HUMAN TRAFFICKING AND THE ROME STATUTE

OF THE INTERNATIONAL CRIMINAL COURT

CLARE FRANCES MORAN1

Abstract: The case for extending the reach of the Rome Statute to the crime of human trafficking has
not yet been made in detail. The brutality which occurs when human beings are trafficked by criminal
gangs is of an equally egregious nature as the other crimes covered by the Rome Statute and yet it does
not fall within the remit of the International Criminal Court. Such trafficking may also fall outwith the
definition of slavery as a crime against humanity, particularly given the State policy threshold set by the
Statute. This paper seeks to explore the viability of the inclusion of human trafficking as a discrete
international crime within the Rome Statute as a response to this loophole.

Keywords: Human Trafficking, Human Rights, International Criminal Law, International Criminal
Court

Summary: I. INTRODUCTION; II. THE INTENTION TO INCLUDE HUMAN TRAFFICKING WITHIN THE

STATUTE; III. INCLUDING CRIMINAL GANGS WITHIN THE ICC’S JURISDICTION – ORGANISATIONS,
WIDESPREAD OR SYSTEMATIC ATTACKS AND COMPLEMENTARITY; IV. HUMAN TRAFFICKING AS A CORE
CRIME: USING THE ‘GENOCIDE’ THRESHOLD AS A TEST; V. CONCLUSION.

I. INTRODUCTION

The Slavery Convention, which entered into force on 9 March 1927, was the
first international agreement to outlaw, without discrimination based on gender or race,
the practice of exercising ‘any or all of the powers attaching to the right of ownership’,
as held in Article 1(1), over an individual. This internationally agreed definition of
slavery has endured, being referenced in preference to the previous international
agreements in this area which defined slavery as being the sexual exploitation of
Caucasian women and girls. Indeed, subsequent regional and international human rights
and criminal law instruments affirm the prohibition, without qualification or limitation,
of the practice of slavery. The age of the instruments would give the impression that the
problem of slavery has been eradicated, without need for further legal intervention.
However it would appear that it has simply evolved. Slavery’s modern incarnation
(UNODC, 2009: 6) human trafficking, is termed far more expansively than its ancestor.

1
Teaching Fellow, DBS Law Division, University of Abertay Dundee, UK (C.Moran@abertay.ac.uk).

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592
32
 CLARE FRANCES MORAN

The ‘recruitment, transportation, transfer, harbour or receipt of persons’ however

coercively or forcibly that may be done, financial incentives included, is considered
trafficking, where the aim is for ‘a person having control over another person, for the
purpose of exploitation’ (UN Convention 2000: article 3(a)). Exploitation is then
defined expansively. The myriad instruments in existence which attempt to eliminate
the exploitative domination of one person over another, and most recently the Protocol
to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children, demonstrate a continual and collective effort to eradicate the bane of slavery,
and the newer, more expansive definition of trafficking, from societies throughout the
world. However, the current approach in this area is to treat the problem as
transnational, in that countries should cooperate and deal with prosecutions on a
national basis (UN Convention 2000: article 1) rather than to prosecute on an
international basis. The instruments demonstrate a willingness to approach the problem
collectively, but the concept of collective action through an existing single entity
(Cooper, 2011) has not fully been discussed by either the relevant organisations or the
literature in this area.

Human trafficking is clearly a violation of both international human rights

standards which apply to States and international criminal law, but despite this
seemingly obvious gap, the case for extending the reach of the Rome Statute of the
International Criminal Court (hereafter, the ‘Rome Statute) in the particularly critical
area of human trafficking does not seem to have been made in any great detail as of yet.
The International Criminal Court (hereafter, ‘ICC’), under article five of the Rome
Statute, has jurisdiction over ‘the most serious crimes of concern to the international
community as a whole’ (Rome Statute: article 5) and the same article creates a degree of
priority for the prosecution of such violations. However it is arguable that the brutality
which occurs when human beings are trafficked for the purposes of sexual exploitation
by criminal gangs is of an equally egregious nature as those covered by the Rome
Statute and yet does not fall within the remit of the ICC. The scale of the problem is
equally earth-shattering: the number of actual victims is thought to far outweigh the
number of identified victims and globally, figures range from 800,000 (Wyler and
Syskin, 2010: 3) to 2.5million (Belser, 2005: 3) people who suffer as a result of being
trafficked each year. The purpose of this work, therefore, is to determine the potential of
extending the reach of the Rome Statute in this way. As part of the general prohibition
on slavery in international law, (Rome Statute: article 7(1)(c), note) the Rome Statute
has already characterised slavery as a crime against humanity, inclusive of human
trafficking. However, this is only where slavery is conducted as part of a State policy
(Rome Statute: article 7(2)(a)), effectively as a ‘widespread or systematic attack’ (Rome
Statute: article 7(1)). Gangs which operate human trafficking rings may not be tried
before the ICC. This limitation prevents the organisational policies of criminal gangs
which conduct human trafficking from being the subject of prosecution at the ICC.

This paper will therefore seek to argue that human trafficking should be
included within the jurisdiction of the ICC as a core international crime rather than a
crime against humanity, using the threshold requirements of the crime of genocide as a
theoretical legal model, without hinging prosecution on the requirement that the crime

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 33
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

be ‘committed as part of a widespread or systematic attack.’ This does not imply that
there is any analogy between the crimes, rather that the threshold test may also be useful
in the context of human trafficking. The study is one of theory, exploring the black
letter law in the Rome Statute and other relevant international instruments and
uncovering the theory at the heart of these laws. This work will firstly explore the
intention to include human trafficking as a crime within the jurisdiction of the court,
examining the limitations incumbent on addressing the issue via the framework of
crimes against humanity. The second issue will be to understand whether the idea of an
‘organizational policy’ within the Rome Statute should extend to the conduct of
organised criminal gangs. The last part will explore the argued suitability of establishing
human trafficking as a core crime, within the jurisdiction of the ICC under article five
and will use the theoretical model of genocide to determine the viability of this
proposition. The aim is not to compare genocide and human trafficking, but rather to
apply the court’s approach to determining jurisdiction over a charge of genocide to the
idea of human trafficking. As a matter of limitation, the subject matter of this paper will
comprise only acts of human trafficking which are unrelated to internal or international
conflict, the main motivation in those cases being that of profit.

II. THE INTENTION TO INCLUDE HUMAN TRAFFICKING WITHIN THE STATUTE

The focus of this part to the work is to examine the argued intention to include
human trafficking as part of the Rome Statute, viewing it as a form of modern slavery.
Slavery has been characterised as a crime against humanity within the Rome Statute
(Rome Statute: article 7(1)(c)), and human trafficking has been included as part of the
definition of enslavement (Rome Statute: article 7(2)(c)). The potential of this effort
will be examined, and the issues which arise in classifying human trafficking as a crime
against humanity will be also explored.

The ICC under the Rome Statute has jurisdiction over ‘the most serious crimes
of concern to the international community as a whole,’ (Rome Statute: preamble) giving
it authority to try the individual accused of the crime (Rome Statute: article 1). The
caveats to such jurisdiction include that the individual should be a national of a State
Party to the treaty (Rome Statute: Article 12(2)(b)) or that the territory, including
vessels and aircraft in which the crime was committed was that of a State Party (Rome
Statute: Article 12(2)(a)) to the Rome Statute, or that the State in which the crime was
committed permits the ICC to exercise jurisdiction over the proceedings (Rome Statute:
Article 12(3)). The crimes themselves are specified in article five of the Rome Statute,
which states that the ICC shall have jurisdiction over acts of genocide, crimes against
humanity, war crimes and aggression (Rome Statute: Article 5(1)). At present, the
definition of enslavement within the Rome Statute makes explicit reference to the crime
of human trafficking (Rome Statute: Article 7(2)(c)) but there is no further definition
offered by either the Statute itself or the Elements of Crimes (hereafter, ‘Elements’).
Enslavement under the Rome Statute is defined as in the Slavery Convention under
article 1, noting the importance of the idea of ‘ownership(Rome Statute: article 7(2)(c)).

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 34
 CLARE FRANCES MORAN

However, this definition and the Rome Statute itself came into being prior to the
Trafficking Protocol, which defines trafficking as, effectively, all practices in
connection with and for the purposes of slavery, under article 3(a), criminalising:

“the 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.”

The idea of ownership is replaced by that of ‘control over another person, for the
purposes of exploitation,’ arguably a more stringent standard than that of ownership or
property rights. Therefore the threshold adopted by the Rome Statute is automatically
higher and would require a demonstration of the attributes of ownership before an
individual could be tried on a charge of enslavement at the ICC. The reliance on the
prior definition of slavery does not necessarily reflect an intention to exclude trafficking
as a discrete crime. Rather the specific inclusion of the word ‘trafficking’ in the
definition of enslavement arguably demonstrates that there was a clear intention to
include the crime as it existed in international law at that time. The clear intention to
include human trafficking can be seen in other crimes against humanity, which reflect
different parts of the current definition.

Within article seven of the Rome Statute, there are two other crimes against
humanity which reflect aspects of the United Nations (hereafter, ‘UN’) definition of
human trafficking: ‘deportation and forcible transfer of population,’ (Rome Statute:
article 7(1)(d)) which encompasses the ‘recruitment, transportation, transfer, harbouring
or receipt or persons, by means of threat or the use of force or other forms of coercion’
(UN Convention 2000: Protocol, article 3(a)) and ‘rape, sexual slavery and enforced
prostitution’ (Rome Statute: article 7(1)(g)) which includes the exploitation (UN
Convention 2000: Protocol, article 3(a)) aspect to current human trafficking definition.
Deportation and forcible transfer is defined as being ‘the displacement of persons by
expulsion’ (Rome Statute: article 7(1)(d)) from the area in which they are legally
entitled to be, and with the inclusion of the phrase ‘other coercive acts’ (Rome Statute:
article 7(1)(d)) the definition expands to fit the concept of human trafficking, in which
victims have no free choice to comply with the demands of the traffickers. This is
particularly relevant when human trafficking is viewed as ‘a particularly abusive form
of migration’ (UNHCHR 2002: Introduction) but it does require that the victims were
lawfully present in the territory from which they were trafficked. Given that the process
has to begin somewhere, and that individuals are generally trafficked from their home
countries, this requirement does not represent an insurmountable obstacle, but
nonetheless may preclude the trafficking of some victims such as those who are
stateless, or illegally working within another country. (Obokata, 2005: 450)

The inclusion of rape and sexual slavery as a crime against humanity also
creates provision for instances in which the exploitation of the individual was for sexual

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 35
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

purposes or where the ‘ownership’ threshold was reached. Reflecting briefly, it is clear
that the Rome Statute has intended to include human trafficking within the jurisdiction
of the ICC. However its inclusion as a crime against humanity creates a limitation,
rather than a threshold, of an underpinning policy element. This limitation is
problematic for a diffuse problem such as human trafficking. Equally, its attachment to
the idea of ownership may hamper the incorporation of human trafficking offences into
the framework of crimes against humanity, regardless of the direct relationship both
have to the same fundamental requirement: ‘use’ of a person in the way that an object
would typically be ‘used.’

Be that as it may, the purposive interpretation of the Rome Statute is

undermined when confronted with the requirement that a crime against humanity can
only be termed as such ‘when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack’ (Rome Statute:
Article 7(1)) There are therefore three parts to this requirement which ought to receive
attention. First, the idea of a ‘widespread or systematic attack,’ second, the concept of a
‘civilian population’ and third, ‘knowledge of the attack’ as part of the plan or policy.
The ‘widespread or systematic’ aspect does not necessarily preclude human trafficking
offences, particularly as committed by organised criminal gangs. The aim of
prosecuting at the ICC would be to remove those at the helm of such gangs and
therefore the most organised are likely to have a system in place, which would then
reflect the ‘systematic’ approach to the commission of the crime. As stated by Jane
Kim, ‘it is unlikely that each trafficker traffics one North Korean refugee woman and
then ends their operation, never to traffic again’ (Kim, 2011:24). Similarly, the
individual working within such a gang would be aware of the ‘organizational policy’
which he is carrying out. It appears something of a baseless argument for an accused to
claim that he or she considered him or herself the only trafficker within a criminal gang,
particularly where the heads of the gangs are being targeted for prosecution. Thus the
threshold that there ought to be ‘knowledge of the attack’ is not one which bears
particular relevance to this type of crime. The lack of knowledge that an individual was
trafficking individuals is difficult to understand: those in charge of criminal operations
would most likely be aware of the consequences of their actions and thus the
‘knowledge’ element of the crime does not require further discussion for the purposes of
this particular argument.

The inclusion of the words ‘civilian population’ indicates from the outset that
the target of the Rome Statute is those who act on behalf of a State. This is clarified by
the Elements of Crimes, which note on page 5 that the attack must be carried out
‘pursuant to or in furtherance of a State or organizational policy to commit such attack
… (which) requires that the State or organization actively promote or encourage such an
attack against a civilian population.’ It has been noted that there was a perceived fear
regarding the removal of the State or organizational policy requirement (Halling, 2010)
on the grounds that this would cover events which were both criminal and widespread,
but did not necessarily reach the ‘most serious crimes of international concern’
threshold set by the Rome Statute. The inclusion of this threshold for crimes against
humanity is relevant in the context of other crimes against humanity, and therefore it is

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 36
 CLARE FRANCES MORAN

not argued that the ‘State or organizational policy’ requirement should be removed.
Unless it could be shown that this could extend to the work of organised criminal gangs,
it would not be, at present, ‘pragmatic’ to create a distinct crime against humanity of
human trafficking (Cooper, 2011: 24) as the current requirement for State policy to be
implemented would create a barrier for the prosecution of human trafficking offences.
At this stage, it is apparent that human trafficking, as both a subspecies of slavery and in
its own right, is a sufficiently grievous offence to merit inclusion in the Rome Statute,
and therefore should not require the establishment of its own, separate court to try such
offences (Cooper, 2011: 13). However, the ICC would only have jurisdiction where it
could be proved that the commission of the offence occurred in relation to a ‘State or
organizational’ policy. The freedom that would be gained from the release of such a
requirement is shown in the International Criminal Tribunal for the former Yugoslavia
case of Prosecutor v Kunarac, in which the convicted individuals were held to have
enslaved women for the purposes of servitude and sexual exploitation. The conditions
and treatment suffered by the women was the focus of the prosecution and in particular,
the duration of the enslavement was not held to be a relevant factor (Kunarac, judgment:
121). However, working within the confines of the Rome Statute at present, what will
be explored next is what is meant by an ‘organization’ or ‘organizational policy.’

At present, the problem with human trafficking relates to its commission by

organised transnational criminal gangs, who fall outwith the ambit of human rights law,
by not having any responsibilities in this area. The conflict here is therefore between the
inclusion of trafficking and slavery offences within the Rome Statute, but with the
added requirement that such crimes are committed on behalf of the State or a State-like
entity. The next section therefore proposes to examine the possibility of an organised
criminal gang being considered an ‘organization’ for the purposes of the Rome Statute,
this being the only way in which human trafficking, as currently defined within the
Rome Statute, could be tried at the ICC.

III. INCLUDING CRIMINAL GANGS WITHIN THE ICC’S JURISDICTION – ORGANISATIONS

AND COMPLEMENTARITY

At present, slavery can be considered a crime against humanity. However this

presents an additional problem, given that the crime is most often committed by
organised criminal gangs, rather than States. Organised criminals, human traffickers
specifically, are generally acting in an illicit fashion and therefore cannot be held to
account in the same way as those acting on behalf of political or commercial
organizations, or nation States might, as the consideration of the position of non-state
actors is generally held to view these ‘participants’ (Alston, 2000) in the international
legal system as lawful, at least at inception. There is potential for the gangs themselves
to be considered organisations, as such as the Elements would require an organisational
policy to be in place, which would also satisfy the ‘widespread or systematic’ criterion,
the systematic element being of the greatest relevance. The viability of this argument
would not be challenged by the bounds of the jurisdiction of the ICC provided the
individuals accused were natural persons (Rome Statute: article 25) and providing that
either the crime occurred on the territory of a State party (Rome Statute: article

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 37
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

12(2)(a)) or concerned one of their nationals (Rome Statute: article 12(2)(b)).

Furthermore, there has been an assumption on the part of previous international criminal
tribunals, in that these have assumed a ‘legal ability to enter into relations with non-state
actors, not just through the conclusion of international agreements, but also by assuming
the authority to request material and co-operation in general’ (d’Aspremont, 2011: 198)
Furthermore, non-state actors are arguably bound by customary law, such as common
article three of the Geneva Convention 1949 (Milanovic, 2011: 40). It is submitted that
the illicit nature of these organisations does not necessarily bar them from being
considered organisations for the purposes of human trafficking offences as defined by
the Rome Statute, and accordingly from satisfying the requirement of the existence of
an ‘organizational policy.’ Indeed, the ICC represents the fruition of efforts to
‘implement the Draft Code of Crimes against the Peace and Security of Mankind’
(Graefrath, 1990: 67) The Code itself envisaged exercising jurisdiction over ‘any
organization or group’ (Draft code: article 18) in respect of crimes against humanity,
and the Rome Statute fails to define what an organization might be, other than to require
an organisation which is accused of an enforced disappearance be ‘political’ (Rome
Statute: article 7(1)(i)) arguably creating a gap which the ICC may wish to fill through
determining its own competence (Rome Statute: article 19(1)) over organised criminal
gangs.

Arguably, the recognition of such organisations would be sufficient to establish

their ‘participation’ in the international legal order. Under international law, there are a
number of ways in which legal personality can be attributed. In this context, the
recognition theory of legal personality (Portmann, 2010: 81) is relevant; the example of
the Order of Malta (Portmann, 2010: 119) being considered a participant in the
international legal order because other States recognise it as such. The current theories
in the area are those of formalism and individualism (Portmann, 2010: 248), the latter
theory being of the greatest relevance to this argument. As organised criminal gangs
must have human participants in order to carry out their activities, the recognition of
their existence can be determined by examining their constituent parts. As their
constituent parts participate in the international legal order, through violating
international criminal law, the gangs themselves must participate and thereby the
‘organizational policy’ is evidenced. The idea behind this is to stretch the definition of
such crimes and requirements excessively, but rather because there is much to support
the idea that human trafficking should be considered a crime against humanity. In
particular, ‘the crime may be excluded from statutes of limitations which forbid
prosecution after a certain period of time, the perpetrators can be denied refugee status
or asylum, there will be added obligations on states to cooperate, and in some
jurisdictions the crime may come within a state’s national criminal jurisdiction whereas
without the label ‘crime against humanity’ it might not’ (Clapham, 2006: 106) This
supports the contention that it may be useful to retain human trafficking as a crime
against humanity.

The inclusion of the requirement of a State or organizational policy, however

construed, presents problems. This approach differs from that of the International
Criminal Tribunal for the former Yugoslavia, the Statute of which had no reference to a

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 38
 CLARE FRANCES MORAN

‘State or organizational policy’ in its definition of crimes against humanity (Rome

Statute: article 5) Indeed the prosecution undertaken in Kunarac would have been
undermined by such a requirement, in which the convicted individuals were held to
have enslaved women for the purposes of servitude and sexual exploitation. The
conditions and treatment suffered by the women was the focus of the prosecution and in
particular, the duration of the enslavement was not held to be a relevant factor (Kunarac
judgment: 121). It is relevant that the odiousness of the crime was held in this case to be
important, rather than measuring the severity of the crime through cataloguing the
number who had been subjected to such treatment. This may indicate that the inclusion
of human trafficking as part of a crime against humanity is not appropriate for this
particular crime. Regardless of how it can be fitted in to the current scope of the Rome
Statute, it may simply be that the most suitable place for the crime of human trafficking
is as a discrete international crime.

Considering the difficulties that stretching the current definition of human

trafficking, organizational policies and the jurisdiction of the ICC in general pose, it
must be asked as to why national governments cannot deal with the issue of human
trafficking as a violation of domestic criminal law. Clearly, the existence of the
complementarity principle demonstrates that national level prosecutions must be
exhausted prior to the jurisdiction of the ICC being triggered, unless in circumstances
where the State is unwilling or unable to prosecute. Indeed, this concept is seen as one
of the guiding principles of the ICC, in that it does not have primary jurisdiction and
indeed should only be used where the proceedings undertaken by States fail’ (Sheng,
2006-2007: 415). One of the main issues with giving the ICC jurisdiction in the area of
human trafficking, and effectively in other areas, is that it ‘could be seen as a form of
colonisation or establishing power’ (Ryngaert, 2008: 226). However, this argument can
neutered by brief reference to the seriousness of the crime itself, which indicates that it
is appropriate that the ICC have jurisdiction over it. A secondary argument is that of
effective prosecution; frequently, it cannot be, and is not, always dealt with in an
effective manner at State level. The existence of State-based controls to combat a
transnational network is something which contributes to the lack of prosecutions in this
area (Shelley, 2011: 138) and where States are unable or unwilling to prosecute, the
ICC ought to assume jurisdiction for this crime. At present, this is difficult given the
inclusion of a limited definition of the crime as a crime against humanity, which creates
certain thresholds for the commission of a crime. This does not necessarily end
impunity, as it might, in terms of prosecuting an individual accused of human
trafficking under the ICC at present.

The comparison has naturally been made between human trafficking and piracy
(Cohen, 2010) both as forms of transnational criminal activity which require collective
action by a number of jurisdictions through the application of universal jurisdiction.
Indeed, pirates were generally considered ‘enemies of all mankind’ on account of a lack
of citizenship and centrally due to the enforcement difficulties of prosecuting a crime
committed on the high seas (Ryngaert, 2008: 109). Reflecting on the Rome Statute, the
crime of piracy is something of a deliberate omission and clearly did not fit into the

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 39
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

framework of crimes against humanity. It is generally not considered to be a core

international crime (Ryngaert, 2008: 109).

Similarly, it may further prevent impunity to acknowledge that this problem is

such that each and every State has a right and a duty to exercise jurisdiction over this
crime. It has been argued that, ‘if human trafficking is treated as a crime of universal
concern, it will become part of a category of serious crimes viewed with such
abhorrence that they warrant universal condemnation.’ (Cohen, 2010: 234). Universal
jurisdiction is another, separate issue, but could be useful in preventing impunity
through affording jurisdiction to any States which prosecute. The inclusion of human
trafficking as a core international crime in the Rome Statute may hasten the adoption of
universal jurisdiction over such a crime by indicating a consensus on the seriousness of
such conduct.

It would also afford human trafficking the necessary footing as one of the ‘most
serious crimes of international concern.’ This would not necessarily require that every
act of human trafficking would be covered, as the admissibility threshold would need to
be reached by the acts themselves. Thus complementarity would remain the
‘gatekeeper’ (Sheng 2006-2007: 452) for ICC prosecutions and investigations.

IV. HUMAN TRAFFICKING AS A CORE CRIME: USING THE ‘GENOCIDE’ THRESHOLD AS

A TEST

The proposal herein is to address the gap created by the Rome Statute in the area
of human trafficking by explicitly including it in the Statute as a core international
crime, in the form defined by the United Nations. This would place human trafficking in
Article five, alongside genocide, aggression, war crimes and crimes against humanity in
terms of the offences over which the court has jurisdiction. The way in which it is
proposed that this ought to be done is to use the conceptual threshold requirements of
the crime of genocide within the Rome Statute as a theoretical model. The current
treatment of human trafficking is via the use of mutual criminal assistance agreements
based on traditional jurisdictional principles, and thus these lack the quality of ‘core
international crimes’, which create individual responsibility independently of domestic
law. In the absence of domestic provisions, and will, there can be no trial for such
crimes, unless provision is made to transform human trafficking into a core international
crime, under article five of the Rome Statute. The inclusion of human trafficking in
article five would avoid this issue. Human trafficking would therefore be defined
separately from enslavement in order to fully prosecute the commission of the crime at
higher levels within the criminal organisations, as ‘an evolution of the scope of (the)
notion (of crimes covered by the ICC) is not impossible’ (Coracini, 2008: 701-702).

Genocide within the Rome Statute may involve torture, killing, confinement in
inhuman conditions, birth control or forcible transfer or deportation of a population. It
does not necessarily mean that any of these crimes, in isolation, will be considered
genocide, but rather that they must be committed with ‘specific intent.’ This is defined
by the Rome Statute as being ‘intent to destroy, in whole or in part, a national, ethnical,

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 40
 CLARE FRANCES MORAN

racial or religious group,’ using any of the crimes specified above. This idea is usually
known as ‘special’ or ‘specific’ intent, in that the individual accused is concerned with
the eradication of the targeted group and uses one of the methods above to achieve this
aim. The reach of the crime of genocide, in respect of the ‘groups’ which are protected
by the provision, will not be discussed here, as it is the idea of specific intent which is
of most value to the discussion here.

This idea of specific intent means that act of genocide does not need to be
committed in pursuance of a ‘State or organizational policy’ but rather simply needs to
be in pursuance of the ideology of eradicating that specific group. This means that there
is no need to attribute responsibility to a specific State or organisation, nor does the
attack need to be qualified as widespread or systematic (Prosecutor v Jelisic, 1995). As
such, the concept of a ‘lone genocidaire’ has already been tackled by the Jelisic case in
international law, in that an individual may commit one of the crimes specified in article
6 and be convicted of genocide where the intent was present. The Elements of Crimes
require the acts to take place as part of a ‘manifest pattern of similar conduct,’
specifically an ‘emerging pattern.’ Effectively this means that the conduct should take
place as part in a way that it can be identified as more than one incident in isolation,
which creates a lower threshold than that of a ‘widespread and systematic attack.’
Critically, it is the egregiousness of the underlying rationale for the attack which
qualifies the crime for inclusion within the Rome Statute, without regard to the
underlying policy for which it was committed nor to the number of victims claimed by
the actors in questions. As such, this specific or special intent provides a useful
theoretical model on which to base a proposed crime of human trafficking within the
Rome Statute. The threshold which must be reached by the actor when committing a
crime of genocide relates directly to the intent, rather than to the extent of the criminal
behaviour. It is not considered that there should be any parallel drawn between the
crime of genocide and human trafficking; rather the way in which genocide falls within
the jurisdiction of the ICC is relevant. It is therefore proposed that the inclusion of
human trafficking within the Rome Statute should attract a similar threshold
requirement as part of crimes which are committed by criminal gangs. Trafficking by
criminal gangs, the most likely perpetrators of such a crime, would necessarily fall
outwith the definition of human trafficking as a crime against humanity, unless such
gangs were acknowledged as State-like entities. One would hope this is unlikely, given
the incongruous nature of such a conclusion with human rights responsibilities of other
State and State-like entities.

The possibility of including human trafficking as a core international exists as it

has been acknowledged that, although ‘the International Criminal Court does not have
jurisdiction over all international crimes and it is understood that definitions or lists of
crimes that are within the jurisdiction of the ICC are not meant to be exclusive or to
limit in any way the customary definitions of crimes against humanity and war crimes
or the reach more generally of customary international law (Paust, 2010: 712). It is
argued that human trafficking, as a branch of slavery, ought to be explicitly included as
a core crime in international law, having regard to its heinousness and the difficulty of
transnational and domestic mechanisms of prosecution. However it is not argued that

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 41
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

every act of human trafficking ought to fall within the jurisdiction of the Rome Statute.
In viewing crimes against humanity as ‘widespread and systematic attacks’ based on
State policy and genocide as a crime requiring the specific intent to eradicate a certain
group of individuals, human trafficking should be considered a crime within the Rome
Statute as defined within the Trafficking Protocol, but with the additional threshold that
the accused intends to gain a profit in some way from obtaining or maintaining control
over the victim of trafficking. This form of special intent may appear, initially, to be a
low threshold for a core international crime but may assist in preventing impunity for
such crimes. Generally, the concept of profiting is at the heart of human trafficking as a
crime, in that the individuals concerned are transferred or maintained in slavery to pay
their ‘owners’ or ‘employers’ a certain amount of money. The most serious human
trafficking crimes involve organised operations spanning across countries in a dense
network, the extent of which the authorities are not able to properly track, a fact evident
in the lack of precise statistics in this area. The desire of the ICC not to tackle ‘low-
hanging fruit’ and attribute responsibility to leaders and commanders, coupled with the
requirement that the individuals would profit from such an undertaking, may provide
the relevant threshold for human trafficking being considered a core international crime.
It would also target criminal gangs without recognising such gangs as organisations
proper, but rather disaggregate them into the individual criminals that they are. In doing
so, the heads of the organisation could be prosecuted in the way that war criminals have
been publicly indicted and exposed at the ICC in recent years. Such an inclusion within
the Rome Statute would create the required bridge between international and
transnational operations, elevating the crime itself to a level of seriousness which it does
merit, being a modern form of slavery, but without requiring that the attack was
widespread or systematic, or that it was undertaken by an organisation or State. Rather
it distinguishes the crime as something separate and deserving of unique attention in the
Statute, given the consequences that it has for both individual dignity and global
stability.

V. CONCLUSION

Human trafficking, as a modern form of slavery, is undoubtedly an issue for

international criminal justice. As the ‘centrepiece’ for a ‘fair and effective system’ of
international criminal justice (Sunga, 1998: 399) the Rome Statute should extend its
jurisdiction to the crime of human trafficking as a crime against humanity. The
existence of a ‘silent war’ (Kim, 2011: 32) in which traffickers and victims are difficult
to trace leads to the conclusion that the exposure which elevation to the jurisdiction of
the ICC would offer should be undertaken to promote the idea that the offence is as
serious as any of the serious crimes noted in the Rome Statute. However as a crime it
should not be tucked away with the other crimes against humanity, given the current
constraints of the definition, which may be appropriate in terms of other named
offences, such as torture. Rather it is proposed that the ICC declare jurisdiction over
human trafficking as a discrete crime under the Rome Statute, following the idea of
placing individual restrictions on the prosecution of the crime at the ICC, in the same
way as the crime of genocide has been uniquely defined.

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 42
 CLARE FRANCES MORAN

Including human trafficking as a crime against humanity would entail the

satisfaction of the ‘widespread and systematic attack’ requirement, as well as the
commission of the attack as part of a ‘State or organizational policy.’ The justification
for the inclusion of the first requirement, which would prevent a future Kunarac et al.
being tried under the Rome Statute, is that the ICC has been created to prevent future
‘unimaginable atrocities’ (Schabas, 2012: 29) and such a function would be undermined
by the application of the law therein to ‘ordinary’ attacks, even where these took place
on a large scale. However, the problem with retaining this requirement is that human
trafficking, in the context of organised crime, cannot presently be prosecuted at the ICC
as the crimes committed by organised criminal gangs are not done in pursuance of a
‘State or organizational policy.’ Coupled with the fact that the international treaties on
trafficking are simply ‘mutual criminal assistance agreements based on traditional
jurisdictional principles’ (Tavakoli, 2002: 79), it is clear that the ICC is not even being
considered as a useful way in which to limit the powers of highly organised criminal
gangs who are committing unimaginable atrocities in an industrialised fashion.

The second requirement, that of an organisational or State policy being the

underlying rationale for the attack, may create issues in that criminal gangs, the main
perpetrators of human trafficking offences, would need to be considered ‘organizations’
for the purposes of the Statute. It is not disputed that the policies may be organizational,
but it is rejected that they should receive acceptance in the international legal order. The
criminal gangs should be considered as separate criminal individuals, with those at the
helm of the organisations being prosecuted for deriving profit from the human suffering
they orchestrate through trafficking individuals.

‘The ICC is not and should not be regarded as a panacea’ (Ronen, 2010: 27) but
it should recognise the crime of human trafficking as one which is of ‘serious concern to
the international community as a whole’, in the same vein as the other crimes within its
jurisdiction The most pragmatic way of achieving this recognition would be to include
human trafficking as a discrete crime within the Rome Statute within article five.

REFERENCES

Acquaviva, G., 2011. Non-state actors from the perspective international criminal
tribunals. In J. d’Aspremont, ed., 2011. Participants in the international legal
system: Multiple perspectives on non-state actors in international law,
Abingdon: Routledge.
African Charter on Human and Peoples Rights 1981 (adopted 27 June 1981, entered
into force 21 October 1986) 2 ILM 58 (1982)
Alston P., 2000. Human rights and non-state actors, Oxford: Oxford University Press.
American Convention on Human Rights (signed 22 November 1969, entered into force
18 July 1978) OASTS 36
Belser, P., 2005. Forced labour and human trafficking: Estimating the profits, Cornell
University ILR School, 3-1-2005. Available at

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 43
 HUMAN TRAFFICKING AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1016&context=forced
labor [accessed 19.05.14]
Broomhall, B., 2004. International justice and the International Criminal Court, Oxford:
Oxford University Press.
Clapham, A., 2006. Human rights obligations of non-state actors, Oxford: Oxford
University Press.
Cohen, M., 2010. The analogy between piracy and human trafficking: A theoretical
framework for the application of universal jurisdiction, Buffalo Human Rights
Law Review, 16, pp.201-235
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others 1949 (signed on 21 March 1950, entered into force 25
July 1951) 96 UNTS 271
Coracini, A. R., 2008. Amended most serious crimes: a new category of core crimes
within the jurisdiction but out of the reach of the International Criminal Court?
Leiden Journal of International Law, 21(3), pp.699-718
Draft Code of Crimes against the Peace and Security of Mankind 2 YBIL1996
Elements of Crimes, ICC-ASP/1/3 (Part II – B)
European Convention on Human Rights (adopted on 4 November 1950, entered into
force 3 September 1953) CETS No. 005
Green, J.C., 2011. A Proposal Leading to an International Court to Combat Trafficking
in Human Beings, Third Annual Interdisciplinary Conference on Human
Trafficking, Paper 13. Available at
http://digitalcommons.unl.edu/humtraffconf3/13 [accessed 19.05.14]
Graefrath, B., 1990. Universal criminal jurisdiction and an international criminal court,
European Journal of International Law, 1, pp.67-88
Halling, M., 2010. Push the envelope – watch it bend: removing the policy requirement
and extending crimes against humanity, Leiden Journal of International Law,
23(4), pp.824-845
International Agreement of 18 May 1904 for the Suppression of the White Slave Traffic
(signed 18 May 1904, entered into force 18 July 1905) 1 LNTS 83
International Convention of 4 May 1910 for the Suppression of the White Slave Traffic
(signed 4 May 1910, entered into force 21 June 1951) 211 Consol. T.S. 45
International Covenant on Civil and Political Rights (signed 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171
International Convention for the Suppression of the Traffic in Women and Children
(signed 30 September 1921, entered into force 15 June 1922) 9 LNTS 415
International Convention for the Suppression of the Traffic in Women of Full Age 1933
(signed 11 October 1933, entered into force 24 August 1934) 150 UNTS 431
Kim, J., 2011. Prosecuting human trafficking as a crime against humanity under the
Rome Statute, Gender and Sexuality Online, 02/23. Available at
http://blogs.law.columbia.edu/gslonline/2011/02/23/prosecuting-human-
trafficking-as-a-crime-against-humanity-under-the-rome-statute/ [accessed
19.05.14]
Milanovic, M., 2011. Is the Rome Statute binding on individuals? Journal of
International Criminal Justice, 9(1), pp.25-52

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 44
 CLARE FRANCES MORAN

Obokata, T., 2005. Trafficking of human beings as a crime against humanity: some
implications for the international legal system, International and Comparative
Law Quarterly, 54(2), pp.445-457
Paust, J., 2010. The International Criminal Court does not have complete jurisdiction
over customary crimes against humanity and war crimes, John Marshall Law
School Review, 43, pp.681-714
Portmann, R., 2010. Legal personality in international law, Cambridge: Cambridge
University Press.
Prosecutor v Jelisic Judgment IT-95-10 14 December 1999
Prosecutor v Kunarac Judgment IT-96-23-A 12 June 2002
Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 38544
Ronen, Y., 2010. ICC jurisdiction over acts committed in the Gaza Strip: Article 12(3)
of the ICC Statute and non-state entities, Journal of International Criminal
Justice, 8, pp.3-27
Ryngaert C., 2008. Jurisdiction in international law, Oxford: Oxford University Press.
Schabas, W., 2012. Unimaginable atrocities: justice, politics, and the war crimes
tribunals, Oxford: Oxford University Press.
Shelley, L., 2011. International trafficking. In S. Okubo, and L. Shelley, 2011. Human
security, transnational crime and human trafficking: Asian and western
perspectives, Abingdon: Routledge.
Sheng, A., 2006-7. Analysing complementarity, International Law Students Association
Journal of International and Comparative Law, 13, pp.413-452
Slavery Convention 1926 (signed 25 September 1926, entered into force 9 March 1927)
60 L.N.T.S. 254
Sunga, L.S., 1998. The crimes within the jurisdiction of the International Criminal
Court, European Journal of Crime, Criminal Law and Criminal Justice, 6,
pp.377-399
Tavakoli, N., 2002. A crime that offends the conscience of humanity: A proposal to
reclassify trafficking in women as an international crime, International Criminal
Law Review, 9, pp.77-98
United Nations High Commissioner for Human Rights Recommended principles and
guidelines on human rights and human trafficking UN doc E/2002/68/ADD.1
United Nations Office on Drugs and Crime Global report on trafficking in persons
February 2009
United Nations Convention against Organised Crime (signed on 15 November 2000,
entered into force 29 September 2003) 2225 UNTS 209
UNGA Resolution 808 22 February 1993 UN Doc S/RES/808 (1993)
Wyler, L. and Siskin, A., 2010. Trafficking in persons: U.S. Policy and issues for
Congress, Congressional Report Service for Congress, 7-5700

The Age of Human Rights Journal, 3 (December 2014) pp. 32-45 ISSN: 2340-9592 45