Editorial

Welcome to the Special Issue of the Journal of Human Trafficking, Enslavement and Conflict-Related Sexual Violence Sexual (JHEC). The Special Issue is a dedicated and overdue conversation between two communities concerned with conflict-related sexual violence, namely, the community in pursuit of trafficking in persons and the community seeking redress through slavery crimes.

The origins of JHEC emanate from exploration and promotion of the safeguards of the complex legal frameworks of slavery crimes and trafficking in persons. Trafficking in persons, a transnational crime, as defined in the UN Palermo Protocol, requires broad inter-state cooperation to combat conduct closely associated with organised crime. Trafficking in women and girls is also a human rights violation of Article 6 of the Convention for the Elimination of Discrimination Against Women. Slavery and the slave trade are treaty and customary-based international crimes, with origins in the 1926 Slavery Convention and 1956 Supplementary Slavery Convention. Slavery and the slave trade are also human rights violations found in Article 4 of the Universal Declaration of Human Rights and Article 8 of the International Covenant on Civil and Political Rights, respectively. Each of these legal regimes is distinct, yet there are ‘moving parts’ or potential evidentiary acts or terms that overlap. Accordingly, their specific aims are misunderstood, their requirements frequently confused or conflated and their complementary jurisdictional venues underutilised. Consequently, sexual violence survivors of conflict-related slavery crimes and of trafficking are deprived of a full access to justice and redress.

For example, Security Council Resolution 2331 (2016) and Security Council Resolution 2338 (2017) firmly condemn trafficking in persons in areas affected by armed conflicts and in post-armed conflict situations. The resolutions refer to trafficking as evinced in the trade and sale of persons undertaken by the Da’esh and conduct by non-state militias such as Boko Haram and the Lord’s Resistance Army for purposes of sexual slavery and sexual exploitation. Security Council Resolution 2338 also references the abduction of women and children and violations of international law with associated acts of trafficking. However, Security Council Resolutions 2331 and 2338 refrain from clarifying the acute differences and compatibility between the war crime of the slave trade and trafficking of persons in areas affected by armed conflict. As such, the resolutions have fostered misunderstanding about the distinct legal frameworks of trafficking and slavery crimes.

Similarly, Article 7(1)(c) of the Rome Statute of the International Criminal Court (ICC) that defines enslavement as ‘crime against humanity’ can be misconstrued. The explanatory paragraph of Article 7(2)(c) indicates that ‘enslavement’, the exercise of any or all powers attaching to the right of ownership over a person, includes the exercise of such power in the course of trafficking in persons, in particular women and children. The actual elements of enslavement, found in the Elements of the Crimes’ Document of the ICC, however, do not encompass trafficking; the only reference to trafficking is found in a footnote, which stipulates that evidence of trafficking can help establish the elements for enslavement. This similarly applies to the crime of sexual slavery, as both a crime against humanity and war crime. In reality the ICC does not have jurisdiction over the transnational crime of trafficking. The imprecision of the drafting has created a misapprehension between the transnational crime of trafficking and the international slavery crimes. The practice, policymaking and judicial responses to trafficking and slavery crimes are weakened by the ambiguity.

This Special Issue of JHEC aims – in earnest conversation – to unravel slavery, the slave trade, and to a lesser extent sexual slavery, from trafficking in persons, in order to accurately identify, acutely interpret and appropriately use their specific safeguards for survivors and victims. It presents an excellent conversation, propelled by keenly thoughtful and lucidly structured contributions by respected academics, practitioners, policymakers and civil society advocates in the field of conflict-related sexual violence and trafficking or slavery crimes. This Special Issue starts with an introductory article by the undersigned editors. It begins the discussion by laying the little understood background and contemporary challenges of trafficking and slavery crimes as manifested in or associated with armed conflict. The article augurs well for a refined understanding at the international level of the justification for these distinctive legal frameworks. It urges a complementarity approach to enforcement that acknowledges and completely respects survivors and victims.

The first contributor who enters into the conversation is the Special Rapporteur on Trafficking in Persons, Professor Siobhán Mullally. Her article derides the limited protection, and thus, the frequency of impunity regarding trafficking in persons, especially during armed conflict. Special Rapporteur Mullally points to SC Resolution 2331’s (2016) recognition that “trafficking in persons entails the violation or abuse of human rights, and underscoring that certain acts or offences associated with trafficking in persons in the context of armed conflict may constitute war crimes” as the United Nation’s clarion call to redress conflict-related trafficking. Citing to her reports, Special Rapporteur Mullally draws a plumbline between the rule of law and societal breakdowns and the flourishing of trafficking offense during periods of armed conflict and in their direct aftermath. In particular, she reiterates that unredressed trafficking offenses equate to relentless sexual exploitation, especially for women and children, such as in Ethiopia. She urges a vigorous and vigilant use of multi-prong judicial access for all trafficking survivors, whether it be through human rights mechanisms, international criminal venues or through national laws. Her interpretation of judicial accessibility, such as arguing that trafficking resides within the jurisdiction of the Rome Statute of the International Criminal Court, contrast with the interpretations of the authors of other contributions. However, the spirit of dialog and conversation in this Special Issues acknowledges contestation and diversity of views. Special Rapporteur Mullally contribution’s intention is to advance protection for all victims and survivors of trafficking.

The second contributor is the renowned UN expert, the Special Representative of the Secretary-General on Sexual Violence in Conflict (SRSG), Pramila Patten. SRSG Patten’s mandate entails to report to the Secretary-General about genocide, war crimes and crimes against humanity, including acts of sexualised enslavement and slave trading as well as sexual slavery, which could furthermore lead to Security Council sanctions for perpetrators of conflict-related sexual violence. She also reports on trafficking associated with conflict as she considers trafficking for sexual exploitation to be a form of conflict-related sexual violence. The Team of Experts of the SRSG advise and interact with national judicial actors on sexual violence characterised as international crimes and as the transnational crime of trafficking. SRSG Patten offers multiple perspectives from her practices of advocating the enforcement of trafficking and slavery crimes at the international and national levels. In this respect, it should be noted that there is some overlap between the mandates of SRSG Patten and the Special Rapporteur on Trafficking in Persons and the Special Rapporteur on Contemporary Forms of Slavery.

The contribution of Aimée Comrie – who works at the United Nations Office on Drugs and Crime – is aptly entitled ‘Moving Parts: At the Intersections of Trafficking in Persons, Slavery, and the Slave Trade’. Ms Comrie deftly assesses the intersections of trafficking in persons, slavery and the slave trade. She denotes their similarities and contrasts, arguing for a context-specific case-by-case evaluation upon investigating or prosecuting the underlying conduct of trafficking, slavery or the slave trade. She accepts that the legal concepts are closely related; in some jurisdictions they subsume the other while in others they might comprise proof of certain elements. Ultimately, she advances that their connections might be fluid and relate to multiple moving parts or areas of overlap, divergence and ambiguity in their frameworks. While trafficking in persons is often equated with slavery in contemporary discourse, the author differentiates some aspects of the crimes and posits that there is value in such differentiation. Her reflection is not purely academic but contingent upon real-life consequences for survivors and victims. She presents visualisations of the relationship between the crimes, then, considers how these moving parts actually work in practice by examining investigative challenges which are reflected in caselaw. Unveiling the conflation Ms Comrie ultimately sees trafficking, slavery and the slave trade as complementary and mutually reinforcing, noting that the international community could redress each crime more effectively and close the persistent impunity gaps and low conviction rates for this heinous and exploitative conduct.

Professor Cécile Aptel, international lawyer and the Deputy Director of UNICEF’s Global Office of Research and Foresight, engages in the conversation with a Q&A with the editors based upon her many years of experience, especially concerning international courts and children associated with armed conflict. Professor Aptel authored seminal articles on conflict-related enslavement of children and focuses her contribution to this Special Edition on her new book Atrocity Crimes, Children and International Criminal Courts: Killing Childhood. In a pensive and enlightened exchange, she exhaustively recounts how historically adult-centric international justice mechanisms have repeatedly denied children remedy and redress. From the International Military Tribunal at Nuremberg to the ad hoc Tribunals for Yugoslavia and Rwanda she details the woeful lack of robust judicial response to children’s subjugation to crimes, conceding that the Special Court for Sierra Leone truly initiated the conscientious judicial turning point. The ICC’s cases concerning children under the control of non-state actor militias and the pursuit of deportation of Ukrainian children presage a necessary continuation of centering redress of the harms inflicted upon children. Significant factors, such as prosecutorial priorities have delayed a fuller addressing of these atrocity crimes, notwithstanding the disproportionate physical, psychological vulnerability experienced. A striking example includes children entrapped during the genocide against the Tutsis in Rwanda or the armed conflict in Afghanistan where children were placed at greater risks of suffering multiple, negative impacts than adults. Among the atrocities crimes upon children, she points out the multiple forms of slavery, including recruitment, forced marriages, child brides or forced work as porters. She underscores that enslaved children as victims of international crimes have not been sufficiently studied, evaluated nor accorded the sufficient legal importance they deserve. Prof Aptel effectively argues for prioritised and targeted investigation, prosecution and adjudication of slavery crimes that engulf children and proposes that consideration be given to specialised chambers devoted to crimes against children within the ICC, as is standard practice in most domestic systems.

The Special Issue’s conversation further explores the role of international courts with the perceptive contribution of Professor Rosemary Grey of Sydney University, entitled ‘Bred “Like Cattle”: Forced Procreation in the Extraordinary Chambers in the Courts of Cambodia’. Professor Grey concisely examines the experience of adjudicating enslavement as a crime against humanity at the Extraordinary Chambers in the Courts of Cambodia (ECCC). Professor Grey pursues the procedural and substantive paths that the evidence of enslavement, in particular the intersection of reproductive and sexual violence inflicted upon men and women, underwent at the investigative stage and at trial. Grey underscores the different forms of enslavement committed by the Khmer Administration to execute the genocide and illustrates a broader conceptualisation of forced procreation. The insufficient jurisprudence of the Khmer regime’s role in forcing or coercing its citizens to produce children as the future citizens of the Khmer nation has received scant legal attention. Professor Grey’s analysis of this forced procreation practices highlights its unrealised potential for deepened investigation, prosecution and adjudication before the ECCC. Provisions under crimes against humanity, such ‘other inhumane acts’ or ‘enslavement’ would have provided compelling characterisation of these acts. However, no such charges were laid despite abundant and ample evidence of forced marriages and childbirths. Professor Grey duly considers the resulting legal gap in the ECCC charges and judgements, drawing on Sellers’ concept of ‘absent jurisprudence’. As such, Grey’s critical review of the ECCC’s jurisprudential lacunae serve as a compelling case study and a warning about the current circumscribed thinking about redressing reproductive violence in international criminal law. Beyond the provisions of ‘forced pregnancy’ as war crimes and crimes against humanity even under the Rome Statute, subjugating males and females to forced breeding in militia groups, might be understood as a revival of a historic form of enslavement. Professor Grey underscores and laments this critically absent interpretation in the ECCC judgments.

The conversation of this Special Issue further broadens by the wonderful contribution of Alexandra Lily Kather, international lawyer and Executive Co-Founder of the Emergent Justice Collective, that is entitled ‘The Adjudication of Slavery Crimes against the Yazidi by German Courts: Evolving Jurisprudence and the Need for Rectifying Legal Amendments in German Law’. Ms Kather reviews the enslavement cases committed against Yazidi survivors as pursued through the German courts. The majority of the cases against perpetrators of German nationality were conducted under the active personality principle or, in the alternative, under the principle of universal jurisdiction. Ms Kather examines the interpretation and application of relevant provisions of the German Code of Crimes against International Law (CCAIL) and the German Criminal Code (GCC) as they regard the slave trade and slavery conduct committed against the Yazidi by the Islamic State of Iraq and the Levant (ISIL, IS or Da’esh). Specifically, the article’s intersectional approach surfaces details in the cases of Sarah O (Higher Regional Court of Düsseldorf) and Taha Al J (Higher Regional Court of Frankfurt) while drawing comparative observations from other German cases concerning slavery crimes against the Yazidi. Importantly, the article shows how German prosecutors and judges creatively grappled with slave trading, slavery and trafficking conduct committed by ISIL. Procedurally, cases, such as Nadine K, demonstrate a positive evolution towards cumulative charging and convictions that afford comprehensive legal redress to persons affected by the slave trade, slavery and trafficking. Ms Kather’s impresses upon the reader that national jurisdictions are promising and increasingly adept at prosecuting conflict-related enslavement. Still, the absence of the slave trade as an enumerated provision of crimes against humanity and war crimes in the CCAIL can be felt. Her contemplative observations about the appropriate interface of trafficking precepts and enslavement as domesticated international crimes, yet the inability to charge slave trade, are notably areas for future clarification and enumeration in the German national penal code.

We conclude our Special Issue conversation with the forward-looking contribution of Professor Jocelyn Getgen Kestenbaum of the Benjamin Cardozo Law School whose article is entitled ‘All Roads Lead to Rome: Combating Impunity for Perpetration of Slave Trade and Slavery Crimes’. Prof Getgen Kestenbaum addresses Sierra Leone’s proposal to amend the Rome Statute of the ICC to include, inter alia, provisions for the slave trade as a crime against humanity. Sierra Leone, as a member of the Assembly of State Parties, submitted such a request to the Working Group on Amendments to the Rome Statute. In addition, Kestenbaum relates Sierra Leone’s recommendation to the Sixth Committee of the General Assembly to enumerate the slave trade as a provision in the Draft Articles on Prevention and Punishment of Crimes Against Humanity (Draft articles). The article notes that Sierra Leone’s declaration to the General Assembly follows nearly five years after the Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise in a similar fashion the Draft articles. The impetus for the slavery crime proposals to these two international criminal law treaties concerns correcting and redressing impunity gaps.

Professor Getgen Kestenbaum explains how the Rome Statute omits redress for the slave trade entirely, as a war crime under Article 8 and as a crime against humanity under Article 7. Only conflict-related sexual slavery is provided for under Article 8, while enslavement and sexual slavery are enumerated under Article 7. Each of these enslavement and sexual slavery provisions require proof of the exercise of any or all the powers attaching to the rights of ownership. Therefore, Professor Getgen Kestenbaum shows how the reduction to enslavement or to sexual slavery, as provided by safeguards of the slave trade, is absent under the Rome Statute, even though evidence of such conduct is abundant in cases before the ICC. The slave trade as war crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute only sanctions persons exercising powers attaching to rights of ownership or who also cause that person to engage in an act of a sexual nature, ie sexual slavery. Perpetrators of the slave trade under crimes against humanity or war crimes who do not exercise powers attaching to the right of ownership over a person escapes legal sanction. Furthermore, Professor Getgen Kestenbaum demonstrates how the Rome Statute’s bifurcation of enslavement and sexual slavery leads to non-factual, incomplete, and discriminatory results. She advances that sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and other slavery harms to escape legal characterisation altogether. Professor Getgen Kestenbaum concludes that Sierra Leone’s proposals concerning the Rome Statute and Crimes against Humanity Draft Convention will go a long way in closing the impunity gaps in international law for the perpetration of slavery and slave trade crimes. Such vital additions will bring the Rome Statute and Crimes against Humanity Draft Convention articles in line with customary international law regarding the slave trade, which is currently “missing in action” in international criminal law adjudication and its redress.

As editors of the Special Issue, we hope that these excellent contributions will open the conversation and signal a (r)approachment’ between the communities advocating for redress of trafficking and slavery crimes and most importantly for the survivors, victims of these crimes. Our intention is not to avoid difficult challenges that resides within these legal frameworks, especially when real-life facts and survivors overlap geographically and juridically in situations of armed conflict. We endeavour to inject an enlightened and functional coherence into an exchange that can offer a resolution based in the complementary and compatible pursuit of justice, whether it occur in international or national jurisdictions. We seek a productive united front of these communities to further eradicate these heinous crimes and human rights violations that continue to be committed against persons irrespective of, but often specifically due to, their age, race, gender, nationality, ethnicity or any status – especially when associated with armed conflict.