The Capacity of the International Criminal Court to Fight Human Trafficking

ABSTRACT

The ongoing war in Ukraine has again highlighted the link between conflict and trafficking in persons, especially refugees. Despite the understanding that trafficking in human beings in the context of armed conflict (and sometimes even outside of it) can amount to an international crime, both research and anti-trafficking policies tend to view trafficking as a (trans)national phenomenon. As a result, the potential of the International Criminal Court (ICC), a permanent international criminal tribunal tasked with adjudicating perpetrators of international crimes, to contribute to the fight against human trafficking remains largely neglected in current discourses. To fill this gap and, at the same time, facilitate efforts to build an effective and sustainable capacity to combat human trafficking at the (trans)national and international levels (UN Sustainable Development Goal 16), this article has two objectives. First, it examines the ICC’s procedural capacity to combat human trafficking, focusing on its support for domestic investigations and prosecutions and the requirements for effectively transferring prosecutions to the international level. Second, it analyzes the substantive requirements for qualifying human trafficking as an international crime for purposes of effective prosecution at the ICC in light of recent jurisprudence, especially the Ongwen case.

KEYWORDS:

• International Criminal Court
• The Ukraine conflict
• refugees
• migrants
• Dominic Ongwen
• human trafficking
• enslavement
• slavery
• sexual slavery
• crimes against humanity
• war crimes
• positive complementarity

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ Exceptions include, for example (Alhadi, 2020; Aston, 2016; Bradfield, 2020a, 2020b; Kim, 2011; Knust & Lingenfelter, 2019; Moran, 2014; Siller, 2016; Tavakoli, 2009; van der Wilt, 2014 and Pocar, 2007). Given that existing research is conducted in international (criminal) law, it seems to be largely neglected in discourses on trafficking at the (trans-)national level.

² See the ICC web page, Situation in Libya (ICC-01/11), https://www.icc-cpi.int/libya.

³ Such criteria may include, for example, the extent of the damage caused, the nature and circumstances of the crime, the degree of participation, the intent and motive of the accused person, and the number of victims (The Prosecutor v. Al Hassan, 2020, para. 89).

⁴ The 2022 Global Report on Trafficking in Persons shows an increase in the number of detected trafficking victims in the Global North, as opposed to countries in the Global South, which are more often associated with armed conflict (UNODC, 2022b).

⁵ This is just one part of an ongoing discussion about the pros and cons of conflating slavery with enslavement and human trafficking in international law and policy (see also Allain, 2013; Atak & Simeon, 2015; Chuang, 2014; Gallagher, 2010; Palacios-Arapiles, 2022; Pocar, 2007; Scarpa, 2008; Tavakoli, 2009).

⁶ Section 1.: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

⁷ The challenge to prosecuting such cases at the ICC is not only the potential lack of jurisdiction of the Court due to the non-ratification of the ICC Statute in those states where state-sponsored crimes may be rampant, but also the fact that some of these states, such as the U.S., Russia and China, have a permanent seat on UNSC, which allows them to effectively block any attempts to adjudicate cases in which their government may be implicated on the basis of a UNSC referral to ICC.

⁸ Art 1(1): “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.

⁹ Art. 3(a) of the 2000 UN Trafficking Protocol criminalizes certain acts (i.e. recruitment, transportation, transfer, harboring or receipt of persons) done by certain means (i.e. “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 (e.g. prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs) as “trafficking in persons”.