Constitutive elements of trafficking in human beings. A multifaceted crime.

Abstract:

In 2000, the United Nations approved the first International Treaty against Transnational Organized Crimes, the treaty was followed by two additional protocols. The first one is the “Palermo Protocol to prevent, suppress and punish trafficking in persons, especially women and children”, and the second one is the “Protocol against the smuggling of migrants by land, sea, and air”. Taking into consideration these paramount international regulations, this work aims to examining the purposes of trafficking in human beings by analyzing the modern and long-standing implications in the international dimension. Therefore, the analysis will be dedicated to the investigation of the duties and responsibility of States to adapt their national laws on counter-trafficking, the obligation of realizing the protection of civilians by peacekeeping personnel; the step forward of international tribunals in designing the accountability for trafficking before the Courts. The focus will be also on the concept of sexual exploitation, going through the link between sexual violence, and conflict conditions that trigger people's vulnerabilities. Sexual violence and sexual slavery are, historically speaking, means of warfare or ethnic cleansing, able to destroy the population’s identity. After investigating the link between conflict situations and the risk of trafficking, an overview of the role of anti-trafficking actions within the UN Security Council resolution mandate will be given. Trafficking in human beings is largely part of the Protection of Civilians Mandate, labeled by the United Nations as a primary mandate within peacekeeping missions. Furthermore, going through the decisions of the International Criminal Court, the steps forward made by the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda in the evolution of sex crimes as means of warfare will be investigated. This criminal perspective study will help to outline if the conviction of trafficking in human beings can be recognized by the International Criminal Court as a crime against humanity. To conclude, considering that the efforts of the international community and tribunals in shaping the crime are quite advanced, it will be evaluated, as a concrete praxis, to deal with human trafficking considering an intersectional approach to vulnerabilities and social processes..

Keywords: trafficking in persons, sexual slavery, protection of civilians, criminal perspective, intersectionality.

Introduction:

It might seem anachronistic that still today, elaborating strategies against trafficking in human beings is of great necessity. Just like interstate conflicts are back from the past, trafficking in persons is a highly widespread criminal phenomenon in conflict and post-conflict contexts. Therefore, international actors and lawmakers must strengthen their capacity to detect crime and prosecute traffickers. The way through which international actors implement counter-trafficking actions in the last decades mainly depends on the context where they are responsible to act. For this reason, the analysis will investigate the obligation of signatory States to include in their national laws specific provisions on the contrast of trafficking; then the evaluation of the link between conflicts and sexual crimes will lead to the structure of the protection of civilian mandate and how the Security Council has involved the anti-trafficking mandate. Lastly, the accountability before the International Criminal Court for human trafficking seems an essential step towards decreasing the distance between human rights declarations and the refund of victims. The analysis of these three scenarios will allow us to have a better understanding of the reached goals and the efforts still needed to set an effective capacity to contrast trafficking.

Main body:

The main feature of trafficking in human beings, is its multifaceted nature. It can take several forms, starting from labour exploitation leading towards sexual exploitation, such violations might occur due to the exploitation of the weaknesses of the national system (the absence of workers’ rights) or due to the linkage with wartime. 

Trafficking in human beings (hereafter THB) is a complex crime. It consists of three main aspects, as shown in article 3 of the Protocol to prevent, suppress, and punish trafficking in persons, especially women and children (hereafter Palermo Protocol) entered into force on 25th December after the high-level Conference held in Palermo in 2003. Based on the cited article, the three elements are referred to as the conduct element, the means element, and the purpose element. Under conduct, the provision mentions the following actions: recruitment, transportation, transfer, harbouring, or receipt. For what concerns the means, it refers to threats, use of force, abuse of power, a condition of vulnerability or other forms of coercion that traffickers use in order to control and manipulate victims. The use of such generic terms, such as coercion, makes the commentators able to encompass both physical and psychological pressure, as well as any other form that is not strictly foreseen by the wording of the article. The last aspect of trafficking in persons is the purpose of exploitation. It is crucial to identify exploitation and recognized it as trafficking element. In other words, if the illicit conduct foreseen under article 3 of the Protocol occurs, it cannot be prosecuted as trafficking in persons in the absence of the purpose of exploitation. The exploitative purpose is realized at least through sexual exploitation, forced labour, slavery, removal of organs, or other forms of servitude1. The role of consent is one of the most complex and intriguing topics related to the codification of THB. The Protocol doesn’t state that the presence of any forms of coercion invalidates the consent of the victim. However, the crime is not theoretically elaborated in the absence of consent 2. Whereas the interpretation of the role of consent in trafficking in human beings with adult victims is quite challenging, the irrelevance of consent in the case involving children is clear-cut. The reason for such strict interpretation is due to the assumption that children may not be conscious in their choices and therefore, when it comes to child victims of trafficking, judges do not consider if the children in question, have or have not given their consent. 

On the 15th November of 2000, the General Assembly of the United Nations endorsed the Convention against Transnational Organized Crime, the Protocol to prevent, suppress and punish trafficking in persons especially women and children, and the Protocol against smuggling of migrants by land, sea, and air. On the occasion of the 20th anniversary of the Palermo Protocol on trafficking in human beings, the UN Special Rapporteur for trafficking in persons, especially women and children, Maria Grazia Giammarinaro (2020), stated that the foremost added value of the approval of the Palermo Protocol was the agreement reached among states parties on a shared definition of the crime of trafficking in human beings. In addition, the Palermo Protocol introduced the notion of abuse of power or a position of vulnerability. First of all, by enlisting all the conducts which constitute the crime of trafficking in human beings, the international community allowed the international and national courts to prosecute misconducts that before 2000, weren’t recognized and prosecuted as trafficking in human beings but, at least, as independent criminal acts. Nevertheless, it is worth to remember that the terminology of trafficking, even without any clarification on its content, was already included in the article 6 of the Convention on the elimination of all forms of discrimination against women (1979, CEDAW) and in the article 35 of the Convention on the rights of the child (1989, CRC). 

Secondly, the UN Special Rapporteur for Trafficking in Persons, stated that the introduction of the concept of abuse of power or a position of vulnerability has the intent to enlarge the discretional judgment of the courts to what extent the interpretation of means of coercion. In the same intervention, Giammarinaro underlined the positive effect on the international community coming from the adoption of the two additional protocols to the Convention against Transnational Organized crime. As a matter of fact, after the entry into force of the Palermo Protocol, many instruments to combat trafficking in human beings were issued. Regarding an international level, in 2002 the Office of the United Nations High Commissioner for Human Rights published the Recommend Principles and Guidelines on Human Rights and Human Trafficking; in 2010 The UN General Assembly issued the United Nations Action Plan of Action to Combat Trafficking in Persons. The main feature of the document adopted by the General Assembly is that it informs the subject to a human-rights-based and gender-sensitive based approach. 

At a regional level, many instruments for the protection of victims of trafficking were adopted after the signature of the Palermo Protocol. The Council of Europe approved in 2005 the Council of Europe Convention on Action against Trafficking and a group of experts on action against trafficking in Human Beings, responsible for the implementation of the Convention was established (GRETA); article 4 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa foreseen the obligation of the States to take effective measures to prevent and to protect women, to prosecute traffickers and to condemn this heinous crime; lastly, the South Asian Association for Regional Cooperation adopted the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution3.

Even if the adoption of the Palermo Protocol, represents an important step forward in the fight against trafficking, scholars identified several flaws. According to article 5 paragraph 2 of the Protocol, after signing the international treaty, state parties are required to introduce in their national system, legislative measures in compliance with the purpose of the Protocol and aimed at criminalizing the conducts outlined in the article 3. 

A recent study (Silver S., 2021), discussing the reforms of domestic law in compliance with the international standards, argued that the Protocol doesn’t oblige States parties to approve holistic legislation in order to combat all forms of trafficking. Therefore, article 5 leaves discretion to national authorities in the adaptation of domestic law. Twenty years after the adoption of the Palermo Protocol, Silver (2021) elaborated an analysis of the anti-trafficking domestic laws which showed two main trends. The first one is the trend of those states, such as Israel, which omit to include in the trafficking definition the means element. On one hand, this legislative choice facilitates the prosecution of the crime before the court, on the other hand, due to this broadened definition, national authorities can enlarge the definition without aligning with the international standards. Conversely, these States, usually don’t foresee the exemption of the means element when the crime involves a child victim. 

The second trend is represented by those States, such as the United Kingdom and Australia, that require the movement element in the base offense of trafficking. The movement element is not encompassed in the definition provided by the Palermo Protocol, albeit some conduct therein has the inherent action of movement. Applying a comprehensive interpretation of the Palermo Protocol and of the Convention on Transnational Organized Crime, Article 34 of the Convention states that state parties shall adopt their domestic anti-trafficking laws without taking into consideration the transnationality of the crime. Consequently, some countries wouldn’t assist victims of trafficking who haven’t crossed the borders, even if, under international law, they will have the right to be protected. The author (Silver S., 2021) concluded her research by driving attention to the eventual consequence in terms of multinational cooperation in combating trafficking. In other words, not aligning national anti-trafficking laws with the international standards in terms of the definition of trafficking in human beings and its constitutive elements, would hinder the cooperation and the joint actions between law enforcement teams in prosecuting this multifaceted crime. 

According to the opinion of the former UN Special Rapporteur for trafficking in persons, Maria Grazia Giammarinaro (2020), the general Palermo Protocol’s shortcoming is in the drafters’ attitude to privilege the repressive approach against criminal networks and migration management rather than the human rights dimension. The former UN Special Rapporteur stated that the protocol inspiration is mainly focused on the criminal justice response, and it is evident in the provisions of the international legislation dedicated to the protection of victims of trafficking and their status. Under article 7 of the Palermo Protocol, the State shall deal with the issuing of the permit to stay considering humanitarian factors. This approach is criticized because it is up to the State to outline conditions to stay or to be repatriated, without any clarification on the right of appeal. Lastly, the former UN Special Rapporteur concluded that, in the whole Protocol, there is no mention of the concept of the non-punishment of the victims for acts committed as a result of their being victims of trafficking. Therefore, many State parties of the Protocol didn’t include in their domestic anti-trafficking legislation provisions with this content.

In 2014, the UN Special Rapporteur for trafficking in persons, Joy Ngozi Ezeilo, presented to the Human Rights Council, the Recommended Principles and Guidelines to Human Rights and Human Trafficking. According to the second principle, states have the legal responsibility to prevent trafficking, investigate and prosecute traffickers and to assist and protect trafficked persons. In other words, state must respect a particular standard of care, able to ensure the respect of the right to effective remedies. The UN Special Rapporteur defined such obligations as substantial and procedural identified in the restitution, rehabilitation, compensation, and satisfaction and guarantees of non-repetition 4. The UN Special Rapporteur with the report on  Promotion and protection of human rights issued in 2014, expressed the necessity to ensure the fulfillment of a smooth identification procedure and the removal of the legal obstacles present in the national system, able to deny assistance and protection to the trafficked persons. 

To the extent of the State's responsibility to protect and assist a victim of trafficking, the turning point is the judgment by the European Court of Human Rights Rantsev v. Cyprus & Russia. Farrior (2010) concluded that the decision of the case law was crucial because the Court recognized that, trafficking in persons, even if not foreseen in the Convention as an autonomous crime, falls within article 4 of the European Convention of Human Rights (Slavery and Forced labor). The argument beyond this orientation is the Convention's special features of being “(..) a living instrument which must be interpreted in the light of present-day conditions”5. Moreover, the Court, stated that States have positive obligations to combat trafficking and to implement measures to make the fight effective. The reasoning of the Court comes back to the content of the recommended principle number 2, which recalled the State to put in place measures to protect trafficked persons as well as prosecute traffickers.  

In 2020 The United Nations Office on Drugs and Crimes issued a Global Report on trafficking in persons and the outcome of that report is that 50% of victims are trafficked for sexual exploitation, 38% for labor exploitation and 6 percent for forced criminal activities. Looking at the phenomenon of trafficking for labor exploitation, one of the main features is the fact that it can affect several economic sectors: domestic servitude, agriculture, fishing industry, mining and construction industry. Although labor exploitation may occur in very different economic sectors, trafficking for labor exploitation maintains the same characteristics: lower salaries and protection, informal employment, increasing number of working hours 6.

Besides the Palermo Protocol, the legal framework related to the forced labor includes the International Labor Convention n. 29 (1930), the Additional Protocol on Forced Labor n. 203 (2014), the international abolition of forced labor Convention n. 105 (1957). These legal instruments determine the international labor standards on forced labor and become the tools of the international community to fight labor exploitation. 

Analyzing the exploitation of workers within the construction industry, it seems that the majority of victims are male and that the demand requires a higher level of low-skilled workers, often hired with a subcontracting procedure. Particularly interesting are the criticisms raised for the selection of Qatar as hosting country of the World Cup 2022. Due to Qatar’s reputation for the respect of workers’ rights, commentators argued that it was an opportunity to launder it through sports. In other words, by hosting such a world event, Qatar would have improved its imagine worldwide and hidden the poor work conditions endured by people (Nilsson E., 2022). 

In 2017, Qatar introduced a reform of its labor law aiming an increasing the minimum waging and eliminating the Kafala system. The Kafala system is a sponsorship system which restrict the freedom of workers to quit their work and leave their employer. As a matter of fact, the investigation of such delicate subject must take into consideration all the structural and cultural differences among country. (Griffin A., 2021). 

In this scenario, many workers are migrant workers who have fled their home country due to the lower job offers. As a result, they represent a huge labor supply and the hypothetical violations they can suffer might occur at different stages of the migration life cycle. In the recruitment phase, migrants tend to trust brokers providing information on how to obtain a work visa. In addition, work visas are often obtained as a result of corruption; In the deployment phase, workers are obliged to take other loans to travel to their work destination; in the employment phase they usually work over 60 hours per week in inhumane work conditions (Ganji K., 2016). Following the commitment of the International Labor Organization at an international level in 2011, The United Nations issue a non-binding document the UN Guiding Principles on Business and Human Rights. First of all, the principles aim at ensuring the state obligation to protect individuals against human rights abuses committed by third parties by preventing, investigating, punishing and redressing abuses. Moreover, the Guiding Principles affirm that corporates have the responsibility to respect human rights by adopting due diligence able to mitigate and contrast negative impact of human rights violations (Bonnitcha J. et all., 2017). It is noteworthy that UN Guiding Principles refer to those human rights internationally recognized and enshrined in the Bill of Rights. Lastly, the third pillar of the Principles is the right of the victims to access to effective remedy through judicial and non-judicial means. The legal instruments implemented appear all very virtuous, however their enforcement is usually quite challenging. In order to find the causes of this trend, it is crucial to consider that national legal frameworks are ill-prepared for the prosecution of trafficking in economic sectors and very often officers are not always able to identify indicators of trafficking. Many domestic laws require the physical restriction of victims to convict who is in charge of exploitation. Hence, many cases fall into impunity. Difficulties in detecting trafficking in supply chains come from the plurality of actors that make the identification of traffickers problematic7. Furthermore, what enhance vulnerabilities of trafficked persons for forced labor is the power detained by employers and the bound of the workers who keep working in inhuman conditions rather than deciding hazardously to leave.

When it comes to such complex contests and harsh working conditions, the respect of law appears too remote to reach. Therefore, it seems a good practice to start from the study of the intersectional elements of vulnerabilities to restrict gaps that might occur between legal instruments and reality.

For what concerns the endemic relation between trafficking in human beings and conflict and post-conflict situations, it seems appropriate to define conflict as a multiplayer of population vulnerabilities (Giammarinaro M.G. 2022). Among scholars and international actors, this is the most popular interpretation of the way in which conflict fosters the risk of trafficking. Looking at the report of the UN Special Rapporteur issued in 2016 (A/71/303), two are the main comments in regard to trafficking and conflicts. On one hand, is underlined that those conflicts intensify pre-existing weaknesses and forms of discrimination, due to the absence of a well-structured center of power. Moreover, as a result of the destruction of the national government, it increases a climate of impunity that traffickers can benefit from. 

According to this interpretation, women and children are the categories more at risk. The former are vulnerable because they are often denied access to social and economic resources and so, they remain dependent their male relatives. The latter are vulnerable by nature, due to their condition of being still in the process of growing. 

Said that, in a conflict or post-conflict situations vulnerabilities are rather intersectional (e.g. sex, ethnicity, gender, nationality), it is worth to remember that trafficked persons are fragile also because, due to the outbreak of the war, they are obliged to flee their countries. Usually, while escaping from conflict zones, people must agree to pay a fictitious debt in order to leave their country. Through the creation of the fictitious debt, traffickers manipulate those who want to leave, and, in exchange of a safe passage or survival, escapers become victims of labor or sexual exploitation. 

Despite the fact that trafficking is an endemic misconduct related to the conflicts, the international system provides different legal tools declaring the unlawfulness of the exploitation during conflicts and post-conflict situations. As we know, during an armed conflict the international humanitarian law is applicable. At the basis of this branch of law there are the principle of proportionality, the principle of distinction, the principle of military necessity and the principle of humanity. These four principles represent cornerstones in the development of all other international humanitarian regulations. 

It is worth to focus on the principle of proportionality because it is one of the core principles of international humanitarian law and a general principle under international law. Under international humanitarian law, the principle of distinction establishes that attacks must never be directed against civilians, however, when the attacks are incidental, international humanitarian customary law 8, states that attacks are prohibited if the loss of civilians would be excessive respect to the military advantage anticipated. Beyond the principle of proportionality applicable under Jus in bello, is easy to find the purpose of the entire international humanitarian law, devoted to limit the effects of war and reduce human suffering. 

Proportionality is also treated under international human right law, as one of the basic principles in the use of force along with legality, accountability and necessity. The use of force must be unavoidable and proportional to lawful objectives. At the same time the principle of proportionality, as general principle of international law, might drive the balance between human rights. In this scenario, and according to article 4 of the International Covenant on Civil and Political rights, States can derogate their human rights obligations in time of declared emergency and up to the necessity, without any discrimination on the ground of race, sex, color, religion, language and social origins 9. On one hand, the Covenant allows the derogation of rights such as freedom of expression when it has a discriminatory content, or freedom of movement when it comes to pandemic. On the other hand, under international human rights law there are some absolute rights such as freedom from torture, inhuman and degrading treatment, the right to equal recognition before the law or the prohibition of slavery that wouldn’t be derogated under any circumstances 10.

Going back to the international humanitarian law and gender-based violence, international humanitarian customary law 11 states that: “Rape and other forms of sexual violence are prohibited”; in addition, the common article 3 of the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. Article 27 of the fourth Geneva Convention declares that “Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault”. Moreover, the two additional Protocols to the Geneva Convention affirms that “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”. Considering the noteworthy development of international humanitarian regulations and the common use of rape as a mean of war (O’Brien M., 2011), the relation between conflict situations and a misconduct based on the exercise of control and power on the victim, becomes a pre-existing argument when it comes to the protection of civilians in armed conflicts. 

Despite the remarkable attention to the prohibition of sexual violence under international humanitarian law, other branches of law provide specific protection to the human dignity damaged by sexual violence or sexual exploitation. To reflect such protection, it is worth mentioning the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (1966), which constitute part of the International Bill of Rights and where the provisions on the right to life, liberty and security, the freedom of torture and freedom of slavery are enshrined. To conclude, when a cease-fire is reached, sexual violence, and sexual exploitation are prosecuted as well under human rights law (O’Brien M.,2015).

In 2015, the President of the Security Council effectively addressed the trafficking issue by recalling member states to the implementation of the several United Nations Security Council Resolutions concerning the protection of civilians and the anti-trafficking actions. The President recalled member states upon their duty to implement regulations on identification mechanisms and access to protection, especially in relation to the conflicts12. Two are the most powerful arguments expressed by the President. Firstly, was recognized the nature of sexual and gender-based violence as part of the ideology of terrorist groups. For what concerns UN peacekeeping and peacebuilding efforts, she reaffirmed the prohibition to penalize trafficked persons due to their involvement in unlawful actions. In other words, the President supported the implementation of the principle of non-punishment of victims of trafficking for misconducts committed as a result of the involvement in illicit networks. 

Even if the President statement shows a large commitment in raising awareness of the international community on such delicate topics, the need to shed the light on the protection of civilians during conflicts and in post-conflict situations already emerged in 1999. It was the UN Security Council Resolution n. 1265/1999 that, for the first time, dealt with the negative impacts of conflict on the civilians and the protection, through UN peace operations, was involving in the resolution mandate13. Since 1999, the mission mandate has become more and more detailed to the point that in the Security Council resolution deploying the UN mission in Mali, instructs UN personnel to support investigative and judicial activities to detect mass atrocities and transnational organized crime. The protection of civilians mandate stated, in a clearer way, the need to contrast the smuggling of migrants and trafficking in human beings. Moreover, scholars (Bove V. and Ruggeri A., 2015) concluded that the presence of peacekeeping missions has a huge impact on the restraint of violence against civilians. They suggested that UN personnel has a deterrence function, meaning that their presence avoids the widespread of violence against civilians in non-conflict areas. Moreover, after the cease-fire, local authorities are more committed to follow legal routes to set up governmental structures. Lastly, peacekeepers represent an enormous source of information thank to their constant proximity to the population. As a matter of fact, by sharing information, the UN personnel has a crucial role in the peacemaking process. 

The development of the resolution mandate is coherent with the tremendous transformation of peace operations during decades. With the expression “peace operations” we refer to all forms of peacekeeping authorized from the UN security Council (Diehl P. and Druckman F., 2018). However, in the practice, United Nations have developed different forms of peacekeeping depending on the phase of the conflict in which they are deployed and their purposes. Over decades the deployed actors have changed, and the mandates started to overlap to become integrated (e.g. a clear-cut example of an integrated mandate is the relationship between the protection of civilians mandate and the child protection mandate). The current situation of the UN deployments is the outcome of a long-term transformation which started with the cease-fire monitoring missions, through peace operations specialized on electoral observation, on rule of law, on the delivery of humanitarian assistance to the protection of population from human rights abuses and violations (Diehl P. and Druckman D., 2018).

Each word of the protection of civilians mandate represents a landmark in pursuing the security of civilians. As we know, at the basis of peacekeeping mission there are three milestone principles: the consent of the parties, otherwise the mission would become part of the conflict and the intervention would be an enforcement operation; the impartiality of the mission in order to ensure United Nations credibility and cooperation among actors in the field, the prohibition of the use of force (Peter M.,2015). It is good to remember that under international law the prohibition of the use of force against the integrity or the sovereignty of a national state is a general principle of customary law, enshrined in the article 2 paragraph 4 of the UN Charter. 

Within the mission, peacekeepers may use the force when authorized by the Security Council, acting in self-defense or in defense of the mandate (Peter M.,2015). Therefore, looking at the wording of the mandate, resolution become crucial in the investigation of the aims of the mission and the means allowed. Peacekeepers must protect civilian according to their available resources to fight the threats in the area in which the mission is deployed by using “all necessary measures”. The presence of this last sentence is quintessential to have a better understanding of the limit of the peacekeeper’s intervention. As a matter of fact, by using the terms “all necessary measures”, the Security Council allows UN forces to carry out all necessary action up to and including deadly force. Another important issue regarding the protection of civilian is the role of the hosting state which has agreed to the deployment of the mission. The primary responsibility of the protection of civilian bears on the host state and, only if the State is unable or unwilling to fulfill its duty, UN forces must take over as a subsidiary actor.14 As a resulting course of actions, if the national state is responsible for human rights violations against civilians, peacekeepers are, under their mandate, obliged to intervene even against the will of national government.

The obligation to act against the hosting state responsible for human rights violations - bearing on the personnel deployed - seems coherent with the primary responsibility of the government and all its institutional actors to protect, respect, and fulfill their human rights obligations.

The commitment of the United Nations to contrast trafficking in peace operations is well-defined in the UN Security Council Resolution 2331/2016. Among the most important statements, there was the priority to set up procedures ensuring the identification and assistance of victims of trafficking and the recognition of the strict link between trafficking, gender-based violence, and conflict-related sexual violence15. 

Looking at the experience in the field, many are the best practices that have been collected in the last “2021 Annual Summaries of Activities and Good Practices in Preventing and Responding to Conflict-Related Sexual Violence by United Nations Peacekeeping Missions”. 

Four are the peacekeeping mission that has been tasked by the Security Council with the specific mandate to prevent and respond to CRSV, and those are MINUSCA in the Central African Republic (CAR), MINUSMA in Mali, MONUSCO in the Democratic Republic of Congo (DRC), and UNMISS in South Sudan. In Mali, sexual violence is the most perceived risk among girls and the second for women living in conflict areas. Unfortunately, what we have analyzed before, is confirmed by data since, in CAR and South Sudan, sexual violence is a toll of control of rival ethnic communities and a means of retaliation against civilians in conflict areas. 

One of the first shortcomings underlined concerning the Palermo Protocol was the absence of a victim-centered approach instead of a criminal response. However, the information provided by the Annual summaries is in contrast with this argument. MINUSCA field offices have involved survivors of sexual violence in politics, especially in the renewal of peace agreement. The program is aimed at rebuilding the relationship between survivors and the society they rejoint. In addition, to empower victims of sexual violence, all the cited United Nations missions have published videos and public statements on the stigma endured by the victims to sensitize locals on avoiding marginalization and guilty feelings in survivors. Among the best practices collected, it is worthy to remind the constant implementation of training modules. The CRSV modules were developed by MINUSMA and the Malian Police to increase the capacity of the national police in addressing those sexual crimes.  

As we know the operational concept of protection of civilians in peacekeeping is made up of three tiers that can be implemented simultaneously or not. The three tiers are protection through dialogue and engagement, the provision of physical protection, and the establishment of a protective environment. These operational concepts are useful to read the activities implemented by the MINUSCA personnel in CAR. During the annual transhumance, sexual violence is quite common therefore, the mission has increased patrols and involved community leaders in the identification process of sexual violence cases. The involvement of the local community in the detection of sexual violence and aggression might be identified as one of the foremost episodes of protection through dialogue and engagement.

For what concerns the accountability for sexual violence cases, all the cited peacekeeping missions have developed best practices to avoid impunity for perpetrators by affecting the rule of law and the judiciary of the hosting states.

MONUSCO allowed victims and witnesses to participate safely in the trial against a former armed group, found guilty of rape, murder, use of children, and convicted of crimes against humanity to life imprisonment. Moreover, in Mali, a team of experts in the Rule of Law elaborated an evaluation report on conflict-related sexual violence cases, pending before the Court, to identify the most overriding ones. Regarding the reparation for victims, all the cited peacekeeping missions create a partnership with the Global Survivor’s Fund to increase and facilitate access to redress. Lastly, strong support came from the synergy between the mission and civil society organizations that have been crucial in Mali in the re-establishment of the criminal justice chain. Their efforts were dedicated to the collection of evidence of the violations, setting up the criminal proceedings before the Court, and assisting victims during the trial16. The examples of best practices provided by the United Nations Department of Peacekeeping Operations tried to reduce the impact of sexual violence on the community and they seem mandatory action to effectively address and prevent trafficking in human beings for sexual exploitation. As a matter of fact, rape might be the first step, especially in conflict zones, to create an illicit network of sexual slavery. Therefore, exploring the field under which circumstances sexual violence occurs means addressing possible future trafficking cases by analyzing the intersection between gender, class, race, and social process.

In 2009, the Security Council Resolution declared the priority of the protection of civilians mandate, “reaffirming that parties to armed conflict bear the primary responsibility to take all feasible steps to ensure the protection of civilians” 17. Beyond these words, there is the intention to shed the light on the critical issue of targeting of civilians during conflicts.

Albeit the principle of distinction and the prohibition of attacks directed to civilians seems to be fixed in the stone as the first rule of customary law under international humanitarian law, civilians are constantly targeted by the parties of the conflicts (Bove V. e Ruggeri A., 2015). 

Sexual assault as a gender-based violence is historically part of war strategies. In roman literature, we read one of the most ancient episodes of women assault during a war: the abduction of the Sabine Women. Historians debated if the purpose of the abduction of Sabine women was the intent to have more women, to give birth to more children and strengthen the new state or if it was merely a sexual assault. Whatever the aim of the abduction was, the scheme seems to be the same in the early history of Rome as well as in nowadays. As a result, the landmark resolution of the Security Council number 1325 on women, peace and security was issued in 2000 and therein member states were called upon the respect of international law, international humanitarian law and international human rights law provisions applicable to the right and protection of female civilians from gender-based violence, especially rape or other sexual abuse in situations of conflicts. 

During conflicts, sexual assaults against women may be used as an indirect attack against men, to weaken them and prove that they can’t protect women (O’Brien M., 2015). Rape in wartime might have different reasons: it might be perpetrated as a tactic to humiliate, intimidate and torture the enemies with obvious consequence on women ‘identity. In many societies, women victims of rape lose their purity and therefore are condemned along with their children to the society stigmatization. If we look at genocides, rape aims to destroy a particular ethnic group or a genus of people, creating an ethnic cleansing. 

This is what has happened in Rwanda where Tutsi women were highly targeted due to an effective propaganda against them (Weitsman P., 2008). The purpose of rape as a weapon of war is clearly expressed in two landmark judgments. The first one is the case law Prosecutor v. Akayesu before the International Criminal Tribunal for Rwanda. In that judgment rapes were encompassed under the rubric genocide because the occurrence of genocide has been already met. This assumption is noteworthy due to the fact that the Court recognized that the mens rea of genocide - the intent to destroy, in whole or in part, a national, ethnical, racial or religious group"- was given. In the second case law Prosecutor v. Kunarac the rape recognized within the legal framework of the crime against humanity. As a result, the burden of proof of the mens rea was lower, having to demonstrate the knowledge of the consequence of misconducts that is the widespread and systematic attack against civilians (Fountain C.J., 2013) 

The consequence of rape campaigns during armed conflict affects the identity of the population. In the war’s aftermath stigmatization affects not only raped women, who have lost their social value, but also children who are labeled as “children of hate”. As an example, the intention to impregnate Bosnia Muslim women was the foremost objective in the mass sexual assaults committed in Bosnia in 1992 (Weitsman P., 2008). As we know, when rape is used as a war strategy the aim is to destroy the population’s identity. With a similar purpose, cultural heritage is also very often under attack as a way to undermine a population affecting its memory and critical history and complicating the reconciliation process after the war. All the parties involved in the conflict might find a way to heal by going through a process of reconciliation with their history and culture, therefore a restart could stem from their cultural heritage (Avrami E. et all., 2019).

This analysis has shown the linkage between conflicts and sexual assaults, however in many cases maybe something more occurred (Weitsman P., 2008). 

According to the Nigerian terrorist practice, young women are abducted and sold as sexual slaves on the market in order to reward combatants (Giammarinaro M.G. 2022); in Rwanda, Hutu combatants abducted Tutsi women and held them for years as sexual slaves. This narrative clearly expresses the interconnection between terrorism, trafficking in human beings and conflict related sexual violence. The conflict related sexual violence can conduct to trafficking in human beings and likewise trafficking and conflict related sexual violence can facilitate the terrorist groups (De Brouwer A. et all., 2020). 

Despite the fact that under the Rome Statue trafficking in human beings is not codified and the Palermo Protocol doesn’t provide commentators with a definition of exploitation, it is noteworthy to investigate the development of sex crimes and its possible connection with the crime of trafficking. Firstly, enshrined in the International Criminal Court Statute, there are many misconducts like rape, enslavement, sexual slavery, enforced prostitution, forced pregnancy, torture or inhuman and degrading treatment that might be at the basis of the exploitation according to article 3 of the Protocol. 

It is not predictable if article 7 of the Rome Statute will become the legal basis for future convictions. Nevertheless, it could happen considering the great contribution of the international tribunals on the jurisprudence development around sexual crimes. Without the interpretation and definition provided by the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for former Yugoslavia on rape, enslavement, and the differences between the latter and sexual slavery, it wouldn’t be possible to introduce nowadays trafficking in persons as crimes within the jurisdiction ratione materie of the ICC. 

The first milestone case law was the Akayesu case. In 1998 the Trial Chamber I of the International Criminal Tribunal for Rwanda expressed the first definition of rape under international law. The Court stated that rape is “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”18. For what concerns the consensus element, Akayesu affirmed that under conditions of genocide, the sexual act would never have been consensual. As a result, consent wasn’t an element of consideration in the crime of rape. 

The first definition of rape was posed, and it was recognized as crime against humanity and as a crime of genocide, however it was revised from the International Criminal Tribunal for Former Yugoslavia (ICTY). In the Furundzija case, the ICTY detailed and expanded the concept of rape providing definitions of acts and body parts affected by the crime and recalling the circumstances of coercion. With the conviction of Kunarac, the ICTY added the crucial element of consent by saying in §129 of the Appeal judgment that the absence of consent is a conditio sine qua non of rape and that “Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape” (MacKinnon A., 2006). 

As we know, the Statute of the International Criminal Court doesn’t codify trafficking in human beings as actus reus. However, the interpretation of article 7 of the Statute might be used as the legal basis of the conviction for trafficking. Article 7 foresees under the first paragraph all acts with a sexual nature. On the contrary, the second paragraph of article 7 codifies the conduct of enslavement, interpreted as the exercise of any or all of the powers attaching to the right of ownership over a person. This classification seems really clear-cut; however, the drafting of article 7 was quite controversial. 

During the negotiation of the Rome Statute, there were two different orientations on the structure of article 7 concerning enslavement and slavery. Some State delegates proposed to elaborate one single category of crime where enslavement would encompass sexual and labor trafficking, and slavery would have been a subcategory of the principal crime. This approach was criticized because it would have enlarged the number of actus rei, weakening the gravity of all mentioned conducts. Others State delegates, trying to avoid this outcome, recommended to separate sexual slavery and enslavement. By doing so, enslavement would have encompassed all crimes involving the exercise of power of ownership on a person, whereas sexual slavery only the conducts implying sex nature. The drafters supported the separation of the two crimes to highlight the relevance of sexual crimes (Alhadi N., 2020).

Although the Rome Statute separates sexual slavery and enslavement, legislations are living instruments, therefore a clear interpretation is crucial to enforce the law. The interpretation of article 7 of the Rome Statute has been controversial just like its formulation. Scholars argued that the interpretation of article 7 must consider the crime of enslavement as part of customary law and jus cogens, so mandatory. In addition, the notion of slavery and enslavement has evolved in customary law. Given this assumption, scholars suggested a broad interpretation of enslavement able to include new forms of acts committed with the intention to produce physical suffering and psychological trauma (Pocar F.,2007). 

Based on this interpretation the Appeal Chamber of the International Criminal Court for Former Yugoslavia in the case law Prosecutor v. Kunarac, declared that the absence of a complete ownership in not an obstacle to identify and recognize enslavement. With this decision, the Tribunal applied a broader definition of enslavement which didn’t correspond to the formal power of ownership (chattel slavery). Moving to the identification of trafficking as a crime against humanity and, as a result of this interpretation, to identify enslavement as crime against humanity, the burden of proof would have been satisfied if prosecutor demonstrate that traffickers participate in the creation of something similar to ownership (Alhadi N., 2020). 

Among the factors that have to be taken into consideration when it comes to convictions for trafficking in human beings before an international tribunal, there is the chronological order in which regulations were issued. The Palermo Protocol was adopted in 2000 and the Statute of the International Criminal Courts was signed in 1998, therefore the definition of trafficking in human beings is not included in the Rome Statute. As a result, in the Court decisions, there is no room for an express conviction for trafficking. The only useful tool available for international judges might be the interpretation of the Statute, starting from the conduct of enslavement and sexual slavery already present among the provisions. Considering this discrepancy, scholars argued that trafficking in human beings for sexual or labor exploitation can smoothly result from the conducts enlisted in article 7 of the Rome Statute (Pocar F., 2007).

Conclusions:

From the analysis of the human trafficking legislation, the anti-trafficking mandate in the peacekeeping missions, and the International Criminal Court decisions, emerged that the prosecution of this heinous crime is more developed in its formal and juridical aspects rather than in the practice. In conflict or post-conflict situations the lack of awareness of trafficking indicators is not the only obstacle that actors in the field must face. Setting up referral systems, mechanisms of assistance for victims, and supporting their social reintegration requires the presence of well-structured institutions and civil society organizations that often cannot be present in destabilized contexts. 

Considering all factors that might concur in the elaboration of an effective anti-trafficking strategy, it seems worthwhile to consider an intersectional approach. 

The theory of intersectionality works as an analytic mechanism able to detect the intersection between factors such as gender, class, race, sexuality, and social processes. It has been applied to the phenomenon of smuggling and conceptualized as a useful tool to create “frameworks that capture dynamic social relations and question the power of accepted criminological categories”. As a result, the identification of trafficking cases must avoid fixity and taxonomies such as victimization, suffering, and humanitarian (Sanchez, G. 2017). Using the intersectional-informed approach in addressing sex trafficking means considering each social identity and situation where the threats occur and not approaching victims as a homogeneous group (Vollinger L. 2020). In other words, intersectionality appears as a critical praxis proceeding through empirical assumptions that analyze social dynamics as the foremost source of vulnerability.

At the end of the day, trafficking in human beings might appear even more complex than at the beginning, albeit the work investigated a few small components of it. “Humanity” is a volatile word and starting by calling things by their proper name represents a step backward from impunity. 

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2 United Nations Office for Drugs and Organized Crime, Issue paper. The role of consent in the trafficking in persons protocol, 2014, pp. 23-28, available at https://www.unodc.org/documents/humantrafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf and Cfr. United Nations Office on Drugs and Crime, Legislative Guide for the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organized crime,2020, p. 39,available at  https://www.unodc.org/documents/human-trafficking/2020/TiP_LegislativGuide_Final.pdf.

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