PART 1 Rwanda and the former Yugoslavia.55 The ad hoc tribunals have made significant doctrinal advances in relation to the international legal prohibitions that are potentially involved in or associated with trafficking. They have, for example, prosecuted individuals for sexual violence, and several defendants have been convicted of the crime against humanity of rape,56 defined for the first time in 1998 by the International Criminal Tribunal for Rwanda.57 Sexual violence has been recognized as an act of genocide as well as a form of torture, enslavement, persecution and inhumane acts and as the actus reus for these and other crimes.58 As detailed in the discussion on slavery, above, the International Criminal Tribunal for the former Yugoslavia has also identified sexual and related violence as constituting the crime against humanity of enslavement. The judgement of the trial chamber, later confirmed on appeal, Statute of the International Criminal Tribunal for Rwanda, article 3 (g) (when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds); Statute of the International Criminal Tribunal for the former Yugoslavia, article 5 (g) (when committed in armed conflict and directed against any civilian population). 55 For a comprehensive overview of these cases, see James R. McHenry III, “The prosecution of rape under international law: Justice that is long overdue”, Vanderbilt Journal of Transnational Law, vol. 35, No. 4 (October 2002), p. 1269. For background information on several of the major indictments, see Kelly Dawn Askin, “Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunals: Current status”, American Journal of International Law, vol. 93, No. 1 (January 1999), p. 97. For a more recent and detailed analysis, see Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and ICTR (2005). 56 “[A] physical invasion of a sexual nature, committed on a person under circumstances which are coercive”: Prosecutor v. Akayesu (Trial Chamber I) Case No. ICTR-964-T, 2 September 1998 (Judgement) (para. 598). 57 See, for example, Prosecutor v. Akayesu (acts of sexual violence can form the actus reus for the crime of genocide). 58 44 explicitly recognized a distinct evolution in the international legal prohibition on slavery. The Tribunal identified a number of factors to be taken into account in properly identifying whether enslavement was committed, many of which are typical of contemporary trafficking fact patterns.59 The International Criminal Court, established in 2002, has jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression (which has yet to be defined). The jurisdiction of the International Criminal Court is complementary to that of national courts, and as such is limited to situations where national systems fail to investigate or prosecute, or where they are “unable or unwilling” to do so genuinely.60 The Rome Statute provides for individual criminal responsibility for persons who commit, attempt to commit, order, solicit, induce, aid, abet, assist or intentionally contribute to the commission of a crime within the jurisdiction of the International Criminal Court. This covers all persons without distinction, including on the basis of official capacity such as head For example, “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”: Kunarac Trial Chamber, para. 543. 59 Rome Statute, articles 5 (1) and 17. “Inability” is determined by considering “whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings” (art. 17 (3)). In determining “unwillingness”, the Court will consider whether one or more of the following exist as applicable: “(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility…; (b) There has been an unjustified delay in the proceedings … inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially” (art. 17 (2)). 60 RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING