of State, member of Government or elected
representative. Importantly, the Statute also
provides for the responsibility of military
commanders and other superior authorities
for crimes committed by subordinates
under their control (arts. 25, 27 and 28).
In addition, article 25 (3)(d) of the Rome
Statute criminalizes a new form of criminal
participation: contributing to the commission
by a group of a crime or an attempted crime
creates individual criminal responsibility.
The Rome Statute provides that war crimes
committed in situations of international
armed conflict include: “[c]ommitting rape,
sexual slavery, enforced prostitution, forced
pregnancy … enforced sterilization, or any
other form of sexual violence also constituting
a grave breach of the Geneva Conventions”.
War crimes in situations of non-international
armed conflict include: “[c]ommitting rape,
sexual slavery, enforced prostitution, forced
pregnancy … enforced sterilization, and any
other form of sexual violence also constituting
a serious violation of article 3 common to the
four Geneva Conventions”.61
The Rome Statute further provides that the
constituent acts of “crimes against humanity”
(which must, by jurisdictional necessity, be
committed as part of a widespread or systematic
attack directed against a civilian population,
with knowledge of the attack)62 include:
“[r]ape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable
gravity”. Enslavement is also listed as a
constituent act of crimes against humanity. As
discussed previously and considered further
below, the Statute provides that “enslavement”
means “the exercise of any or all of the powers
attaching to the right of ownership over a person
and includes the exercise of such power in the
course of trafficking in persons, in particular
women and children”.63 Additional acts
identified as war crimes and/or crimes against
humanity that are of potential relevance to a
situation of trafficking include deportation or
forcible transfer (arts. 7 (1)(d) and 8 (2)(a)(vii)),
“committing outrages upon personal dignity, in
particular humiliating and degrading treatment”
(art. 8 (2)), and “other inhumane acts of a similar
character intentionally causing great suffering,
or serious injury to body or to mental or physical
health”. The Rome Statute also criminalizes
persecution, including gender-based persecution,
if committed in connection with any inhumane
act enumerated in the Statute or any crime within
the jurisdiction of the Court.64
The above overview has confirmed that a
number of the practices associated with
trafficking, including various forms of sexual
violence such as enforced prostitution, can,
subject to certain specific conditions, be
identified as both war crimes and crimes
against humanity, attracting individual criminal
responsibility. Other questions, such as whether
(and, if so, under what circumstances) trafficking
as trafficking can be characterized as a crime
against humanity, are not yet settled.65
Articles 7 (1)(g) and 7 (2)(c). Note that “trafficking in
persons” is not defined in the Rome Statute.
63
61
Articles 8 (2)(b)(xxii) and 8 (2)(e)(vi). Note that the
elements of crime for the war crimes of enslavement,
sexual slavery and enforced prostitution are identical to
those set out for the equivalent crimes against humanity.
See generally the discussion within this section.
64
Article 7 (1). Note that there is no requirement of a
nexus to armed conflict.
65
62
Articles 7 (1)(k) (crime against humanity) and 7 (1)(h).
Article 7 (2)(g) of the Rome Statute defines persecution
as “the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity
of the group or collectivity”.
For a consideration of this issue, see Gallagher,
International Law of Human Trafficking, chap. 3.
COMMENTARY
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