Prosecuting Human Trafficking for the Purpose of Sexual Exploitation under Article 7 of the Rome Statute: Enslavement or Sexual Slavery?

The crime of human trafficking for the purpose of sexual exploitation is yet to be prosecuted before the International Criminal Court (ICC). Having been described as a “modern day form” of slavery, its inclusion in Article 7 of the Rome Statute purports to serve as a reminder that in some instances, human trafficking could constitute a form of slavery. In recent times, human trafficking for the purpose of sexual exploitation has become a core element in the ideological aims of extremist groups, such as Islamic State of Iraq and Syria, and provides the financial means to sustain their criminal activities, feeding into a vicious cycle of further perpetration of conflict-related sexual violence and other crimes. However, despite this entrenched role of human trafficking within conflicts, the prospect of its prosecution before the ICC must be questioned in light of its definitional ambiguity, room for interpretation and overlap with the crimes of enslavement and sexual slavery as defined in the Rome Statute.

This article situates the crime of human trafficking for the purpose of sexual exploitation within the Rome Statute, whilst taking precaution so as not to expand the jurisdictional reach of the ICC. In doing so, it argues that while the crimes of enslavement and human trafficking significantly overlap, they do not fully coincide. While this may lead to the temptation to include human trafficking for the purpose of sexual exploitation as a distinct crime within Article 7 of the Rome Statute, it is argued that splintering the crime of enslavement even further will lead to legal uncertainty and belies the complexities of the crime of human trafficking. In this respect, the ICC should also forgo the crime of sexual slavery as a distinct crime from enslavement, leaving the latter as the umbrella provision under which both sexual and non-sexual acts of ownership are prosecuted.