The idea that the ICC should focus on trafficking cases worries me because it moves the responsibility to the ICC and takes away the government's obligation to perform this task. That is my main concern because I believe states are much better equipped to investigate and prosecute these crimes under the trafficking protocol.
Cody Corliss is currently an Associate Professor at the West Virginia University College of Law, where he focuses on criminal law and international law. Before this, he served as a Legal Officer in the Office of the Prosecutor at the UN International Residual Mechanism for Criminal Tribunals. Among his notable work, he was part of the trial team that secured the conviction of Bosnian Serb General Ratko Mladić and a life sentence for Radovan Karadžić, former President of the Republika Srpska on charges of genocide, crimes against humanity, and violations of the laws and customs of war.
Interview by Katarina Durdovicova (2023)
The interview was conducted in the spring of 2023 and has been edited for clarity
How does human trafficking fit into the legal requirements for a case to be heard by the ICC?
I think for human trafficking to fit, it needs to fall specifically under the crime of enslavement because enslavement is the crime we are referring to within the ICC under Article 7. Enslavement is the status, or condition, of ownership over a person, which was defined under the 1926 Slavery Convention. It is an act that is achieved through different means whether it can be a threat, forced coercion, or ultimately, exploitation.
In this case, trafficking not only has to rise to the level of ownership over a person, but it has to specifically rise to a crime against humanity. If we think about it, the ICC has specific requirements for crimes against humanity, as they must specifically occur as part of a widespread or systematic attack. Therefore, in my opinion, there aren't many instances where trafficking alone meets the standards of a widespread and systematic attack and that's where we are going to have the biggest hurdle of bringing trafficking claims before the ICC. Trafficking will occasionally fit these requirements, but in those cases it will be a small aspect of a larger attack on civilians in which trafficking was one crime that rose to the level of enslavement.
The International Criminal Court is particularly concerned with the rights of women and children, and given the victims involved, the threshold for what constitutes a grave situation may be lowered, but the condition of a widespread and systematic attack is still required. I believe that it will be more difficult to bring single cases before the ICC since they must meet sufficient gravity and hold to the principle of complementarity.
Do you think that the lack of resources, expertise, or political will of national governments could be a factor in the ICC's lack of cases on human trafficking?
The ICC is only going to take up cases where there is a lack of will, expertise and resources and where a state cannot or will not prosecute. If states are following the trafficking protocol, the complementary principle will not apply because the states are already doing what needs to be done. As a result, the ICC will not hear the case. Another reason these crimes are not being investigated by the ICC is that human trafficking is extremely difficult to fulfil both the gravity threshold and the widespread and systematic chapeau elements of a crime against humanity.
The trafficking protocol also compels governments that have committed to it to criminalise and prosecute this practice inside their domestic jurisdictions. So consequently, in many instances, I think the better method is enforcing the trafficking protocol and forcing states to really criminalise and prosecute these acts. Therefore, the greatest method to combat trafficking is for governments to invest resources and political will in domestic prosecutions, and to provide states the authority and obligation to pursue trafficking offences inside their jurisdiction.
What steps do you think need to be taken to ensure that the ICC is equipped to hear cases of human trafficking in the future?
I actually think the ICC is reasonably equipped to hear human trafficking cases. The ICC has excellent investigators who are well-versed in problems of sexual and gender-based abuse. They work really hard to identify problems, particularly sex trafficking and child trafficking, and to be prepared to deal with them.
The former prosecutor Fatou Bensouda, for example, has addressed trafficking difficulties in regards to Libya. The Islamic State has trafficked women, which the ICC admits and I believe there is a drive to get them up to the seriousness level of a widespread and systematic attack. As a result, the ICC will prosecute those crimes on the basis of enslavement rather than human trafficking since it fulfils the threshold where an individual is treated as property. Unfortunately, when it does not reach the level of enslavement, the ICC jurisdiction does not apply.
The Statute itself recognises that trafficking can rise to enslavement, and the former prosecutor has made it very clear that these offences do lead to enslavement when they occur as part of a widespread and systematic attack. What is important to understand is that the crime of enslavement, under the Rome Statute, is treating people as property and in one way you can treat someone as property by trafficking someone, but not all trafficking is going to rise to the level of enslavement.
Do you think that the ICC's focus on other crimes such as war crimes and crimes against humanity (or even enslavement in this case) has overshadowed the issue of human trafficking, and if so, what can be done to increase attention on this issue?
I believe that emphasising that the ICC should prosecute trafficking offences is difficult, risky, and a waste of prosecution resources. Partly because the ICC is primarily concerned with core international crimes - such as war crimes or crimes against humanity committed during or after a conflict, assaults on civilians, genocide, and aggression.
The idea that the ICC should focus on trafficking cases worries me because it moves the responsibility to the ICC and takes away the government's obligation to perform this task. That is my main concern because I believe states are much better equipped to investigate and prosecute these crimes under the trafficking protocol. On top of that, if we shift the responsibility to the ICC, especially when there are over 20 million cases of human trafficking in the world, it will not have enough resources to deal with so many trafficking cases in addition to those core international crimes.
I can only speak for the United States while attempting to draw attention to this issue. There have been a lot of discussions recently about what human trafficking is and how we can urge individuals to report it to domestic prosecutors and law enforcement. This activity, in my opinion, should be more common, particularly in countries that turn a blind eye to human trafficking. There should be incentives to raise knowledge at the source and where it is utilised.
About the interviewer: Katarina Durdovicova graduated from a Master’s in International Security at Sciences Po Paris. Her studies have focused on the Intelligence and Global Risks.