Trafficking Terror and Sexual Violence: Accountability for Human Trafficking and Sexual and Gender-Based Violence by Terrorist Groups under the Rome Statute.

• Author: Kennym, Coman

TABLE OF CONTENTS I. INTRODUCTION 45 II. HUMAN TRAFFICKING AND SGBV AGAINST TRAFFICKED PERSONS AS AN INSTRUMENT OF TERRORISM 466 A. The Interconnectedness of Human Trafficking, SGBV, and Terrorism 466 B. The Practical Intersection between Human Trafficking, SGBV, and Terrorism 47 1. Financing of Groups 47 2. Recruitment and Retention of Fighters 48 3. Ideological Basis and Justification for the Commission of Crimes 48 a. How Justifications Are Spread 49 b. Examples of Practices Supported by Ideology 50 c. The Direct or Indirect Practice of Targeting Groups for Destruction 51 4. Military Strategy 51 a. To Spread Terror 51 b. To Conduct Military Operations 53 III. PROSECUTING THESE INTERLINKED CRIMES AT THE ICC 51 A. Human Trafficking and the Rome Statute 51 B. Sexual Violence and the Rome Statute 57 1. Sexual Crimes as Crimes against Humanity 58 a. Persecution on the Grounds of Gender 58 2. Sexual Crimes as War Crimes 59 3. Sexual Crimes as Genocide 60 C. Terrorism and the Rome Statute 60 1. Terrorist Acts as War Crimes 61 2. Terrorist Acts as Crimes against Humanity 62 D. Genocide and the Rome Statute 61 IV. ISSUES FACING ACCOUNTABILITY EFFORTS FOR THESE INTERCONNECTED CRIMES 68 A. The Potential Difficulties Facing the Investigation of These Crimes 68 B. The Potential Difficulties of Bringing a Case to Trial 69 V. WHY THESE INTERCONNECTED CRIMES SHOULD BE PROSECUTED 70 A. The Crimes Come within the OTP's Strategies and Policies 70 B. The Unlikelihood of These Crimes Being Addressed in Another Forum 73 VI. CONCLUSION 73 I. INTRODUCTION

In May 2018, the Prosecutor of the International Criminal Court (ICC) informed the United Nations (UN) Security Council that her office considered Libya a "priority situation" (1) and that its investigation there had recently "focus[ed] on crimes relating to human trafficking and abuses against migrants." (2) The prosecutor noted with concern "the reports of slave auctions in Libya," (3) reporting that investigations into crimes within the ICC's jurisdiction had been conducted "on the ground" for the first time in Libya since 2012. (4) Prosecutor Bensouda concluded by stating that the Office of the Prosecutor (OTP) expected to be "in a position to apply for warrants of arrest...in the near future." (5) This followed Prosecutor Bensouda's 2017 statement to the Security Council labelling Libya as a "marketplace for the trafficking of human beings" (6) and informing the UN Security Council that her office's investigation into the situation in Libya had broadened to include such criminality. (7)

Support for these allegations can be found in the UN's Support Mission in Libya documenting crimes against trafficking victims by terrorist groups. (8) Such details touch upon a relatively new and complex phenomenon that has never been the subject of a judicial investigation or prosecution: the deliberate use of human trafficking and sexual and gender-based violence (SGBV) as a tactic of terrorism. While the connected commission of these crimes has never been a focus for international criminal law, their interlinked commission is a major concern to the international community. Evidence from conflicts around the globe reveals the growing use of human trafficking for sexual purposes to be a terror tactic increasingly adopted by nonstate actors. (9) The systemization and even the bureaucratization of the nefarious intersection between human trafficking, SGBV, and terrorism can be seen in the exploitation of modern communication tools and technologies to disseminate ideologies which dehumanize and sell women and children online. (10) Added to this is the mechanization of doctors and medicine to prevent pregnancies and speed up physical maturation of young girls for the purposes of sexual abuse. (11)

Prosecutor Bensouda's 2018 report to the Security Council suggested that the investigation into crimes related to human trafficking in Libya was aimed at understanding which of the existing "judicial actors is in the best position to investigate or prosecute alleged crimes." (12) This Article argues for the need to address the commission of the interlinked crimes of human trafficking, SGBV, and terrorism at the international level. The Article is split into four main Parts: (i) how these crimes are linked in practice; (ii) how the crimes could be addressed under the Rome Statute; (iii) the difficulties in constructing a prosecution of these crimes; and, ultimately, (iv) why the ICC should seek to exercise jurisdiction to confront their commission.

2. HUMAN TRAFFICKING AND SGBV AGAINST TRAFFICKED PERSONS AS AN INSTRUMENT OF TERRORISM

   1. The Interconnectedness of Human Trafficking, SGBV, and Terrorism

      The UN has noted that within the rise in prominence of violent extremist groups in recent years, the systematic use of sexual violence against women and children has become a tactic of terrorism. (13) Concurrently, the UN acknowledges that in armed conflict and post-conflict situations, the vulnerability of displaced persons to human trafficking for the purposes of exploitation, including sexual violence, increases. (14) In practice, human trafficking, SGBV, and terrorism have become so interwoven and the boundaries between them so blurred that these crimes are each effectively both the means and the result of certain groups' criminal policies. Islamic State (IS), Boko Haram, and al-Shabaab are the nonstate actors best known for committing these interlinked crimes as part of their operations. (15) However, a large number of other groups, including the Taliban, Hezbollah, Maoist rebel groups in Nepal, guerrilla groups in Colombia, and militias in Congo, Ivory Coast, and Sri Lanka are thought to have employed similar tactics. (16) Terrorist organizations use human trafficking, SGBV, and terrorism in distinct but related ways. The core underlying motivations and purported justifications for the connected commission of these crimes may be characterized as: financing, (17) recruitment, (18) ideology, (19) and military strategy, (20) each of which will be addressed in turn.

   2. The Practical Intersection between Human Trafficking, SGBV, and Terrorism

      1. Financing of Groups

         The UN Special Representative on Sexual Violence in Armed Conflict has stated that the trafficking of women and children is "critical" to the financial flows of terrorist groups. (21) Reports show that Boko Haram abducts women and girls to generate revenue through sale and ransom payments, (22) while IS has reportedly followed a practice of gifting women and children to fighters in lieu of payment. (23) The value of trafficking women and children and their commodification is seen in measures taken to ensure that their value is protected. For example, IS has reportedly forced victims to take birth control so that they do not get pregnant and can continue to be resold. (24)

      2. Recruitment and Retention of Fighters

         Groups such as IS have used propaganda on sexual slavery, usually facilitated by human trafficking, to act as an incentive for recruiting both local youths and foreign fighters. (25) This includes the promise of "wives" and access to sex slaves. (26) Recruits are usually economically marginalized men seeking status, power, and access to sex that is unavailable in the socially conservative religious societies from which they often come. (27) Women's bodies are strategically used not only to lure fighters but also to retain fighters. IS pays fighters for each additional sex slave they acquire, as well as for children born within the "caliphate"--creating a financial incentive for fighters and encouraging slavery and sexual violence against detainees. (28) Issue 4 of IS's official magazine, Dabiq, (29) detailed how Yazidi women and children were to be divided among fighters, (30) with a percentage to be given to IS authorities as khums (a tax on war spoils). (31) Additionally, the UN Special Representative on Sexual Violence in Conflict has emphasized that the gifting of women and girls to fighters "should not be underestimated as a way to maintain the motivation and 'espirit de corps' of fighting units." (32)

      3. Ideological Basis and Justification for the Commission of Crimes

         Terrorist groups espouse various ideological bases for trafficking and sexually abusing women and children. These justifications are frequently rooted in the perceived "otherness" of the targeted victims, with different strategies employed by terror groups depending on the religious or ideological identity of the targeted community. (33) For example, IS mostly targets Yazidi women and girls for sexual violence, the Turkmen Shia community less so, while there are few reports of sexual violence against the Christian community under IS control. (34) IS has classified the Yazidis as "infidels," referring to them as a "pagan minority" whose "women could be enslaved...as spoils of war." (35) After IS invaded the Sinjar region of Iraq in 2014, Yazidi women and girls were forcibly transferred numerous times to sites in Iraq and Syria, having been evaluated on age, beauty, and virginity. (36) These Yazidis were "bought, sold, gifted, or even bequeathed and transferred by deceased ISIL fighters as part of their will or estate," demonstrating how the women and girls are considered as property. (37) Similar to IS's religiously motivated treatment of the Yazidis, Boko Haram primarily targets Christians, with Human Rights Watch documenting incidents where Muslims and Christians were separated during raids, with the Muslims usually released and the Christians abducted. (38)

         1. How Justifications Are Spread

            Propaganda is key to disseminating and reinforcing the ideology that supports the connected commission of human trafficking, SGBV, and terrorism. This is exemplified by IS, which created two "departments" dedicated to "war spoils." The first focused on the sale of slaves, the second was committed to the issuance of religious edicts to justify the use of slavery. (39) In...