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November 2, 2012

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Human Trafficking, Organized Crime

Human Trafficking and Prostitution in India

Written by Garima Tiwari

“The red light district in Bombay generates at least $400 million per annum in revenue, with 100000 prostitutes serving 365 days a year, at the average rate of 6 customers per day at $2 each.”[i]

When Robert Friedman, wrote this in 1996, he must not have though that the industry was there to survive and flourish with even more vigour, crime and torture and become the largest in Asia. For ages, the commercial sex trade has been the chief destination for trafficked girls in India.[ii]Sex tourism involving underage girls still remains a highly profitable business, a billion-a-year industry in 2009, with a 30 percent increase from previous years.

India is listed in the Tier II list of the United Nations which includes countries which have failed to combat human trafficking. India continues to be a source, destination and transit country for forced labor and sex trafficking. According to a report by the Ministry for Women and Child Development, India has nearly 2.5 million prostitutes in nearly 300,000 brothels in 1,100 red-light areas across the country. 90% or more estimated as in-country and 5 to 10% to cross-border trafficking, reported mainly from Bangladesh and Nepal. The routes of trafficking do not exclude Europe and specifically to UK and United States.[iii] Around 1.2 million children are involved in prostitution in India.

The trafficking of girls from Nepal into India for forced prostitution is perhaps one of the busiest slave sex trafficking routes anywhere in the world; with estimated 5,000-10,000 Nepali women and girls trafficked to India each year.[iv] An estimated 100,000-200,000 Nepali trafficked persons are in India. [v] In addition to being a destination, India is also a transit country for Nepalese and Bangladeshi women trafficked to Pakistan, Western Asia, and the Middle East and for women trafficked from the Russian Federation to Thailand. [vi] Asia –Pacific therefore, has seen ‘feminization of migration’-with more population movement being that of women. The feminization of migration gives rise to specific problematic forms of migration, such as the commercialized migration of women and girls as domestic workers and caregivers, often resulting in the trafficking of women for labor and sexual exploitation.[vii]

Much of the attention on human trafficking focuses on those who are trafficked across national borders every year, and, in many cases, forced to work as prostitutes or virtual slaves. But those numbers don’t include victims trafficked within India — a country so large and diverse that victims taken hundreds of miles away where a different language is spoken have little chance of finding their way home. There are increasing reports of females from northeastern states and Odisha subjected to servile marriages in states with low female-to-male child sex ratios, including Haryana and Punjab. Maoist armed groups known as the Naxalites forcibly recruited children into their ranks. Establishments of sex trafficking are moving from more traditional locations – such as brothels – to locations that are harder to find, and are also shifting from urban areas to rural areas, where there is less detection.[viii] Not to hide, the rise of HIV/AIDS patients and vulnerable groups. Anyone who has watched ‘Slumdog Millionaire’ the Oscar-winning movie would have seen tiny speck of this dark side of India.

This remains, despite the fact that India has a fairly wide framework of laws enacted by the Parliament as well as some State legislatures, apart from the Constitutional provisions.[ix]Poor implementation along with low conviction rates, and serious corruption adds to the problem. But all is not lost, efforts from social activists, educated citizenry and international support towards combating this modern slavery, has started showing some impact.

(A Birds eye view of the problem and efforts can be seen in the video created by the UNODC Regional Office for South Asia at: http://www.youtube.com/watch?v=9yJWvphsa3A)

[i] Robert I. Friedman, “India’s Shame: Sexual Slavery and Political Corruption leading to an AIDS catastrophe, The Nation, 8th April 1996

[ii] P. M. Nair, Sankar Sen, Trafficking In Women And Children In India( Orient Blackswan) 2005

[iii] India, Trafficking in Persons Report 2008. U.S. Department of State (June 4, 2008)

[iv] Koirala A, Banskota HK, Khadka BR: Cross border interception – A strategy of prevention of trafficking women from Nepal. Int Conf AIDS :15. 2004, Jul 11–16

[v] Mukherji KK, Muherjee S. (2007): Girls and women in prostitution in India Department of Women and Child Development, New Delhi, India

[vi] Joffres, C., Mills, E., Joffres, M., Khanna, T., Walia, H., & Grund, D. (2008). Sexual slavery without borders: trafficking for commercial sexual exploitation in India. International Journal for Equity in Health, 7, Pg.1–11.

[vii] The Female Face of Migration, Background Paper available at http://www.caritas.org/includes/pdf/backgroundmigration.pdf

[viii] Trafficking in Persons Report 2012, at http://www.state.gov/j/tip/rls/tiprpt/2012/index.htm

[ix] Article 23 – Article 39 of the Constitution of India The inherent provisions of these articles has been incorporated under suppression immoral Traffic in Women and Girls Act of 1956(SITA) and Traffic in persons (prevention)Act 1986(PITA)an amendment to (SITA). There are 25 provisions relevant to fight trafficking Indian Penal Code, 1860!

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November 1, 2012

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Cutting off the Roots: Trafficking in Women from the CIS

Written by Jan Guardian

Trafficking Widespread human trafficking practices is the most disturbing yet common problem for both origin countries and destination countries in the Commonwealth of Independent States (hereinafter CIS).[1] International trafficking in girls and women from the former Union of Soviet Socialist Republics (hereinafter USSR) for purposes of sexual exploitation is a highly organized multi-billion revenue earning business.[2] For many years the main suppliers were represented mostly by African, Latin American and Asian countries, particularly by Thailand and Philippines.[3] However, the supply sources changed drastically throughout the past two decades. In the early 90s victims from the collapsed USSR and the socialist camp substituted their predecessors in many national sex markets as the fall of the USSR served a dam break making millions of potential victims easily accessible for human traffickers. Currently, former Soviet states such as Ukraine and Russia are the major suppliers of women to the international sex industry.[4] Generalized data on different countries of the European Union (hereinafter EU) shows that more than one third of all the women trafficked in 1999 and 2000 represented the CIS region, whereas now these are most of the victims in Germany, Belgium and Austria.[5]

It is extremely difficult to estimate the exact number of women trafficked from the former USSR for purposes of sexual exploitation. The trade is always behind the scenes, the voices of victims are scared into silence and prosecution seems to be somewhat a rarity. It is true that the CIS countries do have reliable statistics on trafficking instances that are declared but nevertheless it is obvious that most of them aren’t. The statistics at hand might be considered as reflecting the situation partially, but one should bear in mind that the real ‘shady’ numbers might exceed the official ones several times.

The trafficking routes are promptly known for the increasing number of women from the CIS region. Estimated 0,5 million women from Central and Eastern Europe are exploited sexually in the EU member states.[6] According to German data, nearly ninety percent of the women trafficked to Germany in 1998 originated from the Eastern Europe.[7] The Ministry of Internal Affairs of Ukraine estimated that the number of women trafficked from Ukraine for the past decades amounted to 400,000, whereas NGOs claim this figure to be much higher.[8]

According to the International Organization on Migration about five hundred thousand Ukrainian and Russian women were trafficked to Western Europe during 1991-1998.[9] Some statistics show that the number of women trafficked from Kyrgyzstan to Europe and Near East annually amount to 4,000; roughly 5,000 are trafficked annually from Kazakhstan.[10] Moldova, Ukraine and Russia currently occupy the leading position in trafficking women to the Western Europe. Approximately 50 to 100 thousand Moldovan citizens, more than 100 thousand Ukrainians and 500 thousand Russians are prostituting abroad with 80% of them being victims of trafficking.[11]

This being the case, one might reasonably question these figures given the national[12] and international,[13] individual and joint legislative efforts of the CIS member states on combating human trafficking. Moreover, with these arguably effective legal frameworks in place and the number of kidnappings for trafficking for purposes of subsequent sexual exploitation tending to zero,[14] it is highly likely that the majority of women trafficked from the CIS are recruited either through fraud, deception, and other enticements that exploit real social and financial needs, or in consent with the victims.[15] Lack of economic opportunities pushes citizens of the CIS countries away to seek for any kind of jobs anywhere,[16] mostly with single, unemployed females between the ages of 16 and 30 being at risk.[17] Impoverished women seeking employment and opportunities for the future abroad are lured by advertising images of a beautiful life beyond the borders of their homelands and are somewhat forced to make the choices that turn them into victims of human trafficking. The prime cause, thus, lies mostly in the realm of how to feed oneself and is better termed a survival strategy.[18]

Therefore, investing efforts in the prevention of human trafficking by the CIS member states requires not only introducing effective legislation in counteracting it and providing potential victims with access to information about their rights and threats of illegal employment,[19] but rather it requires enhancing national socio-economic environments, for poverty and despair are the main roots of the problem in the region at stake.[20]

[1]       Irina Ivakhnyuk, Migration in the CIS Region: Common Problems and Mutual Benefits. UN/POP/MIG/SYMP/2006/10. 28 June 2006 [hereinafter Ivakhnyuk, Migration], p. 4.

[2]       See e.g.: Patrick Besler, Forced Labor and Human Trafficking: Estimating the Profits. International Labor Office, 2005, p. 14.

[3]       Martti Lehti, Trafficking in women and children in Europe. HEUNI Paper No. 18. Helsinki, 2003 [hereinafter Lehti, Trafficking], p.8.

[4]       Donna M. Hughes, The ‘Natasha’ Trade: The Transnational Shadow Market of Trafficking in Women. Journal of International Affairs 53(2), Spring 2000 [hereinafter Hughes, Trade], p. 626.

[5]       United Nations Office on Drugs and Crime, Trafficking in Persons to Europe for Sexual Exploitation. Extracts from “The Globalization of Crime – A Transnational Organized Crime Threat Assessment” Report, p. 2

[6]       Rombola, M., The Causes of the High Rate of Sex Trafficking from Central and Eastern European Nations to Western Europe. Unpublished Research Report Submitted to The University of Sydney.

[7]       Hughes, Trade, supra note 4, p. 627.

[8]       David Masci, Human Trafficking and Slavery: the Issues. The CQ Researcher 14(12), 26 March 2004, p. 277.

[9]       Stanislava Buchovska, Trafficking in Women: Breaking the Vicious Cycle. In: Making the Transition Work for Women in Europe and Central Asia, Marnia Lazreg (ed.), World Bank Discussion Paper No. 411. 2000, p. 85.

[10]     Trafficking in Persons in Central Asia: The Scope of the Problem and the Appropriate Responses. Regional Central Asia Conference “Combating Trafficking in Human Beings – Regional Response” Jointly organized by the OSCE and the Republic of Kazakhstan. Astana, Kazakhstan 18-19 May 2006.

[11]     Lehti, Trafficking, supra note 3, p. 29.

[12]     For an overview of the current national CIS member states’ legislation on the offence of trafficking in persons see: UN Office on Drugs and Crime, Global Report on Trafficking in Persons, February 2009, available at: http://www.unhcr.org/refworld/docid/49997ae45.html [accessed 1 November 2012], pp. 205-231.

[13]     CIS Council of Heads of States, Program on Co-operation of States Members of the Commonwealth of Independent States in Combating Trafficking in Human Beings for 2011-2013, 10 December 2010, available at: http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=2980 [accessed 1 November 2012].

[14]     Graeme R. Newman, The Exploitation of Trafficked Women. Problem-Oriented Guides for Police; Problem-Specific Guides Series, Guide No. 38, p. 10.

[15]     Cwikel, J., B. Chudakov, M. Paikin, K. Agmon & RH Belmaker (2004). Trafficked female sex workers awaiting deportation: comparison with brothel workers. Archives of Women’s Mental Health 7(4), pp. 243-249.

[16]     Kireyev, A. (2006) The Macroeconomics of Remittances: the Case of Tajikistan. International Monetary Fund Working Paper 06/02. Washington, D.C.

[17]     See generally: U.S. Department of State, Trafficking in Persons Report 2010. 14 June 2010, available at: http://www.state.gov/j/tip/rls/tiprpt/2010/142759.htm [accessed 1 November 2012].

[18]     Ivakhnyuk, Migration, supra note 1, p. 7.

[19]     Mukomel, V., Migration policies of Russia: the post-Soviet contexts. Moscow: Institute for Sociology of the RussianAcademy of Sciences. 2005, p. 15.

[20]     See e.g.: BelTA, Belarusian legislation in counteracting human trafficking one of CIS’ most effective. 3 June 2008, available at: http://news.belta.by/en/news/society?id=230643 [accessed 1 November 2012].

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November 1, 2012

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Calculating the Truth in Human Trafficking

Written by: Dr. T.M. Steinfatt[1]

People gain interest in social issues in various ways. My interest in numbers of trafficking victims began in 1988 during research on health communication and AIDS in Thailand. These HIV/AIDS studies resulted in the book Working at the Bar, a detailed study of the beliefs and behavior of Thai sex workers.[2] In the late 1980s an estimate began circulating in Bangkok that 800,000 children under 18 were working in the Thai sex industry. It originated in print from a single individual employed in Bangkok by the Children’s Rights Protection Center (CRPC) who stated that of 2,000,000 Thai sex workers, 800,000 were children. A Bangkok Post editorial of January 17, 1989, questioned the basis for the estimate, joined by several Thai language media outlets. “Estimate” has two distinctly different meanings in English.

Empirical estimates are based on observed data and can usually be checked for accuracy. But estimate can also mean a guesstimate, a wild guess, as in estimating that the moon is made of green cheese. Many people, including the general public and many of those who write for and edit Western and international media sources, regularly fail to distinguish between the two. The 800,000 children “estimate” was taken essentially as fact in much of the media, and repeatedly publicized to billions of people across the globe. Simple repetition of the claim, with one media outlet quoting another as the source and then being quoted itself as the source, led to belief in and presumed credibility of the claim, severely damaging Thailand’s international reputation.

As an example in 2001, large numbers of sex trafficking victims were said to exist in Cambodia. The statement, presented jointly by several Cambodian NGOs at the 2001 Second World Congress Against Commercial Sexual Exploitation Of Children in Yokohama, Japan, claimed the existence of 80,000–100,000 trafficked women and children per year in Cambodia, with “10,000–15,000 child prostitutes” in Phnom Penh alone.[3] In comparing these numbers with worldwide estimates it seemed unlikely that Cambodia could have 80,000–100,000 of the 700,000 such persons estimated to exist by the US State Department’s first Trafficking in Persons (TIP) Report.[4] This would amount to 11–14% of the estimated 700,000 of the world’s cross-border international trafficking total within about 00.194% of the total world population. The most recent TIP Report was released in June 2011.[5]

Numerous other sex trafficking reports on Cambodia cited similar figures at that time. For example, in 2001 the Child Rights Foundation of Cambodia under the heading of “Trends in Sexual Slavery” reported the number of trafficked women and children as “17,000 in Phnom Penh, 30% under 18 years old, 80,000–100,000 nationwide.”[6] Many NGO and media reports published throughout the past decade quote the 80,000–100,000 numbers. Those few providing a reference source for these numbers cite one of those mentioned above, often.[7]

Most current published estimates of the numbers of sex workers, under-aged workers, and trafficked women and children in Cambodia cannot be relied upon. In following the references for the source of the 80,000 to 100,000 figures back to the earliest dated source[8] no study or empirical data in any form can be located to support the number. As with the false claim of 800,000 child sex workers in Bangkok, the presumed propaganda value of large trafficking numbers may be at work.[9] This author is forced to conclude that these 80,000–100,000 numbers are simply bogus, that they were fabricated at some point by someone, and the bogus numbers were simply reprinted, circularly citing other such reprints as the source.

These unsupported estimates of trafficking numbers in Cambodia led to our research there beginning in the summer of 2002 and our first paper.  A Fulbright to Cambodia from January to August of 2003, an extension of that Fulbright, and a research grant from USAID led to additional research and our second empirical paper.  In early 2007, UNIAP/UNESCO in Bangkok announced a competition to determine best methods of measuring human trafficking. My methods proposal received the top award in the UNIAP/UNESCO final competition for best methods of measuring human trafficking, held in Bangkok in November 2007. Data collection for that research, supported by a United Nations grant, began in May 2008 and ended that December, with the final report published by UNIAP/UNESCO in January 2011.  Those studies provide numbers concerning sex trafficking in Cambodia only.

They do not provide numbers representing all forms of trafficking victims. Abuse of female domestic laborers and spousal abuse victims are not included in these numbers, nor are any of the persons trafficked for maritime labor, for begging, for factory labor, or for any male trafficking victims. A 32 point detailed theory and rationale for the methods used in our studies to obtain data on sexual trafficking may be found in our 2011 UNIAP Report. 

Empirical evidence of the size and location of sex trafficking can be obtained through observational research. That evidence indicates sizeable numbers of victims, but substantially smaller numbers than are commonly spread as rumors and propaganda. The numbers of sex workers and of those trafficked is several levels of magnitude smaller than much NGO propaganda usually suggests. The solution is not to promulgate and propagate fake numbers, but to learn to locate and talk with those who are oppressed, listen to what they want and will accept, and to consider carefully both the effect of often brutal interventions on those persons’ lives, and the likely consequences for the returning workers who escaped the raids in terms of future police actions against them and their workplaces.

Understanding the number of persons trafficked in areas targeted for intervention is a requirement in reducing that number by a substantial amount. If numbers of trafficked persons are not known, no accurate measure of the efficacy or of possible negative effects of specific individual anti-trafficking interventions can be known. Obtaining accurate counts of trafficking victims in specific locales and at specific points in time allows evaluation of effectiveness of any anti-trafficking measure applied there. Such numbers create the potential to judge whether trafficking is increasing or decreasing, where, and by about how much, through comparison with later counts. Such data allows tentative inferences based on empirical methods concerning the effectiveness or ineffectiveness of trafficking approaches applied or not applied in the interim. If one does not know the trafficking numbers then there is no good basis for judging effectiveness of interventions. It is not sufficient to know that a particular intervention resulted in a number of captured traffickers and a listed number of trafficked women and children removed to the care of an NGO.

The problem of human trafficking cannot be effectively addressed unless we understand its actual size and which remedies can effectively reduce it. Accurate knowledge of the size and extent of trafficking are needed in order to plan and implement a practical and effective anti-trafficking strategy. Both overestimates and underestimates of the number of victims will result in the failure to allocate resources efficiently, and they may result in the ultimate failure of many anti-trafficking interventions. Overestimates of trafficking numbers may produce prevention and intervention programs that are overly extensive an in the wrong locations, wasting funds provided for anti-trafficking efforts. If guessed numerical estimates are given credence, and the guesses are kept high for funding reasons following an intervention, then an intervention that was effective may be branded as ineffective. Some strong anti-trafficking programs may subsequently be discarded due directly to inaccurate guessed numerical estimates. The effectiveness of interventions cannot be understood accurately without grounded empirical evidence of their effect, whether positive, negative, or neutral. It is important to understand how such guessed estimates appear in the public record in order to consider the validity of such numbers if and when they appear.

[1] Professor at the School of Communication at the University of Miami (Fl). He is also a Fullbright Scholar. For a more complete reading of Professor Steinfatt’s research see “Measuring the Number of Trafficked Women in Cambodia: 2002” Globalization Research Center, University of Hawaii-Manoa (November 13-15,2002). “Measuring the Extent of Sex Trafficking in Cambodia – 2008, SIREN Trafficking Estimates, UNIAP, (January 2011). “Measuring the Number of Trafficked Women and Children in Cambodia: A Direct Observation Field Study” (October 5, 2003).  “Sex Trafficking in Cambodia: Fabricated Numbers versus Empirical Evidence” Crime Law Soc Change (October 28, 2011 online).  He can be reached at: tms@miami.edu
[2] Steinfatt, T. M. (2002). Working at the bar: sex work and health communication in Thailand. Westport: Greenwood Press.
[3] NGO Statement. (2001). NGO Statement to the 2001 Consultative Group Meeting On Cambodia. Available at: http://www.bigpond.com.kh/users/ngoforum/cg2001/child.htm
[4] U.S. Department of State. (2001). Trafficking in Persons Report 2001. Available at: http://www.state. gov/g/tip/rls/tiprpt/2001/index.htm
[5] U.S. Department of State. (2011). Trafficking in Persons Report 2011. Available at: http://www.state. gov/g/tip/rls/tiprpt/2011/index.htm
[6] CRF. (2001). CAMBODIA: after the first world congress against commercial sexual exploitation of children: contribution to the second world congress in Yokohama, Japan. Phnom Penh: Child Rights Foundation (December). P.14
[7] CRF. (2001). CAMBODIA: after the first world congress against commercial sexual exploitation of children: contribution to the second world congress in Yokohama, Japan. Phnom Penh: Child Rights Foundation (December).
[8] Sophea, M. (1998). Notes of presentation made by Mr. Mar Sophea, National Program Coordinator of IPEC for Cambodia, in, the workshop on Combating the Trafficking of Children and their Exploitation in Prostitution and other forms of Child Labor in Mekong Basin Countries, 31st January 1998, Bangkok. Phnom Penh: ILO/IPEC.

[9] Steinfatt, T. M., (2006). Trafficking, Politics, and Propaganda. Encyclopedia Entry in M. Ditmore (Ed.) Encyclopedia of Prostitution and Sex Work, vol. 2. Greenwood Press, pp. 494–498.
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October 25, 2012

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Crime of Aggression

Crime of Aggression: Who are we Kidding?

Written by Ronald Rogo, rogo.ronald@gmail.com

Although the waging of aggressive war was once described as “the supreme international crime, , differing only from other war crimes in that it contains within itself the accumulated evil of the whole”[1], the treatment of the crime of aggression by the international community barely reflects this primacy. for years there has been little disguise of the lack of enthusiasm by the international community towards this offence.

First, while the other international crimes immediately came into effect with the Rome Statute[2], the crime of aggression is currently not enforceable[3]. Initially the reason was that there was no definition of the offence[4] or explicit averment on the jurisdiction of the ICC[5]. While the Kampala Review Conference[6] was finally able to nail down a definition for the crime of aggression, it took away with the other hand. The world still has to wait until 2017 for a second review conference in order for the State Parties to finally determine whether or not they really want to keep this offence. Essentially this means that the world will have to wait until then to decide whether or not prosecuting the “supreme international crime” is worth the effort! Viewed from the prism of domestic law making this is certainly NOT the way to make law[7]. Meanwhile, state leaders can continue bombing each other to extinction without fear of any repercussions for such actions (so long, of course, as they keep away from the other international crimes).

But even after the ICC starts exercising jurisdiction over the ICC the situation does not get rosier. The amendments in the Kampala review conference provided that state parties can elect whether or not to be bound by the provisions relating to the crime of aggression[8]. This is akin to telling a kleptomaniac to choose whether or not he wants to follow laws forbidding theft! As Kevin Heller stated of course it is to be expected that the aggressor states will all elect not to be bound by these provisions on the crime of aggression[9]. The states that actually choose to be bound by them will be the ones least likely to engage in acts of aggression. So, in effect, we would end up with a statute that could be analyzed to extinction in the academic halls (and, might I add, blogs on ICL) but with little practical effect.

Perhaps the main reason why there have been so many barriers in the implementation of the crime is because, unlike the other offences, it targets state leaders. State leaders, no matter what they say, want  the liberty to bombard other states in order to pursue their “national interests”. So then the question remains: if our leaders do not want to be tied down by the rigours of the law why should the citizenry?  Lastly, since crimes against humanity and war crimes are common during wars it is unlikely that we would stamp these out unless we deal firmly with part of the underlying cause: acts of aggression. Our determination “to put an end to impunity…and contribute for the prevention of these crimes”[10] will remain a mere wish list.

[1] The International Military Tribunal

[2] These are the crimes of genocide, war crimes and crimes against humanity

[3] Whereas the Rome Statute provided for the crime of aggression, the jurisdiction of the ICC over the crime and its definition had been left out.

[4] This uncertainty was surprising especially as the United Nations Resolution No. 3314 of 1974 had earlier defined aggression to include “armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one’s own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression”. While this was not a strict legal definition, it reflected consensus on the general definition and elements of the offence.

[5] See Article 5.2 of the Rome Statute

[6] Review Conference of the Rome Statute held in Kampala, Uganda in 2010

[7]  I state this cautiously while acknowledging that international law making is different from enacting domestic laws. However, the fundamental principles are the same, more so deciding whether or not you want a particular law and its purpose.

[8] Article 15 bis provides as follows: The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.

[10] Preamble of the Rome Statute

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October 12, 2012

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Crime of Aggression, International Criminal Court, Rome Statute, UN Charter

Reaching Mutual Consensus: ICC, ICJ and the Crime of Aggression

Written by Jan Guardian

International Criminal CourtNone should underestimate the significance of the outcome of the first Review Conference on the Rome Statute of the International Criminal Court (hereinafter ICC),[1] namely, the adoption of a resolution[2] amending the Rome Statute that includes a definition of the crime of aggression[3] and the conditions under which the Court, in the future, could exercise jurisdiction with respect to the crime.[4] Whereas the definition of the crime of aggression is rather clear and was laid down a while ago by the Special Working Group on the Crime of Aggression,[5] and the preconditions for the exercise of the jurisdiction over the crime by the ICC raise minor concerns, if any at all, there are still some ambiguities in respect to the hypothetical possibility of the ICC and the International Court of Justice (hereinafter ICJ) reaching different conclusions in their decisions regarding the unlawful use of force and, thus, establishing either the presence or the absence of an act of aggression.

Given that the ICC is fully seized with the crime of aggression in any particular situation and that by the time the ICC proceeds to a verdict on a prosecution for the crime of aggression the Security Council has likely already made any conflicting decision possible,[6] the ICC judges are authorized to make their own determinations on aggression, since such, made by an organ outside the ICC “shall be without prejudice to the Court’s own findings” under the Rome Statute.[7] Hence, if the case is subject to simultaneous consideration by the ICC and the ICJ, there is ample risk that this will amount to inconsistent decisions.

The classic example of a similar decisional inconsistency between the judicial bodies of the international legal order is that of the ICJ and the International Criminal Tribunal for the former Yugoslavia in Nicaragua[8] and Tadić[9]cases, largely referred to in the legal literature as one of the inconsistencies leading to the fragmentation of international law.[10] The consequence of such an occurrence in the cases brought before the ICJ and the ICC appears to be particularly problematic given the highly-charged political atmosphere in which the ICC has been operating during the years, its fragile credibility and a lack of a proper institutional hierarchy within the international legal system.[11] Yet, the point is not to take a stand in favor of either of the two bodies, but rather to create a functional and logical system that would eliminate any discrepancies at an early stage of the proceedings in the case of aggression, which is deemed to be especially important in the light of the tensions between the states concerned.

A reasonable suggestion would, thus, be for the ICC to request the General Assembly to seek an advisory opinion from the ICJ pursuant to Article 96(a) of the United Nations Charter (hereinafter UN Charter)[12] and Article 65(1) of the ICJ Statute,[13] or to be so authorized by the General Assembly to request such an opinion proprio motu at any time pursuant to Article 96(b) of the UN Charter[14] as to enable the ICC to use the findings of the ICJ and for such a request to be a precondition for the exercise of the jurisdiction by the ICC.

It is worth mentioning, that this option was included in the Discussion Paper proposed by the Coordinator of the Preparatory Commission for the ICC[15] but was somehow dismissed later on. One of the main arguments against this option was that “because the determination of the existence of an act of aggression is a matter that affects the responsibility of a particular State that it is inappropriate as a subject of a request for an advisory opinion.”[16] However, this is quite arguable in the light of the fact that (1) the issue of an advisory opinion does not trigger state responsibility per se, and that (2) the interstate dispute at stake and subsequent determination of state responsibility will only be subject of consideration of the same judicial body that issued the advisory opinion, namely the ICJ, which is well-known for its consistency. Therefore, the request of the advisory opinion of the ICJ by the ICC in cases concerning the crime of aggression seems to be a logical choice, but the question whether, if at all, this scheme will be put into operation remains.

 

[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html [accessed 12 October 2012].

[2]       Rev. Conf. of the Rome Statute, 13th plenary meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 (advance version) (June 16, 2010)[hereinafter RC/Res. 6].

[3]       Ibid., Annex I, art. 8 bis (1).

[4]       Ibid., Annex I, art. 15 bis, 15 ter.

[5]       David Scheffer, States Parties Approve New Crimes for International Criminal Court. ASIL Insights, Vol. 14, Issue 16, June 22, 2010, p. 5.

[6]       Mark Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?. IND. INT’L & COMP. L. REV., Vol. 16, Issue 1 (2005), p. 33.

[7]       RC/Res. 6, supra note 2, Annex I, art. 15 bis (9), art. 15 ter (4).

[8]       Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986.

[9]       Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999.

[10]     Enzo Cannizzaro, Interconnecting International Jurisdictions: A Contribution from the Genocide Decision of the ICJ. European Journal of Legal Studies, Issue 1 (2007), p. 4.

[11]     International Law Commission, Report of the International Law Commission, 58th session (1 May – 9 June and 3 July – 11 August 2006), 2006, A/CN.4/L.682, para. 51.

[12]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter], art. 96(a).

[13]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 65(1).

[14]     UN Charter, supra note 12, art. 96(b).

[15]     Preparatory Commission for the International Criminal Court, Definition of the crime of aggression and conditions for the exercise of jurisdiction: Discussion paper proposed by the Coordinator, 9th session (8-19 April, 1-12 July 2002), 2002, PCNICC/2002/WGCA/RT.1, para. 4.

[16]     Crime of Aggression: Statement by the United States, September 26, 2001.