Determining the contours of the Rome Statute to prosecute ‘trafficking in persons’: enslavement, other inhumane acts, or judicial overreach?

Abstract

With growing international recognition of the widespread scale and sobering consequences of human trafficking, the International Criminal Court (ICC) is the most likely forum for its prosecution in the near future. However, the debate on whether it constitutes a crime within the jurisdiction of the Court remains unresolved. While significant scholarship has been devoted to this issue, it has largely neglected two critical investigative domains. First, the Rome Statute's travaux préparatoires vis-à-vis enslavement, and second, the potential to prosecute trafficking otherwise than under the crime against humanity of enslavement. In this vacuum, this article argues that a strict textualist interpretation of the crime against humanity of enslavement under Article 7(2)(c) of the Statute defeats the Court's goal of ending impunity, by excluding modern forms of slavery from its jurisdiction. It then proposes an innovative argument sourced from the Statute's travaux préparatoires for adopting a broader understanding of enslavement, which is more faithful to the drafter's intentions under the interpretative scheme envisioned in the Vienna Convention on the Law of Treaties. Such a qualified textualist interpretation of the Statute allows for the prosecution of the most serious crimes of international concern, such as trafficking, and preserves the credibility of the ICC as the normative and physical edifice of accountability. In the alternative, it is argued that human trafficking may be prosecuted as an ‘other inhumane act’ under Article 7(1)(k) of the Statute. Thus, the conclusion suggests that the ICC is indeed competent, on more than one ground, to exercise its jurisdiction over the crime of human trafficking.