Dr Nicole Siller is a Lecturer in Law at Deakin Law School. She received her Bachelor of Arts (Hons) from Purdue University (2004) and her Juris Doctorate from the University of Toledo College of Law (2008). Her research interests include Criminal Procedure, Criminal Law, International Law, Trafficking in Persons and Human Exploitation.
Trafficking in Persons under International Law and its Incorporation within Enslavement as a Crime against Humanity
On February 23, 2017 I successfully defended my doctoral thesis: “Trafficking in Persons under International Law and its Incorporation within Enslavement as a Crime against Humanity.” I have included in this faculty submission to Et Cetera a summary of my dissertation. If anyone is interested in this topic or conducting research in the area and would like to know or read more, please feel free to contact me.
Human trafficking is an international phenomenon in which issues involving human rights, migration, labor, global economics and criminal justice emerge. This thesis focuses on the criminal justice response. In 2000, the United Nations Office on Drugs and Crime (UNODC) introduced the Convention against Transnational Organized Crime (CTNOC). Supplemented by three protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) codified a criminal justice response to human trafficking by way of domestic criminalization of the offense. Under its Article 3(a) the Palermo Protocol defines the offense of ‘trafficking in persons’ as:
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.
Despite the Palermo Protocol’s overwhelming adoption by states and inclusion of this crime within national criminal codes around the world, domestic conviction rates for the crime of trafficking continue to remain alarmingly low. Evidently, criminalization in and of itself cannot ensure justice through law.
One of the most prevalent reasons offered for this prosecutorial deficiency is the lack of understanding with respect to the legal definition of ‘trafficking in persons’. Many states have used the Palermo Protocol’s construct or some variation of its Article 3 to define their national trafficking offense. However, all of the terms contained in the international definition of ‘trafficking in persons’ are left undefined– an omission which has found its way into domestic trafficking law and it attributed for definitional and interpretational misunderstandings of this offense.
Rhetoric used in and outside of the law addressing human trafficking further compounds issues of legal clarity. Concepts including, but not limited to: human trafficking, slavery, modern slavery, enslavement, forced labor, (enforced) prostitution, servitude and slave trade, are often used as synonyms, without any regard to the legal disorder this oratorical contamination may cause. While many of these terms possess their own distinct legal definitions under international law, others do not. The term, ‘modern slavery’ is not presently a legal term of art under international law. Nevertheless, that fact has not restrained academics, practitioners or institutions from its widespread usage. The need for definitional clarity is evident. Therefore, the first research inquiry discussed in Part I of this dissertation discerns a thorough, elemental and critical understanding of the international definition of ‘trafficking in persons’.
The Palermo Protocol is credited for codifying the first international definition of trafficking, but this contention discounts over a century’s worth of international trafficking instruments. Understanding this crime and its construction under international law requires a thorough examination of all relevant international instruments and accompanying travaux préparatoires. As such, Chapter 2 provides for a comprehensive account of the legal history of international trafficking instruments and their interpretation throughout the last 120 years. The product of this research identifies and charts the definitional evolution of trafficking throughout time. Specifically, this examination uncovers valuable information as to previous definitions and meanings of terms contained within the formative international trafficking instruments, giving due consideration to the historical and political contexts of the time.
Chapter 3 then turns to examine the current international definition of ‘trafficking in persons’ as enshrined in the Palermo Protocol. Generally understood, the crime of trafficking is comprised of three elements: (1) an ‘act’ (recruitment, transportation, transfer, harboring or receipt of persons); (2) a ‘means’ (via 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); both committed, (3) for the purpose of exploitation. The Palermo Protocol does not define ‘exploitation’. Instead, Article 3(a) states that ‘exploitation’ can be understood, ‘at a minimum’ to include: ‘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.’
A combination of at least one term from each element amounts to the legal qualification of trafficking. Through a meticulous assessment of the current trafficking literature in combination with a textual analysis of Article 3(a)’s terms, Chapter 3 attempts to carefully define each term in the definition of ‘trafficking in persons’ and contextualize its practical application. As it concerns trafficking’s third element, not only were the forms of exploitation in need of instrumental clarity, but discussing the level of intent required to attribute criminal accountability within this offense has to date, been grossly overlooked. As such, Chapter 3 attempted to determine how ‘for the purpose of’ can be understood as the mens rea element of the offense. It is clear that dolus directus of the first degree (‘concrete intent’ or purpose) unquestionably satisfies this mens rea element of trafficking. Depending on the domestic codification, this crime may also include dolus directus of the second degree (awareness of an inevitable outcome). However, any lower level of intent such as dolus eventualis appears to run contrary to the plain language of, ‘for the purpose of’ as codified in the Palermo Protocol.
Chapter 3 also endeavors to clarify any obligations imposed in light of the instrumental relationship between the Palermo Protocol and the CTNOC. These considerations include whether a transnational component also exists to statutorily satisfy the offense and/or whether perpetration must involve an organized criminal group. In sum, Part I aims to provide a comprehensive and clear understanding of the definition of ‘trafficking in persons’ as defined under international law from its inception until now.
After clarifying the Palermo Protocol’s definitional contours, the second aim of this study endeavors to understand the applicability of this offense within international criminal law (ICL). The actual criminalization of trafficking is domestic. Trafficking in persons is classified (by way of the CTNOC) as a transnational organized crime. Nevertheless, there is an ever growing belief that human traffickers can and should be prosecuted before the International Criminal Court (ICC). Those in favor primarily base their claim on the fact that the Rome Statute references ‘trafficking in persons’ within its definition of ‘enslavement’ as a crime against humanity. Specifically, Article 7(2)(c) states:
‘Enslavement’ means the exercise of any or all of the 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.
Of significance is that human trafficking is not codified as its own offense within the Rome Statute, or in any other statute of the current or previously operating international criminal institutions. It is only mentioned within the Rome Statute’s definition of ‘enslavement’ as a crime against humanity. Consequently, the second question posed in Part II this research project cannot isolate the role of trafficking within ICL. Rather, it must inquire whether the international crime against humanity of enslavement has, in fact, incorporated the crime of ‘trafficking in persons’ within its legal framework.
In an effort to answer this question, this thesis examines the legal relationship between the laws of enslavement and human trafficking: (1) as codified in their respective international instruments; (2) within statutes of international judicial institutions (focusing on the ICC) and; (3) via an examination of enslavement and sexual slavery jurisprudence from international and hybrid criminal courts and tribunals.
The leap between the research questions in Part I and II of this project required a transitional step. There are perceived substantive relationships between various concepts including trafficking, slavery, slave trade, sexual slavery and enslavement. Some of these concepts including slavery, slave trade and trafficking in persons, are defined in (public) international law instruments, whereas others like enslavement and sexual slavery are codified offenses within international criminal law statutes. Before exclusively delving into international criminal law (ICL), Chapter 4 identifies the international legal definitions of those listed concepts and crimes and determined whether such practices are distinguishable from one another in law.
With this legal definitional demarcation in mind and considering that enslavement is not formally defined anywhere else besides within the Rome Statute of the International Criminal Court (ICC), Chapter 5 examines the Rome Statute’s codification. As mentioned earlier, Article 7(2)(c) defines ‘enslavement’ as a crime against humanity. This definition includes the phrase ‘trafficking in persons’. Via a textual analysis of this codification as well as a review of the chapeau elements of crimes against humanity, Chapter 5 attempts to ascertain any legitimacy in the argument that the crime of trafficking has been incorporated into the Rome Statute’s codification of enslavement. A meticulous examination of the Rome Statute in combination with its Elements of Crimes and international law on enslavement leads the author to conclude that trafficking has been incorporated within this codification.
If a trafficking prosecution comes before the ICC however the largest legal hurdles will arise in proving the contextual elements of crimes against humanity. The often organized nature of trafficking can satisfy the systematic (as opposed to widespread) element of crimes against humanity. However, proof pertaining to a state or organizational policy will likely be the most challenging element to satisfy. Trafficking is often committed by organized criminal groups, but the majority of trafficking syndicates will likely not meet the ‘organizational policy’ threshold required by crimes against humanity. While the legal bright line for what constitutes an ‘organization’ is yet to be set in stone by the ICC, we know it is somewhere in between a ‘state-like entity’ and a group that enjoys ‘an established hierarchy’ and ‘possess[es] the means to carry out a widespread or systematic attack against the civilian population’.
Considering that the Rome Statute contains the only codified definition of ‘enslavement’ under ICL, an examination of ICL enslavement jurisprudence is also seminal in determining whether trafficking can be widely considered included within the crime against humanity of enslavement, or, if it is only included in the context of an ICC enslavement prosecution. Accordingly, Chapter 6 examines enslavement and sexual slavery jurisprudence from currently operating and previous international and hybrid international courts and tribunals.
In similar fashion to the Rome Statute’s codification of enslavement, each international judgment (post those issued for the crimes committed during World War II) has also defined ‘enslavement’ using the Slavery Convention’s definition of ‘slavery’ as its foundation, but unlike the Rome Statute, none of them included trafficking language. As sexual slavery has been held to be a form of enslavement, both enslavement and sexual slavery judgments were examined. Chapter 6 therefore attempts to ascertain how enslavement and sexual slavery, as codified crimes, are regarded by international criminal justice institutions.
Evaluating the manner in which the international judiciary interprets the international crime of enslavement reveals fascinating findings as it concerns the legal relationship between this crime and trafficking. Remarkably, elements of ‘trafficking in persons’ as defined in the Palermo Protocol, as well as attributes of the charged offense (enslavement and sexual slavery) are often jointly and indistinguishably relied upon in determining a defendant’s guilt.
In reviewing the judicial methodology used in a finding of enslavement, each court or tribunal has largely strayed from explicitly identifying ‘powers attaching to the right of ownership,’ in favor of utilizing a judicially constructed test (‘indicia of enslavement’) to make a finding of enslavement and sexual slavery. There are remarkable consistencies among the types of facts that these judiciaries relied upon in their findings of enslavement and/or sexual slavery which thereby become relevant when determining whether trafficking has been incorporated into the crime of enslavement. The most apparent include: (1) the importance in methods and manners of victim acquisition; and (2) considerations of consent.
Each and every ICL institution has held that the circumstances by which a person was acquired for their enslavement are relevant and aid in determining whether the elements of the crime were committed. These factors are also the first two elements of human trafficking. Moreover, in each enslavement case, victim acquisition was performed for the purpose of subjecting those persons acquired into forced or compulsory labor and/or sexual exploitation (rape, sexual slavery and/or forced marriage) which would also satisfy the third element of trafficking in persons – even further evidencing the disintegration of legal boundaries between the crimes of enslavement and trafficking.
As far as consent is concerned, its inclusion within the enslavement and sexual slavery judgments is quite interesting. Consent and any role it may play is not contemplated in the Slavery Convention’s definition of ‘slavery’ or within the conceptualization of exercising ‘powers attaching to the right of ownership’ over another. Nevertheless, each institution discussed consent in the context of enslavement or sexual slavery. Eventually, the judiciary dealt with consent in an almost identical fashion to the way it is addressed in the Palermo Protocol. The judiciaries’ identification of the defendants’ use of forms of the ‘means’ element of trafficking (eg, use or threat of force or abuse of a position of vulnerability) in the enslavement cases led every contemporary ICL court and tribunal (apart from the Trial Chamber in Krnojelac) to hold that consent was ‘irrelevant’, even in cases charging forced labor as analogous to enslavement.
This consistency in legal application evidences a common understanding in the interpretation of the crime of enslavement. Because the relied upon indicia of enslavement essentially comprises the elements of trafficking in persons as codified in the Palermo Protocol, it may be concluded that ICL institutions already consider the incorporation of trafficking within enslavement as a crime against humanity. This conclusion is further supported by the fact that enslavement is treated as an umbrella offense. As a result of the findings in Part II, the thesis concludes with the argument that trafficking’s material incorporation within the crime against humanity of enslavement may have, in fact, already happened under international criminal law.