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 45