Human Trafficking and Its Prosecution: Challenges of the ICC

Abstract

This article deals with the International Criminal Court (ICC), Article 7 of the Rome Statute, the applicability of the ICC in prosecuting trafficking cases, the challenges and limitations of the ICC in the prosecution of crimes against humanity, especially the trafficking cases. Since human trafficking is a transnational organized crime and has its presence felt in all the countries across the world, therefore there is a need to have an international body or statute which could address the human trafficking cases and deliver effective and efficient prosecution. Thus the establishment of the International Criminal Court and the Rome Statute to prosecute cases which constituted crimes against humanity took place. The Rome Statute, thus ratified, had its jurisdiction over the crimes such as war crimes, genocide, crimes against humanity and crimes of aggression and Article 7 defined the crimes against humanity. The article introduces to the nature and operation of the ICC with reference to the Rome Statute and prosecution of trafficking cases. It also discusses about the importance about various protocols and conventions enforced by the UN for preventing trafficking, labour, slavery which formed the basis of the Rome Statute and the establishment of the ICC. The jurisdiction of the ICC and the nature of the crimes which are applicable to be prosecuted by the ICC are also discussed in the article specifying the type of crimes under each category of crimes against humanity. The article also explains the application of the ICC in prosecuting cases which constitutes crimes against humanity under Article 7 of the Rome Statute with reference to enslavement, sexual slavery, enforced prostitution and any other form of sexual violence of comparable gravity. It further describes each characteristics of Article 7 of the Rome Statute – crimes against humanity which would be applicable for prosecution by the ICC with a brief description of the kinds of attack to be constituted as crimes against humanity is elucidated in the chapter. The author, thus, in this article describes and lays emphasis on each characteristic of the crimes against humanity separately, viz., attacks directed against a civilian population, attacks as systematic and widespread, attacks in furtherance to the State or organizational policy and attacks committed with the perpetrator’s knowledge. The first characteristic of the attacks which is directed against civilian population are explained. This constitutes course of conduct referred to, viz., abuse, exploitation etc. involving multiple commission of the acts, directed against a civilian population and is not confined to any kind of war or military attack. The explanation of the attack directed against civilian population is also referred in terms of trafficking. The next component explained in this article is of the nature of attack to be considered under Article 7 is that the attack is widespread and systematic. The acts of human trafficking constituting attacks directed against a civilian population is, in most of the occasion, a widespread and systematic attack since it is directed against a large number of persons or a group of persons which are weak and vulnerable human trafficking. The article highlights the organized manner of trafficking which qualifies to be systematic in nature and also highlights the extent of trafficking which is spread over a large area, globally and across the borders thus qualifying the widespread nature of the attack. The attack in furtherance to State or Organizational policy constitutes the crimes against humanity under the Rome Statute in its Article 7. Hence, the article highlights the nature of the crimes of trafficking which are committed in some countries with the assistance of the government and policies of that state thereby increasing their economy and use of the trafficked persons in armed conflicts, labour or purposeful exploitation of any cultural or ethnic group. The next important characteristic of the nature of the crime described and highlighted by the author in this article with reference to trafficking constituting to be crimes against humanity under Article 7 of the Rome Statute is the knowledge of the attack by the perpetrator. The article further emphasizes and explains the challenges and limitations of the International Criminal Court in prosecuting cases pertaining to crimes against humanity and specifically those of human trafficking. The International Criminal Court, despite being the universal authority to prosecute cases of international crimes, such as those specified by the Rome Statute, has not been able to deliver much successful judgments in cases of crimes against humanity. It aptly defines the nature of the ICC and the reasons, limitations and challenges faced in prosecuting cases, such as, trafficking cases, war crimes, genocide, exploitation and slavery. It also suggests the possible solutions to overcome the challenges and limitations faced by the ICC. Lack or absence of a precise and accurate definition of trafficking is one of the biggest obstacles in the prosecution of trafficking cases by the ICC. The vague definition of trafficking has been an impediment in the prosecution of trafficking cases by the ICC and also by the ad hoc tribunals, ICTY and ICTR. Another challenge faced by the ICC has been the risk of ignoring the seriousness and magnitude of human trafficking which again is a consequence of vague definition of trafficking and the definition of enslavement and the identification of slavery and prosecution of cases in punishing the traffickers who traffick people for enslavement purpose. Further, the article highlights the confusion which is being created between the victims of war crimes and crimes against humanity due to which proper prosecution of such cases is ignored. Further, it describes about the reach, jurisdiction of the ICC and admissibility regime of the court and the complementarity principle of the ICC in prosecuting cases. The ICC cannot prosecute any case applicable as crimes against humanity until the state parties refer it to the ICC or are unwilling to prosecute or fail to prosecute. The ICC cannot go beyond its jurisdiction and enter into the jurisdiction of the state parties in prosecuting cases of crimes against humanity. The lack of cooperation and support from the countries involved in prosecution of the trafficking cases is also one of the major challenges before the ICC which have also been discussed in this article. The ICC further lacks in executive powers and hence is dependent on the state parties and this weakness of the ICC poses limitation and a challenge in effectively work and prosecute cases because the ICC does not have its own network of investigating officers and police force to gather evidences. The author in this article also highlights the difficulty of the ICC in terms of technicalities and logistics since the cases which are prosecuted by the ICC are originating in some other countries are thousands of miles away. The cost of prosecution, victim protection, residence and travelling of the victims and the officials is also a major concern for the ICC since it faces scarcity of financial and other resources.