Human Trafficking as “Modern Slavery”: The Trouble with Trafficking as Enslavement in International Law
By
By
Cody Corliss[1]*
It ought to concern every person, because it is a debasement of our common humanity. It ought to concern every community, because it tears at our social fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I’m talking about the injustice, the outrage, of human trafficking, which must be called by its true name—modern slavery.[2]**
Former President Obama is not alone in equating human trafficking with modern slavery. Other U.S. presidents,[3] U.S. secretaries of state,[4] and United Nations officials[5] have made the same claim. As the U.S. State Department makes clear, “the United States considers ‘trafficking in persons,’ ‘human trafficking,’ and ‘modern slavery’ to be interchangeable umbrella terms that refer to both sex and labor trafficking.”[6]
International law, on the other hand, has not explicitly found that human trafficking,[7] a transnational crime, is equivalent to slavery.[8] Enslavement, which is an international crime, is recognized as a crime against humanity in customary international law,[9] identified as a legal obligation erga omnes by the International Court of Justice,[10] and is part of the peremptory rules of international law, the jus cogens.[11] Human trafficking has achieved comparatively less attention within international criminal law. Where acts of trafficking have been addressed within the context of an international judicial institution, the charged crime has been enslavement, not trafficking.[12] There has never been a criminal charge for “human trafficking” or “trafficking in persons” in an international judicial institution.[13] Rather than being an international crime, human trafficking has been classified as a transnational crime subject to domestic prosecution.[14]
The relationship between human trafficking and slavery in international law remains undefined. Moreover, the boundaries between human trafficking and slavery have long been blurred, beginning with the early campaigns to prevent the trafficking of women in Europe in the late nineteenth century. An uncertain relationship between the two crimes has continued into the present. For example, the 2000 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol)—the first international agreement to address all forms of human trafficking—defined the practice to include “slavery, or practices similar to slavery.”[15] In addition, during the drafting of Trafficking Protocol, delegates explicitly borrowed terms from a 1930 International Labor Organization Convention that addressed forced labor, a practice similar to enslavement.[16]
This Article seeks to determine the relationship between the acts of human trafficking and enslavement to determine whether human trafficking should be prosecuted as enslavement under international criminal law. The Article begins by examining the two prohibited crimes. Parts II and III of this Article explore the efforts to prohibit and define enslavement and human trafficking under international law, as well as efforts by trafficking opponents to link the two crimes.[17]
Part IV of the Article examines the relationship between human trafficking and slavery within international law as discussed in judgments at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the European Court for Human Rights (ECtHR) that have analyzed trafficking offenses in the context of enslavement charges or slavery prohibitions. As the Article demonstrates, the judicial decisions which have interpreted trafficking crimes in this context suggest an overlap of the terms that falls short of embracing trafficking and enslavement as interchangeable terms.
Part V examines the future of charging human trafficking crimes as crimes against humanity for enslavement at the International Criminal Court (ICC). The Statute of the International Criminal Court (ICC Statute) classifies enslavement as a crime against humanity while defining the crime in a manner that melds the traditional definition of slavery with an added provision that includes trafficking in persons. At first blush, such a definition in the ICC Statute suggests that human trafficking could be widely charged as a crime against humanity, but this Article explores the significant jurisdictional hurdles in charging such a crime. Ultimately, the Article considers various arguments in favor of reclassification of trafficking as enslavement but ultimately finds that the arguments to reclassify trafficking as enslavement fall short. Although human trafficking has similarities to enslavement and may constitute enslavement under certain situations, this Article concludes that human trafficking should remain distinct from enslavement and remain a transnational crime which is best prosecuted at the domestic level.
Compared to the crime of human trafficking, the effort to eradicate global slavery has enjoyed a considerably longer period of international support, with multilateral and international conventions featuring prohibitions on slavery and the slave trade beginning in the early 1800s.[18] Chattel slavery—the buying and selling of persons as legally recognized property—was abolished in international law and all countries in the Western Hemisphere and Europe by the end of the nineteenth century.[19] Moreover, the prohibitions against slavery and slave-related practices have achieved the level of customary international law and jus cogens status, with these prohibitions being some of the few human rights imperatives that attract virtually no principled dissent.[20]
The 1926 Slavery Convention, the first to define slavery, defined the term as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”[21] The Slavery Convention, signed by thirty-five state parties,[22] established a duty to criminalize the conduct and called on parties to “prevent and suppress the slave trade” with the ultimate goal of the “complete abolition of slavery in all its forms.”[23] Although some have critiqued the Slavery Convention’s definition of slavery as “bare-bones,”[24] the definition has achieved the status of customary international law.[25]
The Slavery Convention also addressed forced labor, recognizing that forced labor practices had the potential to become equivalent to slavery.[26] Under Article 5 of the Slavery Convention, where forced labor practices still survived, the parties to the Convention agreed to end the practice, to ensure that “adequate remuneration” would be provided and the practice would “not involve the removal of labourers from their usual place of residence.”[27] A caveat in the prohibition of forced labor practices remained: Forced labor could still be “exacted for public purposes.”[28]
A second convention, the 1930 Forced Labour Convention, adopted by the General Conference of the International Labour Convention, similarly sought to prohibit forced labor. Although this Convention included some exemptions,[29] it defined forced labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”[30] Adopted in response to the imposition of forced labor upon indigenous populations by colonial powers,[31] the Forced Labour Convention provided that each member of the International Labour Organization which ratified the Convention would undertake to “suppress the use of forced or compulsory labour in all its forms.”[32] A subsequent 1957 Abolition of Forced Labour Convention further solidified the prohibition against forced labor practices, with a more affirmative requirement that members take measures to “secure the immediate and complete abolition of forced or compulsory labour.”[33]
Most significantly for an understanding between the relationship between trafficking and slavery, the 1930 Forced Labour Convention provided a key foundation for the final definition of trafficking in the Trafficking Protocol. The definition of trafficking in the earliest drafts of the Trafficking Protocol focused on sexual trafficking to the exclusion of other contemporary trafficking situations, such as labor trafficking, debt bondage, or forced marriage.[34] During the drafting stage of the Trafficking Protocol, Australia and Canada proposed the incorporation of the understanding of forced labor as reflected in the 1930 Forced Labour Convention, with the explicit goal of expanding the Trafficking Protocol beyond its initial aim of protecting the trafficking of women and children.[35] The Australian and Canadian proposal was successful, thereby expanding the definition while also intertwining a connection between human trafficking and forced labor as a form of slavery.
The 1956 Supplementary Slavery Convention affirmed and augmented the definition in the 1926 Slavery Convention. “Slavery” continued to be defined as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” while “slave” was defined as “a person in such condition or status.”[36] As some have argued, such a definition encompasses both de jure and de facto slavery.[37]
Although early treaties ratified to end human trafficking had their origins in efforts to eliminate sexual trafficking, and particularly the sexual trafficking of white women, the offense of human trafficking today refers to any number of situations. In addition to sex trafficking, individuals are trafficked to serve as forced labor in factories or agricultural settings, into domestic servitude, forced marriages, and for use in armed conflict.[38]
The boundaries between slavery and human trafficking blurred in the very first international agreement to combat human trafficking, an agreement whose very title invoked slavery. The 1904 International Agreement for the Suppression of the White Slave Trade was designed to combat the trafficking and voluntary migration of white European women to Arab and Eastern states to serve as concubines or prostitutes.[39] Although the term “white slave” had been used in the early nineteenth century to describe English factory workers toiling in brutal conditions,[40] the term fell out of use until its resurrection by Victor Hugo in 1870.[41] While the term slave appeared in the United States’ White-Slave Traffic Act’s title, the offense itself was more akin to our modern understanding of sex trafficking.
Moreover, the 1910 White-Slave Traffic Agreement limited its concern to one gender and one race, namely white women,[42] a limitation that would presage future understandings of human trafficking.[43] Although Hugo had been explicit that slavery only remained a problem for white women,[44] delegates to the Madrid Conference in 1910 recognized and questioned the limiting nature of the term white slave.[45] Delegates acknowledged that the term failed to capture the plight of nonwhite women, but, following a debate emphasizing the term’s then-widespread use, delegates decided to keep white slave in the Agreement’s title.[46]
Ultimately the fledging United Nations would take up the issue of sex trafficking with the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.[47] The 1950 Convention, meant to supersede earlier treaties, including those ratified in 1904 and 1910,[48] was the first to address trafficking in gender-neutral terms, and it eliminated a requirement that trafficking needed to be international in character.[49]
An international agreement that addressed all forms of human trafficking did not emerge until late 2000 when the U.N. General Assembly adopted the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Trafficking Protocol, as a supplement to the 2000 U.N. Convention Against Transnational Organized Crime.[50] The United States, which was concurrently developing its domestic legislation on trafficking, had the greatest impact on international consensus on the definition of the term.[51] When delegates were negotiating the Trafficking Protocol, the United States made clear its interest in minimizing the differences between the definition it developed domestically and the one that the Trafficking Protocol would apply internationally.[52] The United States’ Trafficking Victims Protection Act (TVPA) was ultimately signed into law on October 11, 2000, approximately two months before the General Assembly adopted the Trafficking Protocol.[53]
The Trafficking Protocol established what has become the generally accepted international definition of human trafficking.[54] The definition in Article 3(a) of the Trafficking Protocol reflects the breadth of human trafficking practices:
[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of 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. Exploitation shall include, 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.[55]
In addition to defining human trafficking in Article 3(a) above, Article 3(b) of the Trafficking Protocol states that “[t]he consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) [the above definition] of this [A]rticle shall be irrelevant where any of the means set forth in subparagraph (a) have been used.”[56] Such emphasis on the consent of the victim in Article 3(b) reinforced the notion that human trafficking is an act forced upon the victim, or carried out by coercion or deception.[57]
A comparison between the definition of trafficking in the Trafficking Protocol and the definition of slavery in the Slavery Convention further illustrates the scope of Article 3. The definition of trafficking is, in essence, three parts: (1) an action (recruitment, transport, transfer, harbor or receipt of a person); (2) achieved through threat, use of force, coercion, deception, or fraud; and (3) for the purpose of exploitation.[58] As the definition in the Trafficking Protocol makes clear, slavery or practices similar to slavery are possible forms of exploitation, but not the only ones.[59] Slavery, on the other hand, is defined by the condition of ownership: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”[60] As such, the definition of slavery under customary international law meets the criteria of trafficking, but trafficking as defined under the Trafficking Protocol will not always rise to the level of slavery.
The emphasis on the consent of the victim in Article 3(b) of the Trafficking Protocol also served a second purpose, namely to distinguish trafficking from smuggling.[61] Although the two terms are often confused and were previously used interchangeably,[62] a separate protocol, the Protocol Against the Smuggling of Migrants by Land, Sea and Air, defines smuggling as “[t]he procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident.”[63] As the U.S. Immigration and Customs Enforcement explains, where trafficking is exploitation-based, smuggling involves a service—transportation or fraudulent documents—provided to an individual voluntarily seeking illegal entry into a foreign country.[64]
The consent element reflects the victim of both acts: trafficking is a crime against the trafficked victim, where smuggling is a crime against the state.[65] The language within the Smuggling Protocol reaffirms this distinction. The Smuggling Protocol is explicit that migrants are not liable to criminal prosecution for having been smuggled.[66] Still, rather than being labeled as “victims” in the text of the Smuggling Protocol, smuggled persons are described as “migrants” or “object[s]” of smuggling.[67] In practice, however, the distinction between trafficking and smuggling can often be blurred, with acts of smuggling transforming into acts of trafficking.[68]
Enslavement is a crime against humanity under the Nuremberg Charter,[69] the Tokyo Charter,[70] the statutes of ad hoc tribunals, and the ICC. The prohibition against enslavement and its place as a crime against humanity are unquestioned in international law today. As international
law decisions below demonstrate, however, the role of trafficking as a
form of enslavement—thereby constituting a crime of humanity in its own right—remains undefined.
In 2001, the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted Dragoljub Kunarac and Radomir Kovač for, among other crimes, enslavement as a crime against humanity for crimes they committed in the Bosnian town of Foča during the conflict in the former Yugoslavia.[71] Kunarac was convicted of enslavement for depriving two women of any control over their lives and treating them as property.[72] Kovač was convicted for detaining two victims in his apartment for four months, where he imprisoned the girls, exercised de facto powers of ownership, and treated the victims as property.[73]
The enslavement charge required an act of judicial interpretation on the part of the Trial Chamber as the Statute that created the tribunal did not define “enslavement.”[74] Relying upon the definition of slavery in the 1926 Slavery Convention, the Trial Chamber found that enslavement as a crime against humanity was the “exercise of any or all of the powers attaching to the rights of ownership over a person.”[75] The Trial Chamber found that the actus reus of the crime “is the exercise of any or all of the powers attaching to the right of ownership over a person,” while the mens rea is “the intentional exercise of such powers.”[76]
The Kunarac Appeals Chamber agreed that the Trial Chamber’s definition was not overly broad and properly reflected customary international law of enslavement at the time the crimes occurred.[77] Moreover, the Appeals Chamber accepted the Trial Chamber’s finding that the concept of slavery had evolved beyond chattel slavery to encompass various forms of slavery based upon the exercise of any or all of the powers attaching to the right of ownership.[78] Ultimately, the Appeals Chamber determined that “whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement,” approvingly citing the Kunarac Trial Chamber’s list of factors to determine whether enslavement was committed.[79] Such factors include 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 labor.[80] In the paragraph preceding that finding, the Trial Chamber also noted “[f]urther indications” of enslavement, which included “the exaction of forced or compulsory labour or service, often without renumeration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.”[81]
The Kunarac Trial Chamber’s language suggests that human trafficking, while not necessarily enslavement in itself, is an indication of enslavement. Still, the Appeals Chamber’s indicia of enslavement seemed to fuse elements of enslavement and trafficking. Notably, the Kunarac Appeals Chamber’s further indicia of enslavement largely fall within the legal definition of human trafficking as defined by the Trafficking Protocol, including the “threat or use of force or coercion”, deception, “abuse of power or of a position of power or of a position of vulnerability” for exploitation.[82] Exploitation under the Trafficking Protocol includes sexual exploitation, forced labor practices, slavery, or practices similar to slavery.[83]
Like the Trafficking Protocol, the Kunarac judgments negate the consent of the victim. As discussed previously,[84] the Trafficking Protocol stated that the consent of the victim to trafficking is “irrelevant” where the purpose of the act is exploitation.[85] The Kunarac Trial Chamber found that consent to enslavement is “often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions.”[86] The Kunarac Appeals Chamber noted that consent may be relevant to determining whether the Prosecutor had established the elements of the crime relating to the exercise of powers attaching to ownership, but stated that “circumstances which render it impossible to express consent may be sufficient to presume the absence of consent.”[87]
Article 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) prohibits slavery, servitude, and forced or compulsory labor, but the text does not explicitly prohibit human trafficking.[88] In two recent cases, the court examined instances of human trafficking and the connection between that crime and Article 4 of the Convention. In doing so, the decisions have shaped—and, at the same time, obscured—the relationship between slavery and trafficking.
The European Court of Human Rights (ECtHR) considered the bounds of slavery and servitude in Siliadin v. France, and ultimately suggested a narrow interpretation of the concept of slavery.[89] The case involved a Togolese minor who had gone to France with the understanding that, after completing her work, she would be remunerated with an air ticket, her immigration status would become regularized, and she would be sent to school.[90] Eventually, Siliadin was “lent” to Mr. and Mrs. B, for whom she worked for fifteen hours per day, with no days off, for several years, and without receiving wages.[91] In the French courts, Mr. and Mrs. B were convicted for having obtained the services of a vulnerable individual, a criminal offense under the French Criminal Code, but the two were acquitted of the charge of exposing an individual to working conditions incompatible with human dignity.[92]
The applicant argued that France violated Article 4 of the European Convention on Human Rights because French criminal law did not contain specific criminal provisions on slavery, servitude, or forced or compulsory labor, thereby flouting France’s positive obligations under the Convention.[93] The ECtHR agreed that France had violated its positive obligations under the European Convention on Human Rights,[94] but it ultimately distinguished the conditions of slavery and servitude, denying that the applicant was exposed to slavery.[95] Citing the definition under the 1926 Slavery Convention as the “classic” definition of slavery, the ECtHR found that, although the applicant was denied her personal autonomy, she was not held in slavery in “the proper sense” because Mr. and Mrs. B. did not exercise a genuine right of legal ownership over the girl, thus reducing her to the status of an object.[96] Instead, the ECtHR found that the applicant had been held in servitude. While the court recognized that servitude was “linked with the concept of ‘slavery,’” it defined servitude as “an obligation to provide one’s services that is imposed by the use of coercion.”[97] The Siliadin decision did not address trafficking explicitly,[98] but the facts of the case suggest that the applicant was a victim of trafficking. Moreover, the ECtHR’s language that obtaining services through coercion was akin to servitude suggests that the trafficking was servitude, but not slavery.
The ECtHR’s interpretation of slavery in Siliadin is considerably narrower than the ICTY’s Kunarac decision. Unlike Kunarac, the court in Siliadin seemed loath to move beyond an understanding of slavery from the 1926 Slavery Convention. As Ariela Gross and Chantal Thomas note, however, such a line of logic makes the 1926 Slavery Convention largely irrelevant since “de jure slavery is now abolished nearly everywhere.”[99]
Although the ECtHR did not explicitly determine whether trafficking was slavery or servitude in Siliadin, the issue of human trafficking and the scope of Article 4 of the European Convention on Human Rights would be directly considered in the 2010 Rantsev v. Cyprus and Russia decision. Because human trafficking was not explicitly proscribed under Article 4, the court in Rantsev would need to determine if human trafficking was covered under the state’s positive requirements under Article 4’s prohibitions of slavery, servitude, and forced and compulsory labor.
Rantsev concerned the mysterious death of a Russian national who had travelled to Cyprus to work as an “artiste,” a term synonymous with prostitute.[100] Shortly after beginning her work at a cabaret, Ms. Rantsev had quit her job and stated her intent to return to Russia.[101] A week later, the owner of the cabaret, where Ms. Rantsev formerly worked, learned that she was at a discotheque. The cabaret owner promptly went to the establishment, collected her, and took her to the police station to declare her an “illegal immigrant.”[102] Rather than arresting Ms. Rantsev, however, the police returned her to the care of the cabaret owner.[103] The next morning, Ms. Rantsev was found dead on the street below the balcony of the apartment where she had been returned, having apparently tried to escape from the apartment’s balcony.[104]
The victim’s father brought a case to the ECtHR that stated that his daughter had been a victim of trafficking. The application alleged that, since neither Cyprus nor Russia had specific criminal provisions addressing human trafficking, both nations had failed their positive obligations under Article 4 of the European Convention on Human Rights. The ECtHR agreed. In its decision, the court expanded the scope of Article 4 to include human trafficking, noting that the European Convention on Human Rights is a “living instrument which must be interpreted in the light of present-day conditions.”[105]
The court’s analysis seemed to recognize that human trafficking applied many of the same conditions as slavery while simultaneously refusing to explicitly take such a position. For example, the Rantsev court recounted trafficking in ownership terms, bringing it in line with the earlier Siliadin decision that equated slavery to ownership:
The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the rights of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of the victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions.[106]
Moreover, the ECtHR went on to recognize the Trafficking Protocol and the Cypriot Ombudsman positions that trafficking was modern slavery.[107]
Even though its language suggested that trafficking represented a form of ownership akin to slavery, the Rantsev court ultimately declined to reach that finding:
There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the convention in the light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery,” “servitude” or “forced and compulsory labor.” Instead, the Court concludes that trafficking itself . . . falls within the scope of Article 4 of the Convention.[108]
While human trafficking now falls under Article 4 of the European Convention on Human Rights, under which category it falls (slavery, servitude, forced and compulsory labor) remains undetermined.
The reluctance of the ECtHR to classify trafficking under an existing prohibition in Article 4 of the Convention seems sound when one returns to the definition of trafficking in the Trafficking Protocol. According to the definition in the Protocol, trafficking may take different forms of exploitation, including slavery, servitude, and forced labor.[109] Thus, the ECtHR was being asked to classify trafficking, an umbrella term, into one of three potential subsets, any of which could qualify as a form of trafficking under the Protocol. The ECtHR understandably declined to make such a finding. Instead, by finding that trafficking fell within the scope of Article 4 generally without stating precisely where it fell, the ECtHR prohibited trafficking without compartmentalizing it under slavery, servitude, or forced or compulsory labor.
The Rantsev decision has been hailed as significant for its expansion of the scope of Article 4 to encompass human trafficking, but also disappointing for its ultimate circumvention of a finding on the relationship between trafficking and slavery.[110] While some scholars have argued that the decision overruled the narrow decision of slavery in Siliadin,[111] the court’s language seems clear that it was not making such a pronouncement. As other scholars have noted, a precise relationship between slavery and human trafficking has yet to be delineated.[112]
The Rome Statute (ICC Statute), which established the ICC, provides the clearest guidance on the prosecution of human trafficking as a form of enslavement as a crime against humanity.[113] Article 7, which enumerates the crimes of humanity under the ICC Statute, defines “enslavement”: “the exercise of any or all 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.”[114]
The first part of the definition in the text reflects the traditional understanding of slavery as ownership over another human as defined in the 1926 Slavery Convention, but the latter singles out trafficking as one situation where such ownership power may be exercised. Interestingly, only trafficking is listed in the definition. The trafficking clause proposed in the ICC Statute initially spoke of “deprivation of physical liberty” and “for the purpose of sexual exploitation” while later proposals included references to “slavery-related practices” and “forced labour.”[115] All were ultimately eliminated.[116]
The ICC’s Elements of Crimes suggests a broader understanding of enslavement to include situations where the “perpetrator exercised any or all of the powers attaching to the right of ownership . . . such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.”[117] A footnote adds:
It is understood that such deprivation of liberty may, in some circumstances, including exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.[118]
Thus, where the first part of the definition of enslavement in Article 7 of the ICC Statute suggests a view of enslavement akin to the 1926 Slavery Convention, the latter clause in the definition and the Elements of Crimes imply a broadened understanding of the term.[119] In addition, the Office of the Prosecutor has referenced the Trafficking Protocol as an interpretive guide for the crime of human trafficking under Article 7 of the ICC Statute, a further indication of the importance of the Trafficking Protocol to understand trafficking and its relationship to enslavement under international law.[120]
Although the language of the ICC Statute indicates that trafficking could be a form of enslavement under Article 7, a number of jurisdictional requirements mean that, in practice, human trafficking is very unlikely to be prosecuted as a stand-alone charge of enslavement in the ICC. If trafficking is to be charged as enslavement at the ICC, a charge will likely come as one or more counts within a multi-count prosecution and only where the ICC’s jurisdictional requirements are met.[121]
While the language of Article 7(2)(c) suggests a path to prosecute human trafficking in the ICC, the chapeau elements, which must first be met for any crime against humanity charge, present a formidable barrier in a trafficking case. All crimes against humanity require proof that they were committed “as part of a widespread or systematic attack directed against a civilian population”[122] In addition, for the ICC to have jurisdiction, the conduct must involve “the multiple commission of acts” that were committed “pursuant to or in furtherance of a [s]tate or organizational policy to commit such attack.”[123]
Significantly, trafficking is typically conducted by private actors operating outside state control.[124] Still, traffickers operating outside state control could conceivably commit a crime against humanity pursuant to state or organizational policy.[125] The ICC Pre-Trial Chamber, finding that private organizations could commit a crime against humanity pursuant to state or organizational policy, established a non-exhaustive list of factors to be considered:
(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 the 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 above criteria.[126]
Although a private criminal organization might theoretically face criminal liability for trafficking crimes before the ICC, the reach is unquestionably limited.[127] The proscribed trafficking would need to be widespread or systematic, conducted pursuant to government or organizational policy, and with the criminal organization largely operating pursuant to a number of indicating factors. Very few human trafficking situations would meet the ICC’s crimes of humanity chapeau requirements.
In addition, a state’s willful failure to take measures to stop a crime against humanity may indicate a de facto policy to further the crime.[128] Here, the awareness of the crimes makes the state complicit if the intent behind the inaction is to further the attack, rather than a state’s inability to prevent it.[129] In such a circumstance, however, criminal culpability before the ICC could fall upon the leaders of the state who were complicit in the crime in addition to private nonstate actors who committed the trafficking.[130]
As the ICC Statute makes clear, the ICC does not operate on the basis of primary jurisdiction.[131] Under the principle of complementarity, the responsibility for investigating and prosecuting perpetrators for crimes within the ICC’s jurisdiction first falls to domestic legal systems.[132] Jurisdiction is only granted to the ICC when a country with primary competency is unwilling or unable to investigate or prosecute the crime at hand, or if a country undertakes investigations or prosecutions that are not genuine.[133]
The complementarity principle seems to run into two competing issues for human trafficking. On the one hand, the Trafficking Protocol requires state parties to adopt legislation criminalizing human trafficking and to prosecute offenders.[134] At the same time, many developing nations or countries immersed in or emerging from conflict typically lack the resources to effectively detect and prosecute human trafficking, even where it is prohibited by law.[135] Consequently, the states where trafficking is most likely to flourish are also the states with the fewest resources to combat the crime.
The ICC Prosecutor is required to consider the “gravity of the crime” when deciding whether to open a formal investigation.[136] Consequently, the ICC’s gravity requirement serves as a statutorily required threshold below which the ICC should not exercise jurisdiction.[137] Under the circumstances, scholars have suggested that a trafficking case would be unlikely to reach the gravity threshold, and that a trafficking-related charge before the ICC would come only in conjunction with other violations of international law.[138]
Two recent decisions in the ICC cast light on the Court’s gravity analysis, but also suggest a more nuanced understanding of gravity, and particularly with respect to crimes that have discriminatory victimization. In the first, the ICC Prosecutor reaffirmed the decision not to proceed with an investigation into the events surrounding a May 31, 2010, incident where members of the Israeli Defence Forces (IDF) killed ten individuals aboard the Mavi Marmara, one of several vessels which aimed to break an Israeli blockade of Gaza.[139] In addition to the ten fatalities, the incident resulted in the wounding of up to fifty-five people and outrages upon the personal dignity of potentially many others. Although the Prosecutor recognized that there was a reasonable basis to believe that war crimes had been committed, the Prosecutor determined that the fact pattern indicated that no potential case was sufficiently grave to be admissible before the Court.[140] Specifically, the Prosecutor noted a number of factors that were considered in reaching the decision, including the difficulty identifying the specific perpetrators; that the ten individuals who were alleged to have been willfully killed were not necessarily killed by the same one or more perpetrators, with similar disparate perpetrators for those who had been alleged to have been injured or subjected to outrages in personal dignity; the unique fact pattern where those were killed or injured were proximate to the passengers’ violent resistance to the IDF boarding of the ship; and that no information suggests that medium or high-level IDF members who did not participate in the boarding operation were implicated in a plan or policy to commit the crimes.[141] The Prosecutor also gave considerable weight to the limited scale of the victimization in the situation and that no countervailing factors offset the limited numbers.[142] Finally, the Prosecutor noted that the fact pattern of the alleged crimes would likely require a series of prosecutions of even more confined scope, where considerations of gravity would be even more acute.[143]
Less than three months later, the Appeals Chamber affirmed the
Pre-Trial Chamber’s determination that the case against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud for his role in crimes committed during an Islamist group’s occupation of Mali had sufficient gravity to proceed. In Al Hassan, the Prosecution’s case alleged ten direct victims of forced marriage, sexual slavery and rape, twenty-two direct victims of torture and other ill treatment, sixty direct victims of the passing of sentences without due process, the destruction of ten protected buildings, and the crime of persecution which affected the entire population of the Timbuktu region of Mali.[144] The Appeals Chamber also determined that the Pre-Trial Chamber was correct to weigh additional factors in finding suitable gravity, including the nature and extent of the charged crimes, the repercussions of them on the direct victims and the population of the region as a whole, the discriminatory motive of the alleged crimes on religious or gender-based grounds, the vulnerability of certain victims, that the crimes were part of a widespread and systematic attack against the civilian population, and the significant role that the Prosecutor attributes to Al Hassan.[145] The Prosecutor’s decision not to open an investigation in the Comoros case related to the Mavi Marmara, and the Appeals Chamber decision in Prosecutor v. Al Hassan recognized that a gravity assessment must be conducted on a case-by-case basis, using a holistic evaluation of both quantitative and qualitative criteria.[146]
Interestingly, both decisions recognized that discriminatory victimization (or lack thereof) would be considered in an analysis of gravity, indicating that crimes with a gender-based component could be deemed graver. These decisions suggest that a trafficking case—and particularly ones involving sexual trafficking—could meet the gravity threshold provided the crimes also meet the chapeau elements of a crime against humanity.
One string of trafficking crimes that would likely meet the chapeau elements for crimes against humanity, for example, are the arrests as a result of Operação Garina.[147] Charged in Brazil rather than in the international criminal context, the Operação Garina arrests occurred following a $45 million, ten-year operation where an international gang orchestrated the sexual trafficking of approximately 1,500 women from São Paulo nightclubs to work as prostitutes for affluent clients in Angola.[148]
After accepting the offers and arriving in Angola, traffickers stripped the women of their freedoms, forced them to have unprotected sex with foreign clients, and offered the victims fake anti-AIDS cocktails.[149] In addition to criminal gangs in Brazil, the sexual trafficking operation had ties to high level government officials in Angola, including General Bento dos Santos Kangamba, a relative of Angola’s President, José Eduardo dos Santos.[150] Such a crime, if charged as an international crime, would likely constitute a crime against humanity given the systematic nature of the criminal operation,[151] the large number of victims, and the role of high level political figures. Moreover, based on the Al Hassan decision, Operação Garina would have sufficient gravity for the ICC to exercise jurisdiction.
Although international criminal law decisions have suggested an overlap between enslavement and trafficking, the two terms are not synonymous. Trafficking has three components to its definition under the Trafficking Protocol: (1) an action of recruitment, transfer, or receipt of a person; (2) conducted by threat, use of force, coercion, fraud or deception, or other means; and (3) for the purpose of exploitation, including the practice of slavery or practices similar to slavery. The definition of enslavement, which focuses solely on the powers attaching to ownership, is decidedly narrower. As the Trafficking Protocol definition suggests, slavery is a potential end purpose and result of trafficking, but it is not the only one.[152] Other trafficking situations include sexual exploitation, prostitution of others or servitude, and although such crimes are unquestionably heinous, they are not enslavement. Only a small percentage of trafficking victims qualify as slaves.[153] The common description of trafficking as “modern slavery” reflects this distinction, a seeming nod that trafficking is different from the traditional understanding of slavery as defined in the 1926 Slavery Convention.[154]
A number of scholars have advocated the expansion of trafficking as enslavement, seeking to redefine trafficking as a crime against humanity.[155] As Harmen van der Wilt has persuasively argued, however, merely expanding the definition of crimes against humanity to include trafficking weakens the power and understanding of the category of crimes that encompass crimes against humanity, a designation specifically created in the aftermath of the Holocaust.[156] Moreover, as this Article indicated previously, classifying all trafficking acts as crimes against humanity would require a widespread reinterpretation of the chapeau elements in order for most trafficking crimes to qualify. If one specifically seeks to incorporate trafficking as enslavement at the ICC, one runs into additional issues of gravity and complementarity. Only a small number of trafficking crimes are likely to meet these elements.
Others who seek to define trafficking as slavery suggest that elevating trafficking to an international crime will enable states to better prosecute it.[157] If human trafficking is classified as a form of slavery, for example, it becomes an international crime subject to universal jurisdiction.[158] Universal jurisdiction, which has its roots in attempting to prosecute piracy committed at sea, allows any nation to prosecute foreign offenders for certain heinous acts committed abroad against nonnationals.[159] Even advocates of the proposal acknowledge that the creation of universal jurisdiction is unlikely to substantially increase prosecution.[160] In addition, many trafficking crimes—by some estimates more than 75%—do not involve the crossing of a national border.[161] Although universal jurisdiction would allow prosecution even where trafficking occurred wholly within the borders of one country, one nation investigating and prosecuting a crime that occurred solely in another jurisdiction seems increasingly unlikely, particularly as trafficking is a crime that occurs in all nations throughout the world.
Advocates also point to the additional policy benefits of defining trafficking as slavery, noting that its reclassification will emphasize the gravity of the crime while encouraging states to fight it.[162] Such an argument understates the significant role that the Trafficking Protocol has played in nations developing their own domestic laws criminalizing trafficking.[163] To date, 175 parties have ratified the Trafficking Protocol, and 168 nations have passed domestic legislation criminalizing human trafficking pursuant to the Protocol’s framework.[164] States now have overwhelmingly enacted antitrafficking laws built upon the Trafficking Protocol’s definition and the Protocol’s mandate for criminalization, and programs to prevent and combat trafficking.[165] Finally, outside the realm of international law, the United States provides an added stick through the TVPA, which allows for sanctions for any nation which does not comply with the minimum standings for the elimination of trafficking and fails to make a significant effort toward compliance.[166]
Human trafficking has been cast as a type of slavery since the very first international attempts to end trafficking in the nineteenth century. Even recently, governments and foreign leaders have called trafficking “modern slavery.” International judicial organs, such as the ICTY and ECtHR, have not followed those calls. Instead, the ICTY in Kunarac and the ECtHR in Rantsev v. Cyprus and Russia have noted the overlapping elements between the two crimes. As such, certain conduct will satisfy the elements of both trafficking and enslavement, but the two crimes remain distinct. The ICC Statute suggests that trafficking may constitute enslavement, a crime against humanity, but the crime against humanity chapeau elements and the court’s jurisdictional and gravity restrictions suggest that, standing alone, few trafficking crimes will be charged as crimes against humanity under the ICC’s enforcement regime.
Unquestionably, human trafficking is a global and depressing problem, with an estimated 24.9 million global victims.[167] Reclassifying human trafficking as slavery may seem sensible upon first impression, given the heinous nature of both crimes and their overlapping relationship. Further analysis suggests that international law has been prudent to resist the calls to reclassify trafficking as enslavement. Under the status quo, trafficking can constitute the crime of enslavement in certain situations, but not all victims of trafficking can be considered slaves. Recasting trafficking as enslavement will create no new avenues to prosecution for most trafficking crimes, but it could bring a number of drawbacks. Such a redefinition could weaken the impact of crimes against humanity generally, strain investigative and prosecutorial resources, and lead to questions of jurisdiction. As a result, the prosecution of human trafficking crimes is better served if it remains distinct from the crime of enslavement and if it remains a transnational crime prosecuted at the domestic level.
To identify a practice as slavery does more than raise the political and emotional ante. It also brings a very special kind of legal force to bear, because the prohibition on slavery is recognized as a rule of customary international law and regularly is identified as a legal obligation erga omnes and as part of jus cogens.
Anne T. Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 Va. J. Int’l L. 789, 798 (2009) (emphasis added); see also Denise Brennan, Fighting Human Trafficking Today: Moral Panics, Zombie Data, and the Seduction of Rescue, 52 Wake Forest L. Rev. 477, 485 (2017) (arguing that “[w]hen trafficked persons are equated with modern-day slaves, when only their victimhood is highlighted through a kind of voyeuristic catalogue of abuse, then any and all actions to help them seem justified”). ↑
The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.
1926 Slavery Convention, supra note 19, art. 5. As Bassiouni writes, “The implication in Article 5 is that forced labor is not identical in its invidiousness to slavery; the latter is completely unacceptable, while the former is merely undesirable.” Bassiouni, supra note 16, at 468. ↑
(a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or where the person induced to perform such an act has not attained 18 years of age; or (b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
Gallagher, supra note 49, at 23. See generally, Trafficking Victims Protection Act, 22 U.S.C. § 7101 (2018) (describing the purposes and findings of Congress in enacting the legislation). ↑
The requirement of “a State or organizational policy” implies that the attack follows a regular pattern. Such a policy may be made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be formalized. Indeed, an attack which is planned, directed or organized—as opposed to spontaneous or isolated acts of violence—will satisfy this criterion.
Case No. ICC-01/05-01/08, Decision on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 81 (June 15, 2009), https://www.icc-cpi.int/CourtRecords/CR2009_
04528.PDF [https://perma.cc/XV3T-C3TE]; see also Prosecutor v. Ruto, Case No.
ICC-01/09-01/11, Decision on the Confirmation of Charges, ¶¶ 184–85 (Jan. 23, 2012), https://www.icc-cpi.int/CourtRecords/CR2012_01004.PDF [https://perma.cc/F52T-94QY] (finding that “organizations not linked to a State may . . . carry out a policy to commit an attack against a civilian population”). ↑
A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such an attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.
ICC Elements of Crimes, supra note 115, at 9 n.6. ↑