In December 2024, the Worldwide Prison Court docket’s Workplace of the Prosecutor (‘OTP’ or ‘Prosecutor’) adopted a Slavery Crimes Coverage (‘Coverage’). The Coverage communicates the Prosecutor’s dedication to prioritizing investigations regarding up to date slavery. It envisions a job for the Prosecutor in curbing slavery crimes via the pursuit of legal accountability for the crimes throughout the Court docket’s jurisdiction, and as a ‘hub’ facilitating worldwide and home investigations of slavery crimes (para 143).
The Coverage provides a lot to sit up for. The Prosecutor envisages that the Worldwide Prison Court docket (‘ICC’) would possibly increase worldwide jurisprudence on slavery crimes. In a noteworthy step ahead, the Coverage explicitly appreciates, in accordance with incapacity rights students’ arguments, that individuals with disabilities are specifically affected by slavery crimes within the Court docket’s jurisdiction (paras 49, 94). The Coverage additionally considers the persisting affect of historic slavery on the colonial, racial, gendered, ageist and ableist patterns of up to date exploitation and enslavement (part III and p. 37), showcasing the depth of experience and dedication to correcting structural wrongs that the OTP advantages from.
Nonetheless, tensions stay regarding the Court docket’s jurisdiction over and the OTP’s function in investigating and prosecuting slavery crimes – a area by which different regimes of worldwide regulation concurrently apply, and by which many different actors are additionally engaged. Two current examples of the OTP’s apply in conditions involving human trafficking illustrate the questions that emerge from its apply and which the Coverage doesn’t resolve. Because the OTP seeks a bigger place within the area of up to date slavery and aspires to develop a survivor-centred worldwide regulation on up to date slavery, its work will overlap with efforts to an analogous impact in ‘transnational legal regulation’ and worldwide human rights regulation, elevating dilemmas across the authorized and political rules guiding its involvement.
Conviction, regulation, and the case of Ongwen
The Slavery Crimes Coverage acknowledges that the ICC’s jurisdiction covers a restricted a part of all slavery crimes outlined by worldwide regulation. Beneath its Statute, the ICC has jurisdiction over enslavement and sexual slavery as crimes in opposition to humanity and sexual slavery as a warfare crime (Articles 7(1)(c) and (g), and eight(2)(b)(xxii)). The crimes within the ICC’s jurisdiction are sometimes dedicated alongside slavery crimes that stay completely within the legal jurisdictions of states, together with slavery, the slave commerce, servitude, pressured labour, and human trafficking. The Coverage makes obvious the OTP’s want to serve a central function inside this broader class of crimes.
The Coverage acknowledges the restricted extent to which the Court docket’s jurisdiction covers slavery crimes, however doesn’t absolutely handle the authorized conundrums that come up from the factual and authorized intersection of the ICC crimes with different slavery crimes. Human trafficking is one crime whose future within the Coverage stays unclear. It’s among the many most generally criminalized conducts linked to up to date slavery. The near-universally adopted UN Trafficking Protocol establishes a shared definition of the crime and an intensive framework for transnational regulation enforcement cooperation. This oblique regime of worldwide legal regulation – usually known as ‘transnational legal regulation’ – is complemented by a growing physique of worldwide human rights regulation, which now confirms states’ constructive obligations to criminalize and prosecute human trafficking as a type of slavery and to cooperate in investigating and prosecuting cross-border instances of trafficking. It’s, due to this fact, stunning that the Coverage, whereas recognizing that slavery crimes are addressed at many ranges via the authorized frameworks for human trafficking (para. 27), excludes human trafficking from its definition of up to date slavery.
The Coverage, additional, insists on a distinction between ‘the transnational crime of human trafficking’ and ‘worldwide’ slavery crimes – a class by which it contains crimes such because the slave commerce that, like human trafficking, usually are not crimes beneath the ICC Statute however are outlined in worldwide treaties. The OTP beforehand relied on this distinction to argue in opposition to the applying of a non-punishment precept rising from home, transnational and worldwide authorized regimes for prosecuting human trafficking in its case in opposition to Dominic Ongwen. The UN Particular Rapporteur on Human Trafficking had argued in her amicus observations that the rising precept of non-punishment of victims of trafficking must be thought of within the case on grounds that the defendant had himself been trafficked previous to committing the crimes for which the Trial Chamber had discovered him responsible. The Prosecutor’s response emphasised, foremost, that the slavery crimes dedicated by Ongwen had been of ‘a nature and magnitude wholly completely different from the crimes ordinarily related to trafficking’ (Prosecutor’s response, para 5), thereby distinguishing worldwide crimes from the transnational crime of trafficking based mostly on a distinction in nature inherent to the classes. This argument may be contested: many states’ home legal codes categorize human trafficking as an ‘worldwide crime’ and/or as against the law to which common jurisdiction attaches, the Safety Council, worldwide human rights courts (see, particularly, judgments in Rantsev v. Cyprus and Russia and Staff of the Hacienda Brasil Verde v Brazil), and a few students contemplate human trafficking’s nature and magnitude similar to these of the crimes throughout the Court docket’s jurisdiction. Furthermore, the Prosecutor’s distinction between ‘worldwide crimes’ and ‘transnational crimes’ doesn’t mirror constructive regulation: neither the Rome Statute, worldwide crime suppression treaties, nor worldwide human rights regulation depend on such a hierarchy amongst slavery crimes.
To dismiss some internationally outlined crimes as completely different in nature from different worldwide crimes is to bypass unresolved questions regarding the applicability and systemic coherence throughout overlapping authorized frameworks for slavery crimes. In accordance with the ICC’s Statute, the Court docket’s jurisdiction is restricted to 4 crimes; in instances it tries, it shall apply its Statute and, after the Statute, ‘[i]n the second place, the place applicable, relevant treaties and the rules and guidelines of worldwide regulation’ (ICC Statute, Artwork. 21(1)(b)). It should, additional, apply these sources persistently with worldwide human rights regulation (ICC Statute, Artwork. 21(3)). Legally, the stronger argument in opposition to making use of the non-punishment precept in Ongwen was, due to this fact, that that the precept is rising fairly than established regulation (see Prosecutor’s response, para 6). However this reasoning might not all the time maintain. Because the Prosecutor goals to more and more partake in pursuing legal accountability for slavery crimes exterior the ICC’s jurisdiction, it might want to discover a constant foundation for figuring out whether or not, when and the way legal regulation rules developed or growing in ‘transnational legal regulation’ and human rights regulation apply (see Particular Rapporteur’s observations in para 10; cf. 2021 Report back to the Human Rights Council). Particularly now that the OTP seeks a number one function for itself in growing survivor-centred justice for slavery crimes, it should take care to not undermine developments rising from the regulation and apply of others who additionally, and infrequently extra routinely, work to that finish.
Comfort and political compromise within the Libya investigation
Whereas the Slavery Crimes Coverage and the OTP’s arguments in Ongwen insist that human trafficking falls exterior the remit of ‘worldwide crimes’ and of ‘slavery crimes’, the Prosecutor has, in one other context, discovered it practicable to depend on the transnational authorized framework regarding trafficking to pursue legal accountability for slavery crimes. Within the Libya state of affairs, the Prosecutor now participates in a Joint Investigation Crew (‘JIT’) with Italy, the Netherlands, the UK, Spain and the European Union Company for Regulation Enforcement Cooperation. Their joint investigation has led to home prosecutions of human trafficking. In distinction to the Coverage’s dismissal of human trafficking as a non-international crime, the Prosecutor credit these trafficking prosecutions as vital steps in bringing an finish to worldwide crimes in Libya and in opposition to migrants fleeing the nation.
Pursuing joint investigations of human trafficking advantages the OTP by permitting it entry to superior transnational legal cooperation mechanisms, particularly, when not the entire crimes throughout the Court docket’s jurisdiction profit from equal, or equally extensively adopted, cooperative frameworks (for instance, see the ILC’s Draft Articles on Prevention and Punishment of Crimes In opposition to Humanity). The Prosecutor’s plan to enlarge its function within the prosecution of up to date slavery presents the opportunity of participating these frameworks, however would require the Prosecutor to make extra political choices about its partnerships. Within the Coverage, the OTP communicates its dedication to an admirable and bold politics:
[T]he Workplace will examine slavery crimes utilizing anti-colonial, anti-racist, anti-ableist and anti-ageist approaches that don’t replicate prejudice. The skilful investigation and litigation of slavery crimes entails the applying of non-biased approaches to serve survivors’ pursuits achieve justice. (para 96)
This Coverage is already beneath strain in Libya. The slavery crimes dedicated in opposition to migrants in or travelling out of Libya implicate Libyan officers and arranged legal teams, European state officers, in addition to people who prepare transport for migrants in any other case trapped in Libya and unable to cross closed-off European borders. The Prosecutor’s reliance on the particular types of legal cooperation out there within the European Union thus entails the selection to align its work with European states regardless of proof of their officers’ complicity within the crimes, together with via the adoption of colonial and racist migration insurance policies that rely closely on criminalization (as Itamar Mann, Violeta Moreno-Lax and Omer Schatz have beforehand mentioned on this weblog). The comfort of uniting with European officers in slavery crimes prosecutions, thus, dangers strengthening racist and colonial workouts of punitive energy fairly than correcting them.
What principled prosecutorial energy requires
Within the case in opposition to Ongwen, the Prosecutor argued that Ongwen’s legal accountability as a ‘excessive rating, excessive functioning’ individual, no matter his personal potential victimization to the identical crimes as a baby, gave impact to the goals of anti-trafficking legal guidelines to stop and fight human trafficking, and to guard and help its victims (Prosecutor’s response, para. 5). This argument concedes that accountability for some crimes might not all the time be according to the pursuits of the survivors of different crimes, and due to this fact entails selections about who to prosecute, when, and in keeping with which guidelines. The Ongwen case and the Libya investigation exemplify the ensuing problem of navigating a number of, overlapping regimes for various slavery crimes whereas persistently respecting the rights and pursuits of the people affected.
As the one everlasting worldwide legal court docket, the ICC is uniquely positioned to work towards systemic coherence throughout our bodies of regulation and lots of jurisdictions. The Prosecutor performs an vital function within the course of via its discretionary powers with regard to case choice and investigative cooperation. The Prosecutor will seemingly proceed to come across the authorized and political challenges that come up from investigations involving fees of human trafficking and different treaty-based crimes. The OTP’s Slavery Crimes Coverage, Coverage on Complementarity and Cooperation and anticipated insurance policies on environmental crimes and cybercrime, foreground the Prosecutor’s curiosity in collaborative investigations that will embody crimes exterior the ICC’s jurisdiction. Provided that analysis reveals that so-called transnational (slavery) crimes can facilitate and be facilitated by the crimes within the ICC’s jurisdiction, it’s unsurprising that responses to those crimes would possibly converge. Beneath such circumstances, a real dedication to ‘anti-colonial, anti-racist, anti-ableist and anti-ageist approaches that don’t replicate prejudice’ requires the Prosecutor to train extra care in its collection of prosecutions and partnerships; the Prosecutor must leverage its energy in service of a cross-regime worldwide jurisprudence dedicated to denouncing abuse and exploitation in all their varieties.
