclude that, in order to arrive at an effective prosecution of contemporaneous forms of trafficking, the Court will eventually have to rely on the provisions of Article 7(1)(k) of the Statute.

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