Prosecuting Trafficking Crimes for Sexual Exploitation in Times of Conflict: Challenges and Perspective

This article explores the nexus between conflict-related sexual violence and trafficking for sexual exploitation in times of conflict from a prosecutorial perspective. More specifically, it analyses whether those responsible for conflict-related sexual violence can be prosecuted under domestic and international provisions for human trafficking for sexual exploitation in times of conflict. While this practice is broadly condemned, a lot must still be done to combat the culture of impunity. Focusing on the 13 countries identified by the Secretary-General as currently affected by conflicts, the first part of the article analyses the existent domestic legal framework on human trafficking and gender-related violence. This perusal reveals that national legislation is generally inadequate to comprehensively address these issues. With few exceptions, the domestic frameworks fail to comply with international recognised standards and enforcement challenges in time of conflict complicate further the application and implementation of these provisions for an effective prosecution.

Concluding that no prospect of successful convictions exists under national law, the second part of this paper discusses the possibility of international prosecution. Even if the International Criminal Court (ICC) might have jurisdiction on the alleged crimes, this paper highlights that the crime of trafficking is not explicitly criminalised in the Rome Statute as such and its qualification as ‘sexual slavery’ or ‘enslavement’ is ambiguous. Nevertheless, the ICC could expand the definition of these two crimes to include the crime of trafficking for the purpose of sexual exploitation. However, the ICC has not yet prosecuted anybody for trafficking despite the existence of evidence on this crime in some of the states under investigation.

In light of this analysis, this article concludes that there are little prospects of successful prosecution for those responsible for human trafficking because both the domestic and international framework have significant limitations, both internal and external and not sufficient deterrent force. Therefore, it suggests that the international community should keep pushing these 13 countries to improve their domestic legislation up to recognised international standards and the ICC to address the interpretative challenges posed by the crime of trafficking.