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

By: Frederika Schweighoferova[1]

Due to its limited jurisdiction over certain international crimes, the International Criminal Court (“ICC”) tends to be overlooked as an adequate tool to address many contemporary crises which entail grave violation of human rights. One such situation is the rampant crime of human trafficking, further exacerbated by the current migration crisis. Despite the efforts to curb it, the crime of human trafficking continues to represent the third largest and most profitable crime industry worldwide. While states parties to the United Nations (“UN”) Trafficking Convention are under the obligation to investigate and prosecute the crime, the current statistics worldwide demonstrate the insufficient capacity of domestic jurisdiction to address it effectively.

The ICC was created to fight against the impunity of those responsible for the gravest crimes when states are unable or unwilling to do so. While many consider trafficking in persons as being already encompassed under enslavement or other inhumane acts as crimes against humanity as defined in the Rome Statute, the crime of human trafficking contains certain elements that would fall short of the existing framework. Therefore, amending the Rome Statute to include human trafficking as either a separate underlying act of crimes against humanity, or a stand-alone crime, might be necessary to prosecute the crime effectively.

This article intends to demonstrate, by describing crimes committed against migrants in Libya and in the Americas, the need to, first, prioritize the prosecution of trafficking in persons under the existing Rome Statute framework and, second, to amend the Rome Statute to allow its complete and effective prosecution.

1. Prosecuting Human Trafficking under the Existing Rome Statute Framework

1.1. Prevailing Chaos in Libya and Vulnerable Migrants in Hands of Criminals

Irregular migrants and asylum seekers experience unimaginable suffering and exploitation during their time in Libya, waiting to be smuggled to Europe, or being locked up in detention centers under terrible conditions before being deported. The International Organization for Migration (“IOM”) estimated that as of 2019, there are between 700,000 and 1,000,000 migrants in the country. As the latest joint report of the United Nations Support Mission in Libya (“UNSMIL”) and Office of the High Commissioner for Human Rights (“OHCHR”) on the situation of migrants in Libya highlights:

“From the moment they step onto Libyan soil, they become vulnerable to unlawful killings, torture and other ill-treatment, arbitrary detention and unlawful deprivation of liberty, rape and other forms of sexual and gender-based violence, slavery and forced labour, extortion and exploitation by both State and non-State actors.”

The tragic consequences of detaining tens of thousands of refugees and migrants in an escalating war zone were demonstrated on July 2, 2019, where over 40 migrants and refugees were killed and around 80 injured following an airstrike on the Tajoura refugee detention center outside Tripoli. However, this is not the only danger these vulnerable persons are exposed to.

As a consequence of bilateral agreements concluded among Libya, the European Union, and Italy, followed by a series of measures taken unilaterally by the Italian government, departure attempts from the Libyan shores to Italy substantially decreased throughout 2018. While the number of migrants decreased, the death rate has increased sharply as traffickers have been taking more risk to avoid the reinforced surveillance exercised by the Libyan coastguards. This has led to exacerbation of the vulnerable position of migrants who have become fully dependent on the will of the smugglers. Armed groups and traffickers, reportedly working in tandem with the Libyan Government of National Accord (“GNA”) and Libyan Coast Guard, have seized this opportunity to make profits, turning the smuggling of migrants into one of the most profitable businesses in this region. As reported in an award-winning undercover report by CNN, one of the direct consequences was the creation of “slave auctions” in Libya.

Even though Libya is a party to the UN Trafficking Protocol, and therefore is obliged to prevent and combat trafficking in human beings, the lack of the institutional capacity and resources makes it difficult to pursue. However, even with more effort and resources allocated to this problem, with the alleged involvement of state officials as accomplices to this crime, it appears highly unlikely that a solution to this dehumanizing practice can feasibly be achieved at the domestic level.

1.2. ICC as a Tool to Address Accountability

Given the gravity and wide scale of human trafficking of migrants in Libya and the unlikelihood of addressing these crimes at the domestic level, the solution should be sought internationally. While Libya is not a party to the Rome Statute, the treaty that established the ICC, the UN Security Council referred the situation in Libya to the ICC granting it jurisdiction over crimes under the Rome Statute committed in Libya’s territory or by its nationals from February 15, 2011 onwards.

In May 2017, the ICC Prosecutor, Fatou Bensouda, indicated that the ICC may investigate migrant-related crimes in Libya. In her remarks to the UN Security Council, she noted that “[her] Office continues to collect and analyze information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya” including trafficking in persons, and “is carefully examining the feasibility” of opening an investigation into these crimes.

Nevertheless, despite the arrest warrants issued by the ICC for crimes against humanity and war crimes committed in Libya, there is no—at least no publicly known—arrest warrant relating to Libya’s migrant-related crimes.

1.3. Human Trafficking in Libya as a Crime against Humanity

The traffickers in Libya, including state officials who have allegedly aided and been involved in the illegal enterprise, could fall under the ICC jurisdiction.

Acts of trafficking against migrants in Libya have been long reported. Already in 2009, the U.S. Department of State’s human rights report on Libya indicated that approximately 1% of the estimated 1.5 to 2 million foreign residents in Libya have been trafficked to the country for commercial sexual exploitation and forced labor purposes with the direct involvement of government officials in the process. Since then, crimes against migrants have been regularly reported by UN Special Rapporteurs, NGOs, as well as the U.S. Department of State (2017; 2018; 2019). While the total number of victims of the crimes has not been publicly available, it is estimated that in 2019, around 48,000 people were enslaved in Libya, while between 5,000 and 6,000 refugees and migrants are held arbitrarily in Libya’s detention centers under the authority of the Ministry of Interior. As such, the figures available show the systematic commission of the acts over many years. This demonstrates their regular recurrence and large-scale nature in terms of the number of victims, likely satisfying the criterion of both “widespread” or “systematic” as required by the chapeau of the crimes against humanity provision in the Rome Statute.

Large groups of civilians—migrants and refugees who have not been members of armed forces or other legitimate combatants—have been a primary target of the continuous and multiple commission of acts of human trafficking, likely satisfying the “attack against civilian population” element.

Further, if established that Libyan officials consistently committed or abetted crimes against migrants, it would also to satisfy the “state policy” requirement. Numerous reports have documented GNA state officials abusing migrants and cooperating with traffickers. In particular, UNSMIL and the ICC Office of the Prosecutor (“OTP”) have indicated the complicity of some state actors, including local officials, members of armed groups formally integrated into state institutions, and representatives of the Ministry of Interior and Ministry of Defense, in the smuggling or trafficking of migrants and refugees, as a means of enrichment through exploitation of and extortion from vulnerable migrants and refugees.

The available information therefore suggests that the “systematic or widespread attack directed against a civilian population” and the “policy” requirements are satisfied, given the involvement of state officials in the commission of the acts, which, as the following part explains, amount to underlying acts under Article 7, and were committed following a regular pattern at least since 2009.

The information collected by the ICC OTP, further corroborated by the UN Refugee Agency (“UNHCR”), and media indicates that the migrants have been subjected to torture, rape, sexual exploitation, slavery, forced labor, and unlawful imprisonment throughout their journeys in both official and unofficial detention centers. UNSMIL and OHCHR have well-documented the deplorable conditions migrants have faced in prisons and detention centers run by the Libyan Ministry of Interior, militia, and armed groups. In addition to subjecting migrants to grave human rights abuses, including forced labor, they have also helped traffickers gain access to migrants, who were then sold for forced labor or prostitution in the slave auctions. As such, several underlying acts under Article 7(1) of the Rome Statute could be brought in the absence of the existence of a separate crime of human trafficking.

The information available strongly indicates the existence of the required mens rea, i.e., the intent and knowledge of the crimes by the Libyan officials, militia, and armed groups committed either in the detention centers or once handed over to traffickers. The detainees give chilling testimonies of labelling the detention centers as “stores for smugglers.”

While a more thorough analysis is required, it appears that even if the ICC does not have jurisdiction over human trafficking, the crimes committed in the context of the Libyan situation include constitutive elements that are associated with the existing Rome Statute crimes, such as enslavement, unlawful imprisonment, torture, rape, and sexual slavery. Alternatively, the residual provision under the Rome Statute on “other inhumane acts,” which are acts that inflict “great suffering, or serious injury to body or to mental or physical health,” and are of a similar “character” as Article 7(1) acts, could be equally applied.

Despite the nonexistent material jurisdiction over human trafficking, the ICC OTP could prosecute Libyan officials as well as militia and armed groups, either as direct perpetrators or under the modes of liability of aiding and abetting, for the crimes connected to human trafficking in Libya under the existing Rome Statute framework.

2. Prosecuting Human Trafficking under the Amended Rome Statute Framework

2.1. Human Trafficking in Central America

Mexico and Northern Triangle—comprised of El Salvador, Guatemala, and Honduras have for decades accounted for one of the world’s highest homicide rates. To flee gang violence and poverty, it is estimated that every year, around 300,000-376,000 people leave Mexico to enter the United States and between 400,000–500,000 people flee the Northern Triangle to endure a treacherous journey north through Mexico to the United States.

Victims tend to pay everything they have to a smuggler who promises them a better life in the United States. However, these smugglers, working directly with human traffickers as part of a mutually profitable business, hand them over to human trafficking networks, controlled by gangs, acting in collusion with state authorities, who force them into the forced prostitution or labor to pay off their debts for their journey north. All irregular migrants are at risk of abuse, but women and children—particularly unaccompanied children—are especially vulnerable.

Women and girls travelling north become subjected to exploitative labor, sexual exploitation, or begging, especially indigenous girls. There are estimates that for every reported case there are 30 hidden victims, which, according to the U.S. Department of State 2019 report, brings the estimated numbers of victims of human trafficking every year to 21,200 in Mexico, 11,130 in Guatemala, 2,200 in Honduras, and around 1,600 in El Salvador. In Mexico, the numbers have sharply increased in 2019 as a result of the controversial immigration policy, “Migrant Protection Protocols,” also called “Remain in Mexico,” implemented by the Trump administration. The policy requires asylum seekers to stay in Mexico until their court hearings in the United States, leaving them exposed to become easy prey for human traffickers and extortionists.

While states have acted to counter the trafficking through adoption of legislation and creation of designated institutions, they lack clear policies to address the crimes effectively, which is further exacerbated by the involvement of corrupt authorities in the commission of the crimes.

The next part will examine the practicality of prosecuting the above-mentioned crimes under a crime against humanity of human trafficking—if it existed under the Rome Statute—and as stand-alone crime under the Rome Statute, falling outside of the scope of crimes against humanity.

2.2. Human Trafficking in Central America as a Crime against Humanity

The above-mentioned crimes satisfy the previously listed requirements of an “attack against civilian population” given the multiple commission of acts of human trafficking against migrants who are not merely randomly selected individuals. Their magnitude, number of victims, and non-accidental repetition of similar criminal conduct on a regular basis would satisfy the requirements of “widespread or systematic.”

As stemming from the Rome Statute criterion of “state or organizational policy” requirement, crimes against humanity can be perpetrated by government forces, as well as by organized armed groups. Some criminal organizations in Mexico and Northern Triangle qualify as an “organization” under the Rome Statute due to their hierarchical structure, their control over territory, their capability to carry out widespread or systematic attack against civilians as well as having expressed an intention to launch such attacks, and having done so in fact (see OSJI, p. 89). Despite the governments’ genuine efforts to tackle the crimes, this element is further compounded by the involvement of some state authorities of Mexico in the commission of the crimes, demonstrating the organizations’ capability to control the territory, including, de facto, its state authorities.

Nevertheless, even if these chapeau elements of crimes against humanity might be satisfied, the shortcomings of effectively addressing human trafficking without amending the Rome Statute are demonstrated by the inability of covering all elements of the crimes committed. The crimes would only be limited to the prosecution under the crime of enslavement where the perpetrator exercised the right of ownership over the trafficked person, or in other way deprived the victims of their liberty. While most human trafficking may indeed satisfy this element, there are numerous situations where traffickers lure victims by abusing their vulnerable position without necessarily depriving them of liberty or exercising ownership over them. It is also unclear whether the brief Rome Statute reference to human trafficking would be sufficient to cover the exploitation purposes applicable in the present example—prostitution and forced labor.

For this reason, including a new act under Article 7 of the Rome Statute of human trafficking, which would follow the definition of the UN Trafficking Protocol, while still requiring the chapeau elements of crimes against humanity, would equip the ICC with the necessary tools to address the crimes committed by the organized networks.

However, much human trafficking is not committed by large organized networks, but rather by individual criminals or groups of criminals which would not reach the threshold of an organization under the Rome Statute. Consequently, these would not satisfy the requirement that an act must be committed pursuant to or in furtherance of an organizational policy. For this reason, a stand-alone crime under the Rome Statute, using the definition of the UN Trafficking Protocol, would offer the widest—and for the moment the only—legal avenue to investigate and prosecute human trafficking, irrespective of whether it satisfied the chapeau elements of crimes against humanity, in cases where states with primary jurisdiction would be unwilling or unable to do so genuinely.

Without the necessity of satisfying the chapeau elements of crimes against humanity, the ICC would dispose—as the only non-domestic judicial institution—of unique force to address these global and far-reaching crimes effectively and not only offer an appropriate remedy to victims of these crimes, but also to deter their future commission.

Conclusion

Both situations have demonstrated the need to explore a new mechanism to address the widespread crimes of human trafficking. The absence of effective responses at domestic and regional levels suggests the need to engage an international jurisdictional body to investigate and prosecute this widespread crime. Under the current international legal framework, the ICC represents the most viable option.

In Libya, given the continuing climate of impunity for crimes against migrants in Libya and the inability of Libyan authorities to address them, the ICC, even with certain material jurisdiction limitations, represents a viable mechanism to bring justice for victims and help to hold to account the state officials involved in human trafficking.

In the Americas, while the situation could satisfy the chapeau elements of crimes against humanity, the prosecution of the underlying crimes would be unsatisfactory under the existing Rome Statute framework. This could be partially remedied by adding a new underlying act under Article 7 of the Rome Statute of human trafficking, applicable to the crimes committed by organized criminal networks. However, to effectively address the multitude of human trafficking acts committed by criminals not reaching the organizational threshold, an inclusion of a stand-alone crime under the Rome Statute would represent the most practical and feasible solution.

The journey to such a development might still be far. Nevertheless, given the continuing glaring impunity enjoyed by human traffickers, these matters should be discussed with gravity and urgency to tackle the world’s third most profitable illegal business.

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