In December 2024, the International Criminal Court’s Office of the Prosecutor (‘OTP’ or ‘Prosecutor’) adopted a Slavery Crimes Policy (‘Policy’). The Policy communicates the Prosecutor’s commitment to prioritizing investigations concerning contemporary slavery. It envisions a role for the Prosecutor in curbing slavery crimes through the pursuit of criminal accountability for the crimes within the Court’s jurisdiction, and as a ‘hub’ facilitating international and domestic investigations of slavery crimes (para 143).
The Policy gives much to look forward to. The Prosecutor envisages that the International Criminal Court (‘ICC’) might expand international jurisprudence on slavery crimes. In a noteworthy step forward, the Policy explicitly appreciates, in accordance with disability rights scholars’ arguments, that persons with disabilities are specially affected by slavery crimes in the Court’s jurisdiction (paras 49, 94). The Policy also considers the persisting influence of historical slavery on the colonial, racial, gendered, ageist and ableist patterns of contemporary exploitation and enslavement (section III and p. 37), showcasing the depth of expertise and commitment to correcting structural wrongs that the OTP benefits from.
However, tensions remain in regards to the Court’s jurisdiction over and the OTP’s role in investigating and prosecuting slavery crimes – a field in which other regimes of international law simultaneously apply, and in which many other actors are also engaged. Two recent examples of the OTP’s practice in situations involving human trafficking illustrate the questions that emerge from its practice and which the Policy does not resolve. As the OTP seeks a larger place in the field of contemporary slavery and aspires to develop a survivor-centred international law on contemporary slavery, its work will overlap with efforts to a similar effect in ‘transnational criminal law’ and international human rights law, raising dilemmas around the legal and political principles guiding its involvement.
Conviction, law, and the case of Ongwen
The Slavery Crimes Policy recognizes that the ICC’s jurisdiction covers a limited part of all slavery crimes defined by international law. Under its Statute, the ICC has jurisdiction over enslavement and sexual slavery as crimes against humanity and sexual slavery as a war crime (Articles 7(1)(c) and (g), and 8(2)(b)(xxii)). The crimes in the ICC’s jurisdiction are often committed alongside slavery crimes that remain exclusively in the criminal jurisdictions of states, including slavery, the slave trade, servitude, forced labour, and human trafficking. The Policy makes apparent the OTP’s desire to serve a central role within this broader category of crimes.
The Policy acknowledges the limited extent to which the Court’s jurisdiction covers slavery crimes, but does not fully address the legal conundrums that arise from the factual and legal intersection of the ICC crimes with other slavery crimes. Human trafficking is one crime whose destiny in the Policy remains unclear. It is among the most widely criminalized conducts linked to contemporary slavery. The near-universally adopted UN Trafficking Protocol establishes a shared definition of the crime and an extensive framework for transnational law enforcement cooperation. This indirect regime of international criminal law – often called ‘transnational criminal law’ – is complemented by a developing body of international human rights law, which now confirms states’ positive obligations to criminalize and prosecute human trafficking as a form of slavery and to cooperate in investigating and prosecuting cross-border cases of trafficking. It is, therefore, surprising that the Policy, while recognizing that slavery crimes are addressed at many levels through the legal frameworks for human trafficking (para. 27), excludes human trafficking from its definition of contemporary slavery.
The Policy, further, insists on a distinction between ‘the transnational crime of human trafficking’ and ‘international’ slavery crimes – a category in which it includes crimes such as the slave trade that, like human trafficking, are not crimes under the ICC Statute but are defined in international treaties. The OTP previously relied on this distinction to argue against the application of a non-punishment principle emerging from domestic, transnational and international legal regimes for prosecuting human trafficking in its case against Dominic Ongwen. The UN Special Rapporteur on Human Trafficking had argued in her amicus observations that the emerging principle of non-punishment of victims of trafficking ought to be considered in the case on grounds that the defendant had himself been trafficked prior to committing the crimes for which the Trial Chamber had found him guilty. The Prosecutor’s response emphasized, foremost, that the slavery crimes committed by Ongwen were of ‘a nature and magnitude wholly different from the crimes ordinarily associated with trafficking’ (Prosecutor’s response, para 5), thereby distinguishing international crimes from the transnational crime of trafficking based on a difference in nature inherent to the categories. This argument can be contested: many states’ domestic criminal codes categorize human trafficking as an ‘international crime’ and/or as a crime to which universal jurisdiction attaches, the Security Council, international human rights courts (see, in particular, judgments in Rantsev v. Cyprus and Russia and Workers of the Hacienda Brasil Verde v Brazil), and some scholars consider human trafficking’s nature and magnitude comparable to those of the crimes within the Court’s jurisdiction. Moreover, the Prosecutor’s distinction between ‘international crimes’ and ‘transnational crimes’ does not reflect positive law: neither the Rome Statute, international crime suppression treaties, nor international human rights law rely on such a hierarchy amongst slavery crimes.
To dismiss some internationally defined crimes as different in nature from other international crimes is to bypass unresolved questions concerning the applicability and systemic coherence across overlapping legal frameworks for slavery crimes. According to the ICC’s Statute, the Court’s jurisdiction is limited to four crimes; in cases it tries, it shall apply its Statute and, after the Statute, ‘[i]n the second place, where appropriate, applicable treaties and the principles and rules of international law’ (ICC Statute, Art. 21(1)(b)). It must, further, apply these sources consistently with international human rights law (ICC Statute, Art. 21(3)). Legally, the stronger argument against applying the non-punishment principle in Ongwen was, therefore, that that the principle is emerging rather than established law (see Prosecutor’s response, para 6). But this reasoning may not always hold. As the Prosecutor aims to increasingly partake in pursuing criminal accountability for slavery crimes outside the ICC’s jurisdiction, it will need to find a consistent basis for determining whether, when and how criminal law principles developed or developing in ‘transnational criminal law’ and human rights law apply (see Special Rapporteur’s observations in para 10; cf. 2021 Report to the Human Rights Council). Especially now that the OTP seeks a leading role for itself in developing survivor-centred justice for slavery crimes, it must take care not to undermine developments emerging from the law and practice of others who also, and often more routinely, work to that end.
Convenience and political compromise in the Libya investigation
Whereas the Slavery Crimes Policy and the OTP’s arguments in Ongwen insist that human trafficking falls outside the remit of ‘international crimes’ and of ‘slavery crimes’, the Prosecutor has, in another context, found it practicable to rely on the transnational legal framework concerning trafficking to pursue criminal accountability for slavery crimes. In the Libya situation, the Prosecutor now participates in a Joint Investigation Team (‘JIT’) with Italy, the Netherlands, the United Kingdom, Spain and the European Union Agency for Law Enforcement Cooperation. Their joint investigation has led to domestic prosecutions of human trafficking. In contrast to the Policy’s dismissal of human trafficking as a non-international crime, the Prosecutor credits these trafficking prosecutions as important steps in bringing an end to international crimes in Libya and against migrants fleeing the country.
Pursuing joint investigations of human trafficking benefits the OTP by allowing it access to advanced transnational criminal cooperation mechanisms, in particular, when not all of the crimes within the Court’s jurisdiction benefit from equal, or equally widely adopted, cooperative frameworks (for example, see the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity). The Prosecutor’s plan to enlarge its role in the prosecution of contemporary slavery offers the possibility of engaging these frameworks, but will require the Prosecutor to make more political decisions about its partnerships. In the Policy, the OTP communicates its commitment to an admirable and ambitious politics:
[T]he Office will investigate slavery crimes using anti-colonial, anti-racist, anti-ableist and anti-ageist approaches that do not replicate prejudice. The skilful investigation and litigation of slavery crimes entails the application of non-biased approaches to serve survivors’ interests in attaining justice. (para 96)
This Policy is already under pressure in Libya. The slavery crimes committed against migrants in or travelling out of Libya implicate Libyan officials and organized criminal groups, European state officials, as well as individuals who arrange transport for migrants otherwise trapped in Libya and unable to cross closed-off European borders. The Prosecutor’s reliance on the special forms of criminal cooperation available in the European Union thus involves the choice to align its work with European states despite evidence of their officials’ complicity in the crimes, including through the adoption of colonial and racist migration policies that rely heavily on criminalization (as Itamar Mann, Violeta Moreno-Lax and Omer Schatz have previously discussed on this blog). The convenience of uniting with European officials in slavery crimes prosecutions, thus, risks strengthening racist and colonial exercises of punitive power rather than correcting them.
What principled prosecutorial power requires
In the case against Ongwen, the Prosecutor argued that Ongwen’s criminal accountability as a ‘high ranking, high functioning’ person, regardless of his own potential victimization to the same crimes as a child, gave effect to the aims of anti-trafficking laws to prevent and combat human trafficking, and to protect and assist its victims (Prosecutor’s response, para. 5). This argument concedes that accountability for some crimes may not always be consistent with the interests of the survivors of other crimes, and therefore involves choices about who to prosecute, when, and according to which rules. The Ongwen case and the Libya investigation exemplify the resulting challenge of navigating multiple, overlapping regimes for different slavery crimes while consistently respecting the rights and interests of the individuals affected.
As the only permanent international criminal court, the ICC is uniquely positioned to work toward systemic coherence across bodies of law and many jurisdictions. The Prosecutor plays an important role in the process through its discretionary powers in regards to case selection and investigative cooperation. The Prosecutor will likely continue to encounter the legal and political challenges that arise from investigations involving charges of human trafficking and other treaty-based crimes. The OTP’s Slavery Crimes Policy, Policy on Complementarity and Cooperation and anticipated policies on environmental crimes and cybercrime, foreground the Prosecutor’s interest in collaborative investigations that may include crimes outside the ICC’s jurisdiction. Given that research shows that so-called transnational (slavery) crimes can facilitate and be facilitated by the crimes in the ICC’s jurisdiction, it is unsurprising that responses to these crimes might converge. Under such circumstances, a genuine commitment to ‘anti-colonial, anti-racist, anti-ableist and anti-ageist approaches that do not replicate prejudice’ requires the Prosecutor to exercise more care in its selection of prosecutions and partnerships; the Prosecutor ought to leverage its power in service of a cross-regime international jurisprudence committed to denouncing abuse and exploitation in all their forms.
