Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.

**By: Romina Morello[1] and Frederika Schweighoferova[2][*]**

Human trafficking is one of the gravest violations of human rights that affects every country of the world. With annual profit as high as $150 billion, it represents the world’s third largest and most profitable crime industry after illicit drug and arms trafficking.

According to the International Labour Organization and the United Nations (“UN”) Migration Agency, in 2016 alone, over 40 million people were victims of “modern slavery.” To break it down, more than 25 million have been victims of forced labor, including forced labor exploitation, forced sexual exploitation of adults, commercial sexual exploitation of children, and state-imposed forced labor and over 15 million people were victims of forced marriage. Of this 40 million, the report estimates, 71% of victims of “modern slavery” are women and girls, and one in four victims is a child.

The most widely accepted definition of human trafficking is included in the 2003 UN Trafficking Protocol (“Trafficking Protocol”), adopted by 178 states. According to Article 3(a) of the Protocol, to constitute trafficking in persons, three basic elements need to be established: an action (“recruitment, transportation, transfer, harbouring or receipt of persons”) by certain means (“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 (which “includes at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”).

This Protocol, which calls on states parties to establish policies to prevent and combat trafficking in persons, aims at creating consistency in domestic criminal systems around the world, rather than criminalizing the act internationally. However, the numbers given above indicate the insufficiency of the existing legal frameworks, and their enforcement, in curbing the crime effectively.

Under the current system, the only judicial body capable of adjudicating crimes beyond the remit of domestic jurisdictions is the International Criminal Court (“ICC”). While the crime of human trafficking is not criminalized under the Rome Statute, the founding treaty of the ICC, the inclusion of the crime could be warranted given the scale, gravity, and brutality of the crime.

This article explores the possibility of prosecuting human trafficking under (i) the current framework of the Rome Statute system; (ii) through amending the Rome Statute to include human trafficking as a separate underlying act of crimes against humanity, or (iii) through an amendment to the Rome Statute to include a new stand-alone core crime of human trafficking, as defined under the UN Trafficking Protocol.

1. “Premiers Responsables”: States

As a preliminary matter, before prosecution under any of the three avenues discussed in this article could take place at the ICC, the Court must first determine if it is able to exercise jurisdiction. As enshrined in paragraph 6 of the preamble of the Rome Statue, states have the primary duty to exercise jurisdiction over international crimes. Only when states are unable or unwilling to prosecute a crime can the ICC intervene. This is one of the core principles of the system created by the Rome Statute: the principle of complementarity.

As of February 2020, all but seven ICC states parties have ratified or signed the Trafficking Protocol, which requires states to adopt national legislation in line with the treaty so they can then prosecute human trafficking domestically. According to the 2018 Global Study on Trafficking in Persons from the UN Office on Drugs and Crime (“UNODC”), which covered 100 ICC states parties, most states have enacted human trafficking-related domestic legislation.

However, despite the increase in the adoption of comprehensive trafficking in persons in the domestic legislations in recent years and pronounced increasing trends in the numbers of convictions, many countries in Africa and Asia continue to have very low numbers of detection of victims and convictions for human trafficking. The inclusion of human trafficking as a new core crime under the Rome Statute would create individual responsibility independent of domestic legal systems and could serve not only as an additional prosecution channel, but also as a much-needed deterrent in light of the current climate of impunity.

2. Prosecuting Human Trafficking under Existing Provisions of the Rome Statute

Human trafficking is neither a core crime under the Rome Statute nor an underlying act under the existing core crimes: genocide, crimes against humanity, war crimes, and crime of aggression. The travaux préparatoires of the Rome Statute do not offer much insight into why human trafficking was not explicitly included in the Rome Statute. However, Article 7 of the Rome Statute on crimes against humanity may be read as encompassing human trafficking, whether under enslavement or as other inhumane acts, two of the underlaying acts of crimes against humanity.

In order for an act to amount to a crime against humanity, it must meet the requirements included in the chapeau of its definition. That is, it must be part of a “systematic or widespread attack against the civilian population” done “pursuant to or in furtherance of a state or organizational policy.”

The term “widespread” has mainly a quantitative meaning referring to the scale of the attack or to the number of victims. It covers situations involving a multiplicity of victims, as a result of the cumulative effect of a series of inhumane acts or the singular effect of one inhumane act of extraordinary magnitude.The term “systematic” refers to the “organised nature of the acts of violence and the improbability of their random occurrence.” An attack’s systematic nature can “often be expressed through patterns of crimes, in the sense of non- accidental repetition of similar criminal conduct on a regular basis.”

An attack under Article 7 of the Rome Statute does not have to be a military attack but can entail “a campaign or operation carried out against the civilian population,” “consist[ing] of a course of conduct involving multiple commission of acts referred to in article 7(1).” “Civilian population” refers to persons who are civilians, as opposed to members of armed forces and other legitimate combatants. The attack needs to be directed against the civilian population and not merely against randomly selected individuals.

The “state or organizational policy” requirement can be satisfied by circumstantial evidence showing that the “attack follow[ed] a regular pattern” and was not an “isolated act of violence.” The policy does not need to be formalized and it can be deducted from the “systematic” element.

a) Enslavement

Beyond the chapeau, one of the enumerated prohibited acts under Article 7 is the act of enslavement, defined in the Rome Statute as “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 children.” The essential element under this article is the existence of a right of ownership over the trafficked persons acquired “by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.”

Prosecuting human trafficking under the already existing crime of enslavement as crime against humanity would not require an amendment to the Rome Statute. However, despite presenting the most feasible way to prosecute human trafficking at the ICC at this moment, this option would require that the act of human trafficking complies with all the elements of the definition of crimes against humanity in addition to the elements of the crime of enslavement.

b) Other Inhumane Acts

Another potential provision under which to prosecute human trafficking under the Rome Statute is Article 7(1)(k): “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” This provision covers acts which are “of a character similar to any other act” referred to in Article 7(1) of the Rome Statute.

The classification of trafficking in human persons as inhumane clearly does not require further discussion. The serious social, psychological, and physical harm human trafficking victims suffer is of comparable gravity to other Article 7(1) acts.

c) Practical Implications

Despite the overlap of the existing Rome Statute provisions with the crime of human trafficking crime, the current legal framework is insufficient to effectively address most human trafficking crimes.

Using the underlying acts of crimes against humanity would limit the prosecution to human trafficking that takes place in the context of “widespread or systematic attack against civilians,” “pursuant to or in furtherance of a State or organizational policy.” Even when most trafficking is committed by criminal networks, these, while organized, may not meet the requirements of “organizational policy” developed by the ICC jurisprudence for organized groups:

(i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a state; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria.

Such interpretation suggests that only high-level organized criminal networks de facto governing a part of state territory, may satisfy the element of “organizational policy.” As such, the trafficking groups which, although not reaching the “organizational policy” threshold are nevertheless capable of committing systematic or widespread attacks against a civilian population, would not be prosecutable under the existing Rome Statute provisions.

Despite the overlap of the crime of enslavement and other inhumane acts with human trafficking and the corresponding jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and regional courts, which have used the crime of enslavement against human traffickers, these crimes are insufficient to cover all elements defined in the Trafficking Protocol.

In particular, the definition of enslavement under the Rome Statute would only cover the prosecution of acts resulting in the enslavement of the victim—which forms only one of the purposes of exploitation under the Trafficking Protocol. This would exclude the ability to capture other forms of exploitation which do not entail the right of ownership or deprivation of liberty as they are done by, e.g., abusing power or victim’s vulnerable position.

Further, as stemming from the Trafficking Protocol definition, trafficking actually does not require the exercise of any powers of ownership over the trafficked person as required under the crime of enslavement. While trafficking can serve as one of the vehicles for the exercise of a power attaching to the right of ownership of the kind required to constitute enslavement, in many instances, it will not give rise to the power of ownership. For instance, this could encompass the transportation of individuals—by, e.g., deception or other means in case of adult victims—for a service amounting to exploitation. The conduct in question may—but also may not—amount to the control of someone’s movement and/or psychological control over an individual, yet the difference is a matter of degree and an assessment of a person as another’s “possession” and “exercise of ownership.” In the above example, it could not be determined the victim is “enslaved” at that stage. Obtaining someone’s consent—to be transported/recruited/harbored etc.—by fraud, deception, abuse of power or of a position of vulnerability, does not equate to “exercising ownership” or “enslaving the person.”

Another important distinction lies in the element of consent. Trafficking requires a proof of “means”—coercive circumstances to demonstrate the adult victims’ lack of consent, whereas the slave trade/enslavement does not require such proof. Consent is neither an element nor a defense to the slave trade.

While it could be argued that the residual provision of “other inhumane acts” could compensate for these shortcomings, it would be an imperfect solution to addressing this grave widespread crime to simply call it “other inhumane act” and not accord it the qualification as required. Naming a crime is an essential part of criminal law which not only gives it the force, but also offers legal certainty to the defendants and victims. Or else we would not need to have any specific underlying acts of crimes against humanity whatsoever.

Finally, the absence of certain elements under the existing Rome Statute provisions, which form an integral part of human trafficking, would also limit the prosecution’s options in terms of applicable modes of liabilities. In particular, the acts of recruitment, transportation, transfer, harboring, or receipt would likely only be prosecutable under alternative modes of indirect perpetration liability (ordering, soliciting, inducing, aiding, abetting, or otherwise assisting in the commission of the crime) or contribution liability (“in any other way contribut[ing] to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”) rather than under direct (co-) perpetration of the human trafficking—simply because the crimes of enslavement or other inhumane acts do not include these acts within their elements. This could, therefore, lead to shorter sentences in case of adjudication of criminal liability, potentially limiting the deterrence effect of the ICC for these crucial parts of the crime of trafficking in persons.

3. Amendment to the Rome Statute

None of the existing international or regional human rights treaties addressing human trafficking create a mechanism to establish individual criminal responsibility. Adding human trafficking as a new crime under the Rome Statute would allow for a precise definition of the offense which international law seeks to address. The inclusion of human trafficking under the Rome Statute as defined in the UN Trafficking Protocol could be pursued in two ways: through adding an underlying act of human trafficking under the existing provision of crimes against humanity, or as a new Article 5 core crime.

The first option would already expand the material jurisdiction of the ICC to the elements that the crime of enslavement or other inhumane acts would not cover. While potentially more likely to be accepted by states parties, the disadvantage of opting for an amendment expanding the underlying acts of Article 7 of the Rome Statute to acts of human trafficking are, as explained above, glaring: prosecuting trafficking as a crime against humanity would require the satisfaction of the core crime’s chapeau elements, limiting the ICC jurisdiction to human trafficking committed in a widespread or systematic manner pursuant to or in furtherance of an organizational policy. This would, as a result, disregard the majority of the crimes as the organized groups would not reach the organization threshold criteria required by the Rome Statute.

For this reason, a stand-alone crime under the Rome Statute would offer the widest—and for the moment the only—international legal avenue to investigate and prosecute human trafficking not limited to the required elements of crimes against humanity.

Creating a new core crime would allow the Court to pursue specific, tailored cases without needing to jump through jurisdictional hurdles or to cherry-pick facts to fit the existing crimes. Prosecutions would address the multiple and diverse stages of the crime of human trafficking, tailored to the specific elements of the crime. This guidance will not only aid the Prosecutor in developing the case, but will allow focused and effective investigations that target the key individuals in trafficking operations, rather than individuals whose actions best match the current existing crimes.

Gang leaders and heads of criminal organizations could be prosecuted in the same manner that commanders and armed forces leaders may be, including through the principle of command responsibility. Given the publicity and exposure of proceedings at the ICC, such prosecutions could deter traffickers and end the prevailing impunity.

The definition of trafficking in persons enshrined in the UN Trafficking Protocol could serve as the basis for an amendment to the Rome Statute, with its specificities added to the Elements of Crimes. This definition has not only achieved almost universal acceptance, as mentioned above, but has also been transposed into the domestic legislation of many states parties to the Rome Statute.

4. Conclusion

Given the widespread commission of trafficking in human beings, further exacerbated by the reported government complicity in several countries and regions, it is imperative to continue contemplating innovative solutions to enforce accountability on traffickers. The ICC, while limited through its resources and capacity to change the trafficking in human being’s landscape, nonetheless has the potential to contribute meaningfully to bringing justice for trafficking victims.

Whether and how the ICC should get involved with prosecuting trafficking in persons is a question that requires continued reflection and engagement on behalf of states impacted by human trafficking. Amending the Rome Statute to include human trafficking as a crime would nevertheless be a first step to cope with the reality of modern slavery.

Given the gravity of the crime and the absence of any other criminal jurisdiction willing or able of ending the current impunity enjoyed by traffickers in the face of voluntary or involuntary inaction by states and regional bodies, the debate on whether to establish a direct role for the ICC in prosecuting human traffickers is not only highly anticipated, but also very foreseeable.

[*] The authors would like to thank the following individuals, who as students at Harvard Law School contributed to the research and drafting of this article: Katerina Simonova, Jung Min (Jasmine) Shin, Samantha Lint, Emma Broches, Chetna Beriwala, Janet (Ji Soo) Park, Rebekah Carey, Isha Jain, Stephanie Gullo, Alexia Tizzano, Fraciah Muringi Njoroge, Sondra Anton, Celeste Kmiotek, and Matthew Farrell.

[1] Ms. Romina Morello holds the position of Regional Legal Advisor for the Americas at International Committee of the Red Cross. She contributed to writing this article in her capacity of supervising attorney for Harvard Law School’s Advocates for Human Rights. The views expressed herein are those of the author’s alone and do not reflect the views of the International Committee of the Red Cross.

[2] Ms. Frederika Schweighoferova is a human rights lawyer from Slovakia, working at Parliamentarians for Global Action (PGA) as the Director of the Campaign for the Universality and Effectiveness of the Rome Statute of the International Criminal Court System and Senior Legal Officer of the International Law and Human Rights Programme.