All Roads Lead to Rome: Combating Impunity for Perpetration of Slave Trade and Slavery Crimes

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Jocelyn Getgen Kestenbaum - Professor of Law, Benjamin N. Cardozo School of Law

Abstract

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise in a similar fashion the Draft articles.
The Rome Statute creates a wide impunity gap by omitting the slave trade entirely as a war crime and crime against humanity and by including only those conflict-related slavery acts that include causing someone to engage in an act of a sexual nature. Specifically, the Rome Statute does not enumerate the slave trade or slavery under Article 8 as war crimes. It does not define the slave trade within the crime of enslavement under Article 7(g) as a crime against humanity or explicitly enumerate the slave trade within the context of a widespread or systematic attack against a civilian population. War crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute sanctions only persons exercising powers attaching to the rights of ownership who also cause that person to engage in an act of a sexual nature. Crimes against humanity conduct also escapes legal sanction when perpetrators transport or otherwise engage in any slave trade acts without exercising powers attaching to the right of ownership over a person.
Furthermore, the Rome Statute’s bifurcation of enslavement and sexual slavery lead to non-factual, incomplete, and discriminatory results. Sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and others’ slavery harms to escape legal characterization altogether.
Sierra Leone’s proposals to amend the Rome Statute and CAH Draft articles to enumerate, inter alia, the slave trade as a crime against humanity will go a long way in closing the impunity gaps in international law for slavery and slave trade crimes’ perpetration. Such amendments will bring the Rome Statute and CAH Draft articles in line with customary international law regarding the slave trade, which is currently ‘missing in action’ in international criminal law adjudication and redress.

Introduction

On April 11, 2023, the Permanent Mission of the Republic of Sierra Leone to the United Nations stated its intention to submit revisions to the Rome Statute of the International Criminal Court (ICC) to include inter alia provisions for the slave trade as a crime against humanity and recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH Draft articles).
Permanent Mission of the Republic of Sierra Leone to the United Nations, ‘Statement by HE Dr Michael Imran Kanu, Ambassador and Deputy Permanent Representative,’ UNGA Res Sess, Sixth Comm, Agenda Item 78: ‘‘Crimes Against Humanity’’ Second Cluster: Definition and General Obligations (Arts 2, 3 and 4), 77th Sess, 11 April 2023, para 10 <https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3A077620f9-8e27-353d-a28e-7a16dc6152f8> accessed 11 July 2023.
 Pointing specifically to conduct criminalized as the other inhumane acts of ‘forced marriage’ and the euphemism of ‘bush wives’, Sierra Leone’s representative condemned the impunity for conduct that included the repeated redistributions of victims to fighters also as acts of the slave trade.
ibid. This statement seems to reflect the multiple potential crimes for which specific conduct of forced marriage could provide evidence, including, but not limited to, the slave trade. I would offer that the conduct could provide evidence to the separately enumerated crimes of enslavement and sexual slavery. For a detailed analysis in this regard, see J Getgen Kestenbaum, ‘Aesthetics of Slavery and Slave Trade Crimes’ (forthcoming 2023) 37 Temple International & Comparative Law Journal.
 The proposed revision to the Rome Statute, along with changes to the war crimes provisions, would fill critical accountability gaps in international criminal law as neither the crime against humanity of enslavement provision of Article 7
The crime of enslavement is defined as slavery and, while it includes some acts that would constitute the actus reus of the slave trade, the definition requires that the perpetrator exercise the powers attaching to the right of ownership over a person. The international law definition of the slave trade does not require that the perpetrator exercise powers attaching to the right of ownership; rather, the slave trader must only intend to bring a person into – or maintain a person in—a situation of slavery.
 nor the war crimes provisions of Article 8 includes the crime of the slave trade. Similarly, Article 8 does not include the war crimes provisions of slavery. Such additions will counter impunity for many acts of the slave trade – one of the oldest yet least prosecuted prohibitions and crimes in international law – that continue to occur in the context of attacks against civilian populations globally.
This welcome declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic sent commentaries to the United Nations International Law Commission (ILC) to revise the CAH Draft articles language.
Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, Cardozo Law Institute in Holocaust and Human Rights, Submission Commentaries to the International Law Commission on the Crimes Against Humanity Treaty Draft (November 30, 2018) <https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:d6dc10d9-14ad-305a-abf4-365c221cffe6> accessed 11 July 2023.
 Specifically, the Clinic, on behalf of gender crimes, slavery crimes, and international law expert Patricia Viseur Sellers, recommended revisions to the draft provisions addressing enslavement, sexual slavery, slavery, the slave trade, and conduct characterized as human trafficking.
ibid.
 Proposed changes reflected customary international law and decades of progress in international human rights and international criminal law.
The submission sought to correct course from recent problematic shifts in international treaty law that resulted in discriminatory application of the Rome Statute and in recognition of criminal conduct escaping legal characterization regarding slavery crimes.
ibid.
 At the same time, the commentaries reminded the ILC that human trafficking was a transnational crime with distinct historical origins, definitional elements and status from slavery and the slave trade. Specifically, the commentaries emphasized that human trafficking was not a crime under international criminal law; rather the transnational criminal conduct of human trafficking could provide evidence of international crimes, including slavery and the slave trade. The ILC, however, did not adopt any of the suggested changes in the commentaries, opting to adhere closely to the current language of the Rome Statute.
With one exception: successful advocacy led to the International Law Commission’s dropping of the gender definition in the Draft Articles on Prevention and Punishment of Crimes Against Humanity draft. L Davis & D Bradley, ‘Victory for Women and LGBTIQ Rights under International Criminal Law: Gender in the Draft Crimes Against Humanity Treaty’, in I Rosenthal, V Oosterveld and S SáCouto (eds), Gender and International Criminal Law (Oxford University Press 2022).
With Sierra Leone’s proposed amendments to the Rome Statute, the opportunity for revisions to the CAH Draft articles are more probable and would foster a harmonization of the enumeration of crimes against humanity’s constituent crimes in international law, and in customary and treaty law. Regarding the slave trade and other slavery crimes, including slavery, enslavement, and sexual slavery, these changes also could be viewed as a form of reparations for the omission of the slave trade in past mechanisms as well as for accountability for slave trades, such as ISIS slave trade of Yazidis, abuses within Lebanon’s kafala system or Libya’s migrant detention centers, perpetrated today. Punishment for the crime of the slave trade has been all but erased from international criminal law statutes and ignored in practice. Indeed, contemporary international criminal law instruments have overlooked its explicit enumeration, and practitioners have turned toward human trafficking as the penal framework to combat slavery crimes and related criminal conduct in the fight against ‘modern slavery’. And, while combating human trafficking is critical, it is separate and distinct from slavery and the slave trade. Thus, Sierra Leone’s proposed changes will steer international law back on course toward including and rendering visible the slave trade as a separate constituent crime against humanity in international law. All possible roads to accountability for acts of slave trade, slavery and human trafficking will be paved for more comprehensive and full expressive justice and redress for individuals who have been slave traded, enslaved, and trafficked.
This article explains the historical and legal mischaracterizations of slavery crimes that have necessitated proposed amendments from Sierra Leone to the Rome Statute and CAH Draft articles. The intent is to set forth the legal reasoning behind these recommended Rome Statute revisions to the Assembly of States Parties to the ICC and related proposed CAH Draft articles amendments. Part I provides an overview of the customary law prohibitions and crimes of slavery and the slave trade in international law. Part II then examines through a critical, intersectional feminist lens the legal lacunae existing in the Rome Statute (and, by extension, the current CAH Draft articles) that result in discriminatory application of the law and perpetrator impunity for international criminal conduct. Such frames assist in surfacing and rendering visible the perpetration of victim-survivor harms that occur against those most marginalized by structural oppression and violence toward more accurate accounting of the harms and more comprehensive responses for accountability and redress. Part III traces the various recommendations for revisions that aim to close the structural gaps in both treaties. The article concludes by advocating for all roads to be paved to Rome and beyond to ensure greater perpetrator accountability and survivor/victim redress for slavery and the slave trade in international law.

Slavery and the Slave Trade under International Law

Slavery
‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ League of Nations, ‘Slavery Convention,’ 60 LNTS 254, 25 September 1926, Art 1(1).
 and the slave trade
Slave trade is defined as ‘all acts involved in the capture, acquisition or disposal of a person with intent to reduce [a person] to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging [a person]; all acts of disposal by sale or exchange of [an enslaved person] acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in [enslaved persons].’ ibid Art 1(2).
 are peremptory, jus cogens norms with concomitant erga omnes obligations of states.
See Restatement (Third) of Foreign Relations of the United States (1987) § 702 cmts d-i, § 102 cmt k; see also EJ Criddle and E Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale Journal of International Law 331, 331; MC Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59(4) Law and Contemporary Problems 63, 70-71. Jus cogens norms are certain fundamental, overriding principles of international law not open to appeal or challenge from which no derogation is ever permitted. Erga omnes obligations are obligations of all states triggered by norms, such as jus cogens norms, to cease violations and redress victims.
 Slavery and the slave trade are prohibitions under international humanitarian law,
Article 43 of the Lieber Code further prohibited re-enslaving persons, stating, ‘if a person held in bondage by that belligerent be captured (…) by (…) the United States such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person … made free by the law of war is under the shield of the law of nations.’ Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, Art 43. Lieber’s recognition of the slave trade’s illegality was rooted in the 19th century legal philosophy of ubi socieatas ibi jus, whereby ‘civilized nations have come to constitute (…) a commonwealth of nations, under the restraint and protection of the law of nations.’ Lieber markedly views the law of nations as governing prohibitions of international humanitarian law, noting that the ‘(l)aw of nations has its sway in peace and in war.’ F Lieber, Fragments of Political Science on Nationalism and Inter-Nationalism (1868) 22, 23 <https://www.loc.gov/rr/frd/Military_Law/Lieber_Collection/pdf/Fragments-of-Political-Science.pdf> accessed 11 July 2023. But see The Antelope, 23 US (10 Wheat.) 66, 114 (1825), a United States Supreme Court decision finding, one quarter century earlier, that the slave trade was legal under the law of nations. The judgment, however, did not concern the laws of war. ibid. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=AA0C5BCBAB5C4A85C12563CD002D6D09> accessed 11 July 2023 (hereafter ‘AP II’) Art 4. The Commentary to Article 4(2)(f) of the Additional Protocols emphasizes that the prohibition of slavery and the slave trade are ‘universally accepted’. The phrase ‘in all their forms’ in relation to slavery and the slave trade should be understood within the meaning of the 1926 Slavery Convention and the 1956 Supplemental Slavery Convention. International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Commentary of 1987, para 4541 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=5CBB47A6753A2B77C12563CD0043A10B> accessed11 July 2023.
 non-derogable human rights violations,
Universal Declaration of Human Rights, A/RES/217(III), 10 December 1948, Art 4 [hereinafter UDHR]; International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966, Art 8 [hereinafter ICCPR].
 and international crimes under customary international law.
Many of the 19th century anti-slave trade treaties recognized the imposition of penal sanction for slave trading, such as the Congress of Vienna Act, The Treaty of London, The General Act of Berlin, The Act of Brussels, The 1890 Treaty Between Great Britain and Spain for the Suppression of the African Slave Trade, and the Treaty of Saint-Germain-en-Laye. See, eg, Bassiouni (n 10) 447-448, 456. Compare C Kreß, ‘International Criminal Law’, Max Planck Encyclopedia of Public International Law (Mar 2009) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1423?prd=EPIL> accessed 22 September 2023. Nonetheless, the stricto sensu conditions for international crimes are met for the slave trade: (1) provisions provide for international individual criminal liability; (2) the norm against the slave trade has jus cogens status and, thus, proscription exists in all forms, under any circumstances, and bars immunities; and (3) the slave trade prohibition could be enforced directly under international criminal jurisdiction, or indirectly by a national court through international ius puniendi, exercised under universal jurisdiction. ibid.
 The international crime of the slave trade penalizes the intent to bring a person into, maintain a person in, or dispose of a person in a situation of slavery,
The definition also covers the ‘disposal’ of an enslaved person as an act of the slave trade.
 while the international crime of slavery criminalizes the exercise of powers attaching to the right of ownership over a person.
1926 Slavery Convention (n 8).
The steady abolishment of the international slave trade during the 19th and early 20th centuries led to the international proscription of both slavery and the slave trade in the 1926 Convention for the Suppression of Slavery and the Slave Trade (1926 Slavery Convention).
ibid. Although slave-raiding and large-scale dealing had all but ended in the African colonies by World War I, labor exploitation (forced labor) was extremely prominent and necessary for the colonial economy. See, eg, V Stoyanova, Human Trafficking and Slavery Reconsidered (Cambridge University Press 2017) 192-93; S Miers and R Roberts, ‘Introduction’ in S Miers and R Roberts (eds), The End of Slavery in Africa (Madison and London: University of Wisconsin Press 1988).
 The 1926 Slavery Convention enumerates the core definitional elements of slavery while broadly governing all acts that slave owners and slave traders perpetrated and all harms that men, women, children and adults experienced,
See P Viseur Sellers and J Getgen Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ in I Rosenthal, V Oosterveld and S SáCouto (eds), Gender and International Criminal Law (Oxford University Press 2022).
 including anticipating any future enslavement and slave trading conduct.
But see Members of the Research Network on the Legal Parameters of Slavery, ‘The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery’ (2012) (delineating the legal parameters of slavery given the conclusion that there is a ‘lack of clarity’ of definitions in international law).
Specifically, the 1926 Slavery Convention calls on states ‘to prevent and suppress the slave trade’ and ‘to bring about . . . the complete abolition of slavery in all its forms’.
1926 Slavery Convention (n 8) Art 2.
 The Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’
ibid Art 1(1).
 and the slave trade as:
. . . all acts involved in the capture, acquisition or disposal of a person with intent to reduce [the person] to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging [the person]; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves.
ibid Art 1(2). The 1956 Supplementary Convention broadens this definition by including ‘all acts of disposal by sale or exchange of a person acquired with a view to being sold or exchanged’ as well as ‘by [any] means of conveyance.’ 1956 Supplementary Slavery Convention (n 9) Art 7; J Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Brill 2013) 10, 95.
The 1926 Slavery Convention and the 1956 Supplementary Slavery Convention, a treaty that augmented the 1926 Slavery Convention to intensify national and international efforts toward the abolition of slavery, the slave trade and institutions and practices similar to slavery, recognize the distinct, yet interconnected conduct of the slave trade and slavery. Slavery defines who is a person enslaved and who is a perpetrator of slavery. The slave trade defines how one is reduced to slavery, transported as an enslaved individual, maintained in slavery, or disposed of after enslavement,
H van der Wilt, ‘Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the Concepts’ (2014) 13(2) Chinese Journal of International Law 297, 303.
 while also delimiting who perpetrates slave trade acts. The drafters understood that these crimes occur in tandem,
The drafters’ references to slavery, enslavement, or sexualized enslavement presupposes that these crimes could encompass control over the victims’ sexual autonomy or sexual integrity. More recent provisions for sexual slavery, such as in the Rome Statute, codified protections already granted under the 1926 Slavery Convention definition of slavery. See P Viseur Sellers and J Getgen Kestenbaum, ‘“Sexualized Slavery” and Customary International Law’ in S Weill, KT Seelinger and KB Carlson (eds), The President on Trial: Prosecuting Hissène Habré (Oxford University Press 2020).
 produce interlinked institutions,
PM Muhammad, ‘The Trans-Atlantic Slave Trade: A Forgotten Crime Against Humanity as Defined by International Law’ (2003) 19(4) American University International Law Review 884, 933-46.
 yet are distinguishable crimes, often committed by several perpetrators and, thus, pursued separately. The 1926 Slavery Convention drafters’ key concept was to condemn the exercise of powers attaching to the right of ownership, regardless of the nature of the acts (or non-acts) that masters forced enslaved persons to perform (or not to perform). The 1926 Slavery Convention’s travaux préparatoires,
See J Allain, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Brill 2008) 52.
 including the reports of the treaty drafting body, the Temporary Slavery Commission, contemplate acts of a sexual nature and control of sexuality in all forms of slavery.
Prosecutor v Dominic Ongwen (Amici Curiae Observations on Sexual- and Gender-Based Crimes, Particularly Sexual Slavery, and on Cumulative Convictions Pursuant to Rule 103 of the Rules of Procedure and Evidence) ICC-02/04-01/15-1934 (23 December 2021) para 3; League of Nations, ‘Slavery Convention: Report presented to the Assembly by the Sixth Committee’, A.104.1926.VI, 24 Sept 1926; League of Nations, ‘Report of the Temporary Slavery Commission’, Geneva, 25 July 1925, 100 (‘[T]he duty of the Commission (…) [is] to make suggestions with a view to [slavery’s] entire suppression in all its forms.’) (emphasis added); League of Nations, ‘Slavery Convention: Minutes of the Second Session Held at Geneva from July 13th to 25th, 1925’, 1 Sept 1925, 62 (discussing systems of slavery, such as concubinage, that include acts of a sexual nature as slavery, not sexual slavery). In the travaux préparatoires, slavery ‘in all its forms’ means slavery under law, or de jure (ie chattel) slavery, as well as sanctioned by social customs, or de facto (ie domestic) slavery. It also has been used to denote slavery institutions, systems and practices (ie concubinage), but does not refer to indicia or evidence of exercise of powers of ownership (ie control over sexuality, acts of a sexual nature, or ‘sexual slavery’) as these factors manifest in slavery in many if not all its forms, even in systems associated with forced labor or chattel slavery. See Sellers and Kestenbaum, ‘“Sexualized Slavery” and Customary International Law’ (n 23) 366-367.
 Thus, the slavery definition in the 1926 Slavery Convention encompasses the exercise of powers of ownership based upon control over enslaved persons and their entire beings, including control over their sexuality. The Commission intended to outlaw any demonstration of powers attaching to the right of ownership over a person. Therefore, it crafted the definition to comprise any current exercise of powers of ownership that comply with this definition of slavery as well as future acts of slavery, including sexualized violence in the course of enslavement, by any name.
Human trafficking, while at times factually overlapping with slavery and the slave trade, is a completely separate prohibition and transnational crime with different legal origins. The definition of Human trafficking is based in exploitation rather than ownership. The definition of slave trade requires neither exploitation nor ownership; rather, it requires the intent to bring a person into, maintain a person in, or dispose of a person in a situation of slavery. Thus, the operative definition of exercise of powers attaching to the rights of ownership governs to determine whether slavery exists.

The Rome Statute’s Structural Impunity Gaps for Slave Trade and Slavery Crimes

Slave Trade and Slavery Exclusions

Article 8 War Crimes

The Rome Statute omits the crimes of slavery and the slave trade from the war crimes provisions. Sexual slavery, which requires proving slavery plus the additional element of causing a person to engage in ‘one or more acts of a sexual nature’, is the only slavery crime enumerated under Article 8 as a war crime in both international and non-international armed conflicts.
‘Rome Statute of the International Criminal Court’, 2187 UNTS 38544, 17 July 1998, Art 8 [hereinafter ‘Rome Statute’].
 As ICC Office of the Prosecutor’s Special Adviser on Slavery Crimes Patricia Viseur Sellers and I have previously argued, the Rome Statute’s mischaracterization of slavery crimes and erasure of the slave trade is mystifying and likely results from a combination of drafting oversights, misunderstandings of the nature of slavery and the slave trade, a discriminatory bifurcation of slavery crimes, and the racialization of slavery and slave trade crimes under international law.
P Viseur Sellers and J Getgen Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (2020) 18(2) Journal of International Criminal Justice 517, 532; see also P Viseur Sellers and J Getgen Kestenbaum, forthcoming, manuscript on file with author.
Most notably, neither the prohibition of the slave trade nor slavery is enumerated under Article 8, the exclusive war crimes provisions that prevents further supplementation or expansion by inferring provisions of customary international law.
‘Rome Statute’ (n 28), Art 8. Omission from the war crimes provisions does have possible effects on practice at the international level.
 Consequently, ICC cases, such as Ongwen, former child soldier and former commander of the Sinia brigade of the Lord’s Resistance Army (LRA) in Uganda, Ntaganda, former military chief of staff of the National Congress for the Defense of the People (CNDP), an armed militia group in the Democratic Republic of the Congo (DRC), and Katanga, a former leader of the Patriotic Resistance Force in Ituri (FRPI) in the Democratic Republic of the Congo (DRC), could not adjudicate conduct that constituted slave trading or slavery as war crimes, only as sexual slavery as a war crime.
Some of the conduct, including forced conscription of children, could be characterized as war crimes, but were not also characterized as acts of slavery and/or the slave trade as such. See J Getgen Kestenbaum, ‘Aesthetics of Slavery and Slave Trade Crimes’ (2023) 37 Temple International & Comparative Law Journal.
Acts of slavery and the slave trade often are committed against victims repeatedly and sequentially. The status of being enslaved can endure for years in both international and non-international armed conflicts. The ICC’s Ongwen, Ntaganda, and Katanga judgments have produced evidence of slavery and conduct analogous to slave trading, especially concerning children and child soldiers affected by armed conflict.
See Sellers and Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ (n 17) 179-180 (exploring the issue specifically with respect to sexual slavery).
 Beyond conscripting or enlisting children or using them to participate actively in hostilities, this conduct can also amount to the war crimes of slavery and/or slave trading under customary international law. Currently, that conduct cannot be prosecuted explicitly as such under the Rome Statute,
ibid 182-183.
 denying full expressive justice to victims/survivors and leaving impunity gaps for perpetrators of these crimes.
The informal texts of the Chair of the Preparatory Committee Adriaan Bos (Netherlands) included slavery and bracketed the slave trade – as well as ‘slave-related practices’ and forced labor – in all their forms under war crimes as serious violations of the laws and customs of war.
ICC, ‘Annex: Definition of Core Crimes: Chairman’s Informal Texts and Compilation of Proposals and Suggestions with Regard to the Definition of Core Crimes – Addendum’, A/AC-249/CRP-9/ADD-4, 4 April 1996 <https://www.legal-tools.org/doc/4b4bc0> accessed 22 September 2023; see also J Allain, Slavery in International Law: Of Human Exploitation and Trafficking (n 21) 273; see United Nations Conference of the Plenipotentiaries on the Establishment of an International Criminal Court, ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’, UN Doc. A/CONF.183/2, 14 April 1998 <https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v3_e.pdf> accessed 22 September 2023. (citing draft Option II for section D that would have inserted ‘slavery and the slave trade in all their forms’ as a war crime in non-international armed conflict). Also mentioned in Women’s Caucus for Gender Justice in the International Criminal Court, ‘Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal court, United Nations Headquarters, December 1-12, 1997’ <Microsoft Word – 5PrepComRecommWomensC.doc (4genderjustice.org)>.
 The Women’s Caucus for Gender Justice (Women’s Caucus), a transnational network of women’s organizations and feminist human rights activists who advocated for the inclusion of a feminist agenda at the Rome Statute negotiations, recommended the inclusion of the slave trade as understood by treaty and customary law. The Women’s Caucus, nonetheless, misunderstood the definition and elements of the slave trade as a separate crime from slavery under international law because the recommendation urges drafters to include the slave trade, but the language does not reflect the elements of the crime.
This misunderstanding becomes apparent when reading the recommendations under the crimes against humanity provision of enslavement. The recommendation was to include all acts of slave trading and trafficking, but the suggested language suppresses the actus reus of the slave trade and elevates the actus reus of slavery, ie, the exercise of any or all of the powers attaching to the right of ownership over a person. Women’s Caucus for Gender Justice, ‘Women’s Caucus Advocacy in ICC Negotiations: Recommendations & Commentary for Elements Annex Part I Submitted to the November 29 – December 17, 1999 Preparatory Commission for the International Criminal Court’ <http://www.iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/111999pc/elannex1.html>. The slave trade does not require proof of exercise of any or all powers attaching to the rights of ownership over a person. See 1926 & 1956 Slavery Convention definitions. 1926 Slavery Convention (n 8); 1956 Supplementary Slavery Convention (n 9).
 Subsequent preparatory works reveal no commentary or debate about the slave trade. Bartels has suggested that the omission of slavery and the slave trade as war crimes, like that of the crime of starvation before the 2019 Rome Statute amendment on starvation as a war crime was passed, was ‘non-deliberate and non-logical.’
The Women’s Caucus for Gender Justice’s Recommendation 3 stated ‘war crimes should encompass (…) Protocols I and II and the progressive developments in the laws and customs of war.’ ‘Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal court’ (n 32) Part III: War Crimes. Recommendation 8 stated, that, ‘enslavement and slavery-like practices as a violation in all war, internal and international.’ ibid; see R Bartels, ‘Time to Fix the Rome Statute and Add the Crime of Starvation in Non-international Armed Conflicts!’ EJIL: Talk! (3 Dec 2019) <https://www.ejiltalk.org/time-to-fix-the-rome-statute-and-add-the-crime-of-starvation-in-non-international-armed-conflicts/> accessed 5 October 2023; see also W Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edition, Oxford University Press, 2016); O Triffterer and K Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edition, CH Beck, Hart, Nomos, 2016); RS Lee (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International, 1999); V Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25(3) Michigan Journal of International Law 605.
 This assessment seems correct, especially because the Rome Statute war crimes provisions for international and non-international armed conflict include ‘sexual slavery’ as separately enumerated crimes.
Rome Statute (n 28) Art 8. As will be explained infra, sexual slavery under the Rome Statute requires proving slavery plus causing a person to engage in an act or acts of a sexual nature.

Article 7 Crimes Against Humanity

The slave trade is missing as a separate enumerated crime against humanity in the Rome Statute. The ICC crimes against humanity provision Article 7(2)(c) includes enslavement and defines it as slavery: ‘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’.
ibid Art 7(2)(c).
 While the Women’s Caucus proposals intended that enslavement reflect aspects of trafficking and the slave trade,
ibid Art 7(2)(g); see Women’s Caucus for Gender Justice, ‘Women’s Caucus Advocacy in ICC Negotiations: Recommendations and Commentary for the Elements of Crimes (Based on the Rolling Text PCNICC/L.5/Rev.1/Add.2) Submitted to the Preparatory Commission for the International Criminal Court’ (13-31 March 2000), < http://www.iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/032000pc/elementsannex.html> accessed 22 September 2023. The Women’s Caucus opposed the inclusion of monetary references in the definition or elements of enslavement under the Rome Statute. Recommendations & Commentary to the Elements Annex and Rules of Procedure and Evidence Submitted to the Preparatory Commission for the International Criminal Court’ (12-30 June 2000) < http://www.iccwomen.org/wigjdraft1/Archives/oldWCGJ/icc/iccpc/062000pc/elementsannex.html>. See also ‘Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal court’ (n 32) Part III: War Crimes, Recommendation 8.
 the current Article 7 definition of enslavement conflates and confuses slavery and slave trade with one another and with human trafficking without substantively adding to the definition of slavery.
1926 Slavery Convention (n 8) Art 1(1); Rome Statute (n 28) Art 7(g). The Women’s Caucus relied upon the 1926 Slavery Convention but did not recognize that the separate crime of the slave trade under international law did not require the exercise of the powers attaching to the right of ownership and, thus, enslavement could not encompass both slavery and the slave trade under international law. ‘Women’s Caucus Advocacy in ICC Negotiations: Recommendations and Commentary for the Elements of Crimes (Based on the Rolling Text PCNICC/L.5/Rev.1/Add.2)’ (n 37).
 Consequently, the Rome Statute leaves an impunity gap for perpetrators who engage in the slave trade without also committing the crime of slavery, a lacuna that seems to have been an unintentional drafting oversight.
Specifically, the elements of the crime of enslavement excludes the core of the slave trade prohibition – the mens rea or intent to reduce a person to, maintain a person in, or dispose of a person in a situation of slavery. Instead, the enslavement elements include conduct that normally could constitute acts of the slave trade, such as purchasing, selling, lending, or bartering, as indicia of slavery,
Rome Statute (n 28) Art 7(g); ICC, ‘Elements of Crimes’ (2011) <https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf> Art 7(1)(g)-2 (‘The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’).
 rather than the actus reus of the separate crime of the slave trade. Furthermore, enslavement elements tether the actus reus of the slave trade to the required element of ‘exercise of any and all powers attaching to the right of ownership over a person’. Exercise of ownership, however, is not a required element to prove under the crime of the slave trade. Thus, the conduct constituting the slave trade, ie the intent to bring a person into slavery by inter alia transferring, gifting, purchasing, or selling a person or the intent to maintain a person in a situation of slavery that does not also include the conduct constituting slavery, escapes legal characterization and is outside the jurisdiction of the International Criminal Court.
Sellers and Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (n 27) 517.
Often, ICC judgments include descriptions of slave trade conduct, but the ICC does not characterize the acts as the slave trade, nor are these acts able to be charged as criminal conduct.
ibid 541-542.
 Of course, the structural exclusion of the slave trade as a separately enumerated crime contributes greatly to the slave trade’s omissions in ICC judgments as unenumerated customary international law crimes are excluded under the Statute.
See Rome Statute (n 28) Art 5 (ICC jurisdiction includes crime of genocide, crimes against humanity, war crimes, and the crime of aggression).
 Precursory conduct, such as abductions, captures, kidnappings, giftings, transfers, or exchanges, entail how victims are reduced to – and maintained in – situations of slavery or enslavement.
Sellers and Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (n 27) 520.
 Such conduct could encompass the actus reus of the slave trade if the perpetrator intends to bring or maintain an individual in a situation of enslavement.
ibid 531.
 In Ongwen, for instance, the ICC recounted evidence of ‘abduction’ and ‘distribution’ of victims that the Court found to have been enslaved and/or sexually enslaved.
See, eg, Prosecutor v Dominic Ongwen (Public Redacted Version of ‘Trial Judgment’) ICC-02/04-01/15 (24 February 2020) paras 205–06, 214, 400, 1157, 1161, 1186, 3086.
In the Ntaganda case, the charges included sexual slavery as both a war crime and crime against humanity, but not enslavement
Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) ICC-01/04-02/06-309 (9 June 2014).
 as a crime against humanity, even when factual evidence suggested that victims were enslaved and slave traded more broadly.
Prosecutor v Ntaganda, Case No. ICC-01/04-02/06-2359, Judgment, para 579, n. 1786 (July 8, 2019) (highlighting the testimony from P-0790 that victims were enslaved and used to transport and provide belongings to soldiers). As Patricia Sellers and I have argued previously, sexual slavery is enslavement, as sexualized violence is evidence of exercise of powers attaching to rights of ownership over a person. Sellers and Kestenbaum, at 374-79. Here, the evidence could have proved exercise of powers of ownership, but enslavement was not charged. Evidence also indicates the slave trade, but the crime currently cannot be charged under the Rome Statute. Notably, the Ongwen Court has found that cumulative convictions for sexual slavery and enslavement as crimes against humanity cannot stand as the elements of enslavement are encompassed by the elements of sexual slavery. Sexual slavery is a more specific offence than enslavement, in that it requires proof that the ‘[t]he perpetrator caused [the] person or persons to engage in one or more acts of a sexual nature’. Enslavement, however, is the crime that captures all of the unlawful conduct and, therefore, should be the crime that stands. See Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26).
 P-0790 testified that victims were ‘captured,’ ‘forced to carry items,’ and raped during their captivity.
Ntaganda, ‘Trial Judgment’ (n 47) para 579, n 1786.
 The Court, however, did not find that certain victims were sexually enslaved as a war crime or as a crime against humanity because the evidence did not prove that the soldiers who raped them also exercised any rights of ownership over them.
ibid paras 957 (P-0018) and 958 (P-0019).
 According to the evidence, separate soldiers engaged in the conduct, which the Court found to be indicative of exercise of ownership – in this case holding the victims captive and forcing them to carry items.
ibid.
 The Court also found that being captured and forced to carry items was unlawful, but that the conduct was not charged.
ibid para 957.
 Thus, P-0018’s and P-0019’s entire experience of enslavement, including harms of slavery and the slave trade, was left unredressed.
In Katanga, conduct that included transporting victims (so-called ‘wives’) to camps where they intended ‘to treat the victims as if they owned them and obtain sexual favours from them’ was never characterized as criminal.
Prosecutor v Germain Katanga (Trial Judgment) ICC-01/04-01/07-3436-tENG (7 March 2014) para 1001.
 However, even when slavery does not manifest (ie, there is no exercise of powers of ownership),
J Allain and R Hickey, ‘Property and the Definition of Slavery’ (2012) 61(4) The International and Comparative Law Review Quarterly 915, 916.
 the slave trade can still be perpetrated as a separate, distinct crime if the perpetrator intends to bring someone into – or maintain someone in – a situation of slavery. Here, the Rome Statute’s omission has rendered invisible the crime of the slave trade as its conduct continues to manifest in armed conflict and as part of widespread or systematic attacks against civilians today.
Several other factors, including the omission from statutes of modern international judicial mechanisms, may contribute to the slave trade crime’s underutilization. Also, the denomination of human trafficking and sexual slavery as ‘modern slavery’ has lessened slavery’s and the slave trade’s visibility. Sellers and Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (n 27) 517.
The most flagrant omission of slavery as criminal conduct (even where it could be legally characterized as a crime against humanity) is the lack of legal characterization of enslaved children born to enslaved persons. In Ongwen, for example, the ICC recounts that Dominic Ongwen’s enslaved victim-survivors were repeatedly raped during their enslavement and birthed thirteen children, ‘fathered by Ongwen.’ Neither the Court nor the charging documents of the prosecution consider these children to be victim-survivors of enslavement or slavery.
See Ongwen, ‘Trial Judgment’ (n 45) paras 207, 2068-2069, 3057; see also Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26) (recounting charges against Dominic Ongwen including rape as a crime against humanity and war crime).
 Children born into enslavement are enslaved children, unless freed.
J Getgen Kestenbaum, ‘Prohibiting Slavery & the Slave Trade’ (2022) 63(1) Virginia Journal of International Law 51, 55. Also omitted from the Rome Statute, slavery cannot be charged as a war crime. Only sexual slavery is enumerated under the war crimes provision.
 Under the Rome Statute, their experience of slavery has not yet been acknowledged as a crime against humanity and currently cannot be redressed when perpetrated as a war crime.

Sexual Slavery and Trafficking in Persons Inclusions

Sexual Slavery is Slavery or Enslavement

In addition to glaring omissions of slavery as war crimes and the slave trade as war crimes and a crime against humanity, the Rome Statute includes separately enumerated crimes of sexual slavery as a crime against humanity
Rome Statute (n 28) Art 7(1)(g)-2.
 and as war crimes in both international and non-international armed conflicts.
ibid Art 8 (2)(b)(xxii) (sexual slavery during an international armed conflict (IAC)); ibid Art 8(2)(e)(vi) (sexual slavery during a non-international armed conflict (NIAC)).
 The ICC guiding Elements of Crimes document provides identical elements for all sexual slavery provisions, requiring that ‘[t]he perpetrator caused [the] person or persons [over whom the right of ownership was exercised] to engage in one or more acts of a sexual nature’.
ICC, ‘Elements of Crimes’ (n 39) Arts 7(1)(g)-2, 8(2)(b)(xxii)-2, 8(2)(e)(vi)-2.
 This additional element of causing an enslaved person to engage in one or more acts of a sexual nature distinguishes ‘sexual slavery’ from ‘enslavement’ under the Rome Statute. It requires an additional evidentiary burden of proof.
See, eg, V Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (n 34). The ICC Elements of Crimes distinguish ‘sexual slavery’ from ‘enslavement’ by requiring additional proof that the perpetrator caused the victim to engage in an act of a sexual nature. Compare ICC, ‘Elements of Crimes’ (n 39) Article 7(1)(c)-2 of the Rome Statute with Articles 7(1)(g)-2, 8(2)(b)(xxii)-2 and 8(2)(e)(vi)-2 of the Rome Statute.
 The separate enumeration of sexual slavery reflects a misunderstanding of slavery/enslavement and is discriminatory
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26).
 (even if well intended)
According to the Women’s Caucus records and Professor Valerie Oosterveld, the separate enumeration of sexual slavery was part of a visibilization of sexual violence perpetrated against women and girls (ie, so-called ‘comfort women’ of WWII) and a way to characterize criminal conduct that was different in kind from enforced prostitution, which was seen as an end result of human trafficking. See V Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (n 34) 616.
 as it continues a bifurcation of slavery crimes in contemporary international criminal law.
See Sellers and Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ (n 17) 157-59.
As applied in Katanga, Chui, Ntaganda, and Ongwen, for example, the ICC found that the determinative factor as to whether sexual slavery occurred is the exercise of powers of ownership over a person’s sexual autonomy.
Ongwen, ‘Trial Judgment’ (n 45); Ntaganda, ‘Trial Judgment’ (n 47); Prosecutor v Mathieu Ngudjolo Chui (Trial Judgment) ICC-01/04-02/12-3-tENG (18 December 2012); Katanga, ‘Trial Judgment’ (n 51).
 While ICC jurisprudence acknowledges that ‘there is no exhaustive list of situations or circumstances’
The Trial Chamber in Ntaganda held that, ‘(i)n determining whether the perpetrator exercised such a power, the Chamber must contemplate various factors, such control of sexuality’. However, Ntaganda’s examination of causation of acts of a sexual nature only referenced physical acts of rape. Ntaganda, ‘Trial Judgment’ (n 47) paras 952, 955. See also rapes as the ‘caused acts’ in Katanga, ‘Judgment pursuant to article 74 of the Statute’ (n 51) paras 1008, 1011-1013, 1018, 1022.
 that delimit when or how such powers are exercised,
See, eg, López Soto y Otros v Venezuela (Judgment) (26 September 2018) <https://www.corteidh.or.cr/docs/casos/articulos/seriec_362_ing.pdf>; Ntaganda, ‘Trial Judgment’ (n 47).
 the additional element of causing a person to engage in an act of a sexual nature, to date, has been limited to heteronormative male-on-female acts of rape, such as in the Ntaganda
See Ntaganda, ‘Trial Judgment’ (n 47) para 975; see also Prosecutor v Charles Ghankay Taylor (Trial Judgment) SCSL-03-01-T (18 May 2012) paras 422, 426-427; Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Trial Judgment) SCSL-04-15-T ‘RUF Case’ (2 March 2009) paras 1293-1294; Katanga ‘Trial Judgment’ (n 51) paras 985, 990, 1000, 1012; Chui, ‘Trial Judgment’ (n 65) paras 101, 107.
 and Ongwen
Ongwen, ‘Trial Judgment’ (n 45) para 3047.
 cases.
In contrast, the crime against humanity of enslavement under Article 7(1)(c) does not include the additional burden – the need to prove that the perpetrator caused a ‘person or persons to engage in one or more acts of a sexual nature’; rather, enslavement encompasses all conduct that constitutes ‘exercise of powers attaching to the right of ownership’ conduct. Sexualized violence and control that evinces enslavement manifests in myriad ways that are much broader than ‘acts of a sexual nature’ and include inter alia: the exercise of powers of ownership over reproductive fluids, such as semen; commodification and control of breastmilk; verification of menstrual flows; gynecological experimentation; castration; forced separation of slave spouses to prevent procreation; inflicting individual and collective psychological sexual terror; grooming of prepubescent children to become concubines or other objects of sexual pleasure; and absolute sexual access by slave owners to slave bodies, including allowing anyone – frequently family members, friends, and employees – to sexually abuse enslaved persons.
See Sellers and Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ (n 17) 180; see also, eg, M H Machado, ‘Between Two Beneditos: Enslaved Wet-Nurses Amid Slavery’s Decline in Southeast Brazil’ 38(2) (2017) Slavery & Abolition 320; D E Roberts, Killing the Black Body: Race, Reproduction, and The Meaning of Liberty (Random House/Pantheon, 1997) 27-28; T A Foster, ‘The Sexual Abuse of Black Men Under American Slavery’, 20 (2011) Journal of the History of Sexuality 451-458.
In Kunarac et al, the International Criminal Tribunal for the former Yugoslavia (ICTY) clarified that, while control of sexuality is a factor indicating enslavement’s occurrence, it does not constitute per se an element of enslavement under international law.
Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (Trial Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001) paras 540, 542-543 (affirmed on appeal in Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (Appeal Judgment) IT-96-23 & IT-96-23/1-A (12 June 2002) paras 119, 124). See also Duch (Trial Judgment) 001/18-07-2007/ECCC/TC (26 July 2010) paras 342-346 (exercise of sexual control is part of established international crime of enslavement) (affirmed on appeal in Duch (Appeal Judgment) 001/18-07-2007-ECCC/SC (3 February 2012) paras 119-167).
 While ‘acts of a sexual nature’ are inherent in – or at times the very reason for – enslavement, misconceptions of slavery have decoupled forced labor from the sexualized violence and control that all enslaved persons experience.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Sellers and Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ (n 17) 49-55.
 Thus, decoupling sexual slavery from enslavement misconstrues the nature of slavery; indeed, sexual violence and control of sexuality are extremely effective ways for perpetrators to exercise powers attaching to the right of ownership over a person in all slavery practices.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Sellers and Kestenbaum, ‘‘Sexualized Slavery’ and Customary International Law’ (n 23) 374-379.
Despite Katanga and Ntaganda Courts’ sound reasoning that the determinative factor to prove sexual slavery is the exercise of ownership powers over a person’s sexual autonomy
See Ntaganda, ‘Trial Judgment’ (n 47) paras 960, 1204; Katanga ‘Trial Judgment’ (n 51) paras 975, 981, 1013.
 and that ‘there is no exhaustive list of situations or circumstances’ delimiting how ownership powers are exercised,
Ntaganda, ‘Trial Judgment’ (n 47) para 952.
 both cases limited ‘acts of a sexual nature’ to acts of rape.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); see Ntaganda, ‘Trial Judgment’ (n 47) paras 955, 975 (affirmed on appeal in Prosecutor v Bosco Ntaganda (Public Redacted Version of ‘Appeal Judgment’) ICC-01/04-02/06-2666-Red (30 March 2021) paras 856, 1027, 1144). See also rapes as the ‘caused acts’ in Katanga, ‘Trial Judgment’ (n 51) paras 1008, 1011-1013, 1018, 1022; and in Chui, ‘Trial Judgment’ (n 63) paras 76, 101, 107 (charges dismissed on other grounds).
 The restrictive approach taken to sexual slavery in these ICC cases failed to consider victims’ experiences of sexual acts other than heteronormative male-on-female rapes because other acts do not resemble rape. These cases also failed to address the consequent multiple physical and psychological harms created by the sexualized acts, including loss of control of sexuality, attacks on sexual integrity and denial of sexual and reproductive autonomy.
Further, dividing acts into sexual slavery and enslavement engenders a discriminatory application of sexual slavery by presuming and requiring that the victims are female and perpetrators are male. See Katanga, ‘Trial Judgment’ (n 51) paras 973-978; see also Sellers and Kestenbaum, ‘‘Sexualized Slavery’ and Customary International Law’ (n 23); A Adams, ‘Sexual Slavery: Do We Need This Crime in Addition to Enslavement?’ (2018) 29(2) Criminal Law Forum 279, 282.
 Under Article 7 of the ICC’s Rome Statute, these indicia constitute exercise of ownership powers for both enslavement and sexual slavery crimes.
The Ongwen case’s evidentiary and subsequent legal analysis of acts of a sexual nature and control of sexuality in the context of enslavement overlooked the sexualized ownership exercised over victims, and specifically child-victims,
Not recognizing control of sexuality as indicia of exercise of ownership powers over girl-child ting tings occurring without an additional act of sexual nature constitutes gender and age discrimination in the application and interpretation of the law in violation of Article 21(3) of the Rome Statute. Rome Statute (n 28) Art 21(3).
 which occurred regardless of whether victims were caused to engage in any act of a sexual nature. This analysis led to inaccurate and incomplete legal interpretations of enslavement, excluding myriad additional acts, even acts of a sexual nature, constituting evidence of enslavement. For instance, the conduct legally characterized as forced marriage as an ‘other inhumane act’, torture, rape and forced pregnancy committed against abducted and subjugated individuals are acts of a sexual nature that are indicia of the exercise of powers of the right of ownership of enslavement.
Ongwen, ‘Trial Judgment’ (n 45) paras 3021-3043, 3056-3062.
Thus far, the ICC has used ‘sexual slavery’ to legally characterize heteronormative male-on-female rapes in the context of enslavement,
See Ntaganda, ‘Trial Judgment’ (n 47) paras 955, 975 (affirmed on appeal in Ntaganda, ‘Appeal Judgment’ (n 74 paras 856, 1027, 1144); see also Katanga, ‘Trial Judgment’ (n 51) paras 990, 1000, 1008, 1011-1013, 1018, 1022 (rapes as the ‘caused acts’); Chui, ‘Trial Judgment’ (n 63) paras 76, 101, 107 (charges dismissed on other grounds); Duch, ‘Trial Judgment’ (n 69) para 362; Taylor, ‘Trial Judgment’ (n 66) paras 422, 426-427; Sesay, ‘Trial Judgment’ (n 66) paras 1293-1294.
 rendering invisible multiple other sexual violence acts and exercise of control over sexuality that also are evidence of enslavement. In addition to missing various harms victims experience, the consequent effect is discrimination against categories of victims based on, among other statuses, gender and age.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Ntaganda, ‘Trial Judgment’ (n 47) paras 955-957, 959-961, 977-980; Katanga, ‘Trial Judgment’ (n 51) paras 1000-1019 (recounting evidence of ‘acts’ as repeated rapes); Prosecutor v. Charles Ghankay Taylor (Appeal Judgment) SCSL-03-01-A (26 September 2013) paras 264-277, 289, 297 (artificially separating the use of females as sexual (conjugal) and domestic slaves for ‘housework’).
 Sexual slavery’s separate enumeration was an attempt to seek redress for sexualized violence that occurred during captivity; Rome Statute drafters likely never intended the present exclusion of entire categories of enslavement victims or certain conduct in a discriminatory manner.
V Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (n 34).
The Rome Statute’s separate enumeration of sexual slavery, which carves out some acts from the broader category of enslavement, and enslavement as crimes against humanity leads to erroneous interpretations of slavery crimes
Ongwen, ‘Trial Judgment’ (n 45) para 3051.
 when allegations include certain acts of a sexual nature.
ibid, paras 2715-2716 (analysis of the applicable law), 3051 (legal findings that sexual slavery is a specific form of enslavement).
 The extraction of sexual slavery from enslavement in the Rome Statute, in addition to making proof of causing a person to engage in an act of a sexual nature an additional element (sexual slavery) instead of evidence of exercising powers of ownership over a person (enslavement, defined as slavery), has backed the Court into a historically and factually incorrect finding that sexual slavery is a more ‘specific form’ of enslavement and in finding that enslavement ‘is in the abstract entirely encompassed within sexual slavery.’
Ongwen, ‘Trial Judgment’ (n 45) para 3051.
 The more precise historical and factual analysis leads to the conclusion that the conduct criminalized under ‘sexual slavery’ constitutes criminal conduct already outlawed by the proscription of enslavement.
See Taylor, ‘Trial Judgment’ (n 66) para 427 (The Taylor Trial Chamber opined that sexual slavery, misconstrued as ‘forced marriage’ ‘constitutes a form of enslavement in that the perpetrator exercised the powers attaching to the right of ownership over their “bush wives” and imposed on them a deprivation of liberty, causing them to engage in sexual acts as well as other acts. […] All of these forced acts, both sexual and non-sexual acts, fall within the definition of enslavement’.); Sesay, ‘Trial Judgment’ (n 66) para 156.
 In other words, when sexual autonomy and sexual integrity are subjected to ownership, enslavement or slavery exists
See Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, ‘Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, Final Report Submitted by Ms. Gay J. McDougall, Special Rapporteur’ E/CN.4/Sub.2/1998/13 (22 June 1998) para 46; see also ‘Practice Relating to Rule 94: Slavery and the Slave Trade’ International Committee of the Red Cross <https://ihl-databases.icrc.org/en/customary-ihl/v2/rule94>.
 regardless of whether the perpetrator causes the enslaved person to engage in an act of a sexual nature.
Moreover, sexual slavery as a separately enumerated crime has been applied restrictively, leading to discriminatory results. In Ongwen, the defendant perpetrated acts of a sexual nature and control of sexuality against all enslaved persons. For example, enslaved boy-child soldiers were forced to rape; enslaved girl-children, called ting tings, were, inter alia, subjected to forced checking of the onset of menstruation to determine whether they had reached puberty and were ‘ready’ to be raped and groomed to become ‘wives’.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Ongwen, ‘Trial Judgment’ (n 45) paras 2819, 3073 (describing physical and sexual violence to find torture as a crime against humanity and war crime), 2100, 2146 (collecting young girls free of HIV or other diseases), 2249-2250 (checking for breast development and menstruation), 2251 (‘if a girl was still very young, she was “nurtured”, “kept to grow until when she’s fit to be given out to a man” (…) [deciding] that a girl was “old enough to be given to a man as a wife”’.). The girl-child ting tings who were not subjected to rape or other ‘act of a sexual nature’ were not characterized as sexually enslaved, nor were they characterized as sexual slaves as war crimes under Article 8. Article 8 provisions are not analogous to enslavement under Article 7 and, therefore, cannot precisely characterize such criminal conduct.
 Enslaved ‘wives’ were controlled sexually through, inter alia, exclusive sexual access when in relationships in which they were subjected to rape.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Ongwen, ‘Trial Judgment’ (n 45) para 3086. The Rome Statute criminalizes enslavement as a crime against humanity but does not criminalize slavery as a war crime. While the Rome Statute does not include slavery (or the slave trade) under Article 8, slavery and the slave trade are war crimes. See ‘Instructions for the Government of Armies of the United States in the Field (Lieber Code)’ (24 April 1863) Arts 42, 58; ‘Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (‘London Agreement’)’, 82 UNTC 280, 8 August 1945, Art 6 (‘deportation to slave labour’); ‘Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity’ (20 December 1945) Art II(1) (‘deportation to slave labour’); Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, ‘Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)’, 8 June 1977, Art 4(2)(f) (‘slavery and the slave trade in all their forms’ are and shall remain prohibited); International Committee of the Red Cross (n 85).
 Enslaved ting tings who later became ‘wives’ were controlled sexually throughout their enslavement regardless of whether they were subjected to rape.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26); Ongwen, ‘Trial Judgment’ (n 45) paras 2272 (the ‘prohibition of sexual relations with ting tings ’ as ‘the crucial marker distinguishing the status of ting ting from the status of so-called ‘wife’.), 3086 (noting that while ‘Sinia brigade members regularly forced abducted women and girls who had been “distributed” to them into sexual intercourse is not limited to so-called “wives”, and (…) ting ting status did not effectively protect abducted girls from sexual abuse, the Chamber nevertheless considers that there existed, systemically, a sub-category of abducted girls in the LRA who were not sexually enslaved, but enslaved.’).
 Ongwen directly and indirectly exercised powers attaching to the right of ownership over these enslaved persons’ sexuality, sexual integrity and sexual and reproductive autonomy, whether or not they were subjected to rape. The Court, however, narrowly interpreted sexual slavery by focusing solely on heteronormative male-on-female rapes in the context of abductions and distributions.
The Court also erroneously interpreted enslavement by excluding the exercise of physical and psychological control over enslaved persons’ sexuality as an inherent part of the exercise of ownership over the person.
Ongwen, ‘Trial Judgment’ (n 45) para 3047 (act of a sexual nature constituting exclusively male-on-female rape). See also ICC Office of the Prosecutor, ‘Policy Paper 2014 Sexual and Gender-Based Crimes’ (June 2014) n 6 (recognizing the advancement in the understanding of the definition of rape, noting that rape can be perpetrated not only by force, but also by threat of force or coercion).
 In enslavement situations, the threat of sexualized violence and the total control that perpetrators have over victims’ entire beings is present throughout the situation of enslavement and is an inherent part of the exercise of powers attaching to the rights of ownership over sexuality, sexual integrity, and sexual and reproductive autonomy.
Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26).
 For instance, while the Ongwen Court recognized an artificial separation of status between ting tings (ie, girls domestically enslaved) and so-called ‘wives’ (ie, women and girls sexually enslaved) as the ‘prohibition of sexual relations with ting tings’,
Ongwen, ‘Trial Judgment’ (n 45) para 2077.
 Sinia brigade soldiers frequently raped both ‘wives’ and ting tings.
Ongwen, ‘Trial Judgment’ (n 45) para 3086 (noting that while ‘Sinia brigade members regularly forced abducted women and girls who had been ‘distributed’ to them into sexual intercourse is not limited to so-called “wives”, and […] ting ting status did not effectively protect abducted girls from sexual abuse, the Chamber nevertheless considers that there existed, systemically, a sub-category of abducted girls in the LRA who were not sexually enslaved, but enslaved.’).
 Thus, the threat of sexualized violence was omnipresent whether the individuals were enslaved or sexually enslaved, but this constant threat of harm included in all slavery situations was left unredressed.
The ICC’s unnecessarily restricted interpretation of enslavement and sexual slavery also discriminates on the basis of, among other statuses, gender and age, perpetuating to date the misconceptions that enslavement primarily criminalizes the general deprivation of liberty, forced labor, or non-sexualized violence perpetrated against enslaved persons, while the crime of sexual slavery primarily criminalizes rape and rape-like acts in the enslavement of women and girls.
ibid.
 Furthermore, requiring enslaved women and girls to prove additional acts of a sexual nature indicating the exercise of ownership over them in the form of rapes constitutes gender discrimination in the law’s interpretation and application in violation of Article 21(3) of the Rome Statute.
ibid. The Court correctly characterized the harms of enslaved women and girls, including girl-child ting tings, who were not raped as enslavement, but the correct result was reached for the wrong reasons; it was not because the victims’ enslavement excluded rape. ibid; Ongwen, ‘Trial Judgment’ (n 45) paras 3086, 3073. For these women and girls, indicia of enslavement also include control of sexuality, sexual integrity and sexual and reproductive autonomy. However, given the way the Prosecution fragmented the material facts and circumstances into various charges in this case, facts indicating control of sexuality and control over sexual and reproductive autonomy were charged solely as forced marriage as another inhumane act and as forced pregnancy, but not as enslavement. See, eg, Ongwen (Public Redacted Version ‘Decision on the confirmation of charges against Dominic Ongwen’) ICC-02/04-01/15-422-Red (23 March 2016) paras 75, 79, 84, 88, 93, 102. Male victims of enslavement also had their sexuality, sexual integrity and sexual and reproductive autonomy controlled because, for instance, enslaved men could not choose to engage in any act of a sexual nature or choose to reproduce. However, these facts were not charged in this case under enslavement or any other crime. Ongwen, ‘Amici Curiae Observations on Sexual- and Gender-Based Crimes’ (n 26).
 The fact is that victims who are enslaved can prove exercise of powers attaching to the rights of ownership in myriad ways, and any and all enslaved individuals’ sexual integrity, and sexual and reproductive autonomy, are controlled entirely, whether or not the individual is caused to engage in any acts of a sexual nature.

Trafficking in Persons is Conduct, not an International Crime

The Rome Statute’s Article 7(2)(e) enslavement description includes the phrase ‘trafficking in persons’, a transnational crime that is not a separately enumerated crime under the crimes against humanity prohibition. Neither does the ICC Elements of Crimes document include elements of trafficking as a crime.
ICC, ‘Elements of Crimes’ (n 39).
 Accordingly, trafficking is neither a separate crime nor a required element of enslavement under the Rome Statute.
P Viseur Sellers, ‘Q&A, The Nexus Between Conflict-Related Sexual Violence and Human Trafficking for Sexual Exploitation in Times of Armed Conflict During Court Proceedings: An Insider’s View’ (2019) 3 Journal of Trafficking and Human Exploitation 147-158.
The ICC’s Office of the Prosecutor (OTP) supports this conclusion, noting that the Court has jurisdiction over enumerated crimes, which does not include trafficking in persons.
See ICC, Office of the Prosecutor (n 89) 16-17 (describing jurisdiction over enumerated crimes contained in article 7 in which trafficking in persons is not listed as an enumerated crime).
 The OTP’s 2016-2018 strategic plan states that ‘ICC crimes usually do not occur in isolation from … other types of criminality, such as . . . transnational organised criminal activity’.
ICC, Office of the Prosecutor, ‘Strategic Plan 2016-2018’ (16 July 2015) 14, para 30.
 The OTP lists trafficking among those transnational organized crime activities, clarifying that trafficking is distinct and not an international crime within the ICC’s jurisdiction.
ibid. Notably, two versions of this policy exist on the Internet, one that includes this language and one that does not. See N Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (2016) 14(2) Journal of International Criminal Justice 405, 415.
 Trafficking in persons, however, can describe a conduct that could constitute evidence of the exercise of powers of the right of ownership of enslavement.
Aside from these status and jurisdictional differences, the definition and requirements of human trafficking crimes differ from the elements of slavery and slave trade crimes.
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, 15 November 2001, 2237 UNTS 319 (hereinafter ‘Palermo Protocol’), Art 3.
 The purpose of criminalizing trafficking is for state judicial authorities to prevent individuals from being subjected to forms of exploitation, with slavery being one listed form of exploitation.
Presumably, the slave trade would also constitute a form of exploitation under the Palermo Protocol. See ibid.
 The Palermo Protocol defines trafficking in persons as ‘the recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation’.
ibid, Art 3(a). The former Special Rapporteur on trafficking in persons, Joy Ngozi, affirmed this interpretation, stating that ‘the definition of “trafficking in persons” under Article 3(a) of the Palermo Protocol makes clear that trafficked persons are deceived or forced (by threat or coercion) to move for the purpose of exploitation’. ‘Report for the Sixty-Fifth Session for the General Assembly’, UN Doc A/65/288, 9 August 2010.
 Thus, the Palermo Protocol defines trafficking as requiring an act (the movement, recruitment, receipt, or harboring of persons) accomplished by a means (by force, threat of force, fraud, deception, coercion, abduction) for a purpose (exploitation, defined as, at a minimum: exploitation of prostitution, forced labor, slavery, or slavery-like practices, servitude, or removal of organs).
Palermo Protocol (n 97) Art 3; RM Jaleel, ‘The Wages of Human Trafficking’ (2016) 81(2) Brooklyn Law Review 563, 574; UN Office on Drugs and Crime, ‘Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto’, UN Sales No E.06.V.5 (2006) 344, n 26, 29 (‘“Exploitation” shall mean reduction to servitude, subjection to prostitution, slavery, forced labour or child pornography (…) most delegations favoured including the reference to “servitude”. Those opposed to the inclusion cited a lack of clarity as to the meaning of the term and duplication with the reference to “slavery or practices similar to slavery”. It was also noted that, if the word “servitude” was to be deleted from this subparagraph.’). The slave trade was not considered to be a form of exploitation; instead, it was likened to acts of piracy. J Getgen Kestenbaum, ‘Myth of Slavery Abolition’ 61 University of San Francisco Law Journal (Hastings) (forthcoming 2024).
The purpose of criminalizing the slave trade is to eradicate the reduction of persons into slavery or the trade or transport of enslaved persons from one situation of slavery to another.
Van der Wilt, ‘Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the Concepts’ (n 23) 303.
 The slave trade condemns the forms of reducing persons into slavery situations and the transporting of enslaved persons.
ibid. The slave trade’s mens rea aligns with slavery objective because the purpose of transportation is to reduce the victim to the ownership of another.
 While a thin and overlapping factual line exists between subjugation to exploitation and reduction into slavery, significant legal differences distinguish the slave trade and slavery from human trafficking.
The definition of human trafficking centers on exploitation.
UN Gen Assembly, Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime 2, UN Doc A/AC.254/4/Add.3/Rev.7 (19 July 2000).
 Although slavery and the slave trade often include exploitative practices, their legal definitions do not necessitate proof of exploitation. The definition of slavery turns on the exercise of powers attaching to the rights of ownership over a person.
1926 Slavery Convention (n 8) Art 1(1). A perpetrator can, however, exercise powers of ownership through inter alia exploitative practices. Thus, exploitation can be – and often is – evidence of the exercise of powers of ownership over a person. J Getgen Kestenbaum, ‘Prohibiting Slavery and the Slave Trade’ (n 57).
 In contrast, the slave trade requires neither ownership nor exploitation; rather, the slave trade turns on intent to reduce someone into, or maintain someone in, slavery, or to dispose of a person enslaved.
ibid Art 1(2).
 The intent to reduce or maintain someone in a situation of slavery and an act of slave trading suffices to establish the crime of the slave trade; it is not dependent upon the outcome
ibid.
 of slavery occurring or the type of subjection of individuals enslaved.
P Viseur Sellers, ‘Wartime Female Slavery: Enslavement?’ (2011) 44 Cornell International Law Journal 115, 123.
 A person can be traded into slavery and perform (or not perform) any labor or service.
Sellers and Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (n 27) 525; P. Viseur Sellers and J. Getgen Kestenbaum, ‘Sexual Slavery and Customary International Law’, in S Weill et al (eds), Prosecuting the President: The Trial of Hissène Habré (Oxford University Press, 2021).
To illustrate a factual distinction, consider an adult and their young child enslaved who are forcibly transferred from one situation of slavery to another. The perpetrator intends to maintain the adult in slavery but disposes of the enslaved child. The adult has been slave traded and trafficked, while the child has been slave traded but not trafficked. Another example includes the case of serial slave trading in which several abductions and transfers are made and in which no exploitation occurs. Perpetrators would be committing the crime of the slave trade but not the crime of trafficking in persons.
Although trafficking seems to coincide with transporting persons into exploitation of slavery, its purpose does not require intent to reduce someone into slavery. Exploitation does not necessarily equate with the intent to reduce someone into de jure or de facto slavery.
Palermo Protocol (n 97) Art 3(a).
 The traffickers’ exploitative purpose toward victims may be financial and unrelated to slavery, charging exorbitant prices for transportation to foreign states with promises of employment that never materialize and later forcing individuals to harvest their kidneys. Such exploitation would constitute trafficking but not amount to intent to slave trade or enslave.
In US v Ferrell, for example, defendants in South Dakota recruited Filipino workers, supplying visas, employment contracts, and housing, to work in their hotel. When the workers arrived in the United States, however, the defendants forced them to give up their passports and placed crippling debts on the workers, forcing them to work more than thirteen hours each day. Farrell, 563 F.3d (2009) at 368-370; United Nations Office on Drugs and Crime, Evidential Issues in Trafficking in Persons Cases: Case Digest (2017) 150-154. The United Nations Office on Drugs and Crime (UNODC) specifically found that the defendants’ threat of criminal immigration sanctions coerced workers to the exploitation of forced labor. ibid 151.
Moreover, trafficking requires proof of ‘means’ to demonstrate an adult victim’s lack of consent and, therefore, to render consent irrelevant.
Palermo Protocol (n 99) Art 3(a); see also UN Office on Drugs and Crime (n 102) 339-348, (explaining the legislative history surrounding the language and elements of the Palermo Protocol). Slavery does not permit consent as a consideration; see also Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (n 98) 417.
 Proof of means must establish that traffickers used ‘threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits’.
Palermo Protocol (n 99) Art 3(a); A M Pesman, Prosecuting Human Trafficking Cases as a Crime Against Humanity? 15-16 (Nov 2012); B Balos, ‘The Wrong Way to Equality: Privileging Consent in the Trafficking of Women for Sexual Exploitation’ 27 (2004) Harvard Women’s Law Journal 137, 148 (‘Nonconsent and the use of force or coercion by traffickers have emerged in recent international human rights documents as essential, yet controversial, elements of human rights violations in the context of trafficking.’).
 In trafficking cases, defendants can claim a consent defense to challenge the proof of coercive means in the case of adults.
Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (n 98) 417.
 Only when ‘any of the means set forth in [Article 3](a) have been used’
Palermo Protocol (n 99) Art 3(b).
 does the Palermo Protocol prohibit a consent defense.
S Huda (Special Rapporteur on trafficking in persons, especially women and children), ‘Integration of the Human Rights of Women and the Gender Perspective’, UN Doc. E/CN.4/2005/71, 22 December 2004 § 6.
 The alleged trafficker, however, may raise consent as a defense to negate the prima facie element of coercive means by alleging that the victim was informed and in agreement.
See UN Office on Drugs and Crime, ‘Issue Paper: The Role of “Consent” in the Trafficking Person Protocol’ (2014) (discussing how the ‘means’ element is intended to demonstrate the negation of consent. This element is inapplicable to children since they have diminished or no legal capacity.). The United Nations Office on Drugs and Crime has indicated that ‘[c]onsent of the victim can be a defence in domestic law, but as soon as any of the improper means of trafficking are established, consent becomes irrelevant and consent-based defences [sic] cannot be raised.’ See UN Office on Drugs and Crime, ‘Toolkit to Combat Trafficking in Persons’ (2008) 6-7.
 Thus, whether trafficking has occurred turns on whether alleged victims agreed to their situation and whether the defendant used coercive or improper means to bring a person into a situation of inter alia labor that may be exploitative.
In contrast, neither slavery nor the slave trade require proof of coercive circumstances.
Granted, proof of the indicia of exercise of powers attaching to the right of ownership under slavery might entail facts focusing on ‘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 labor’. Kunarac, ‘Trial Judgment’ (n 69) para 119. Nevertheless, proof of coercive circumstances is not an element of slavery or the slave trade. In Kunarac, for instance, the ICTY held that lack of consent is not an element of enslavement. ibid para 542; Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (n 98) 417. Similarly, the ECCC and SCSL have held that proof of lack of consent is not required to prove enslavement. Duch, ‘Trial Judgment’ (n 71) para 346; Taylor, ‘Trial Judgment’ (n 68) para 420.
 Coercive circumstances are not legally relevant and are not a defense to commission of slavery or slave trade crimes.
1926 Slavery Convention (n 8); Kunarac, ‘Trial Judgment’ (n 71) para 540-543. The Court defines the crime of enslavement as including only the elements of mens rea and actus reus. ibid. The Court then describes factors or methods of control ‘as taken into consideration in determining whether enslavement was committed’. ibid.
 Likewise, consent is neither an element nor a defense to slavery and the slave trade.
Kunarac, ‘Trial Judgment’ (n 71) para 542; Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (n 98) 417. Similarly, the ECCC and SCSL have held that proof of lack of consent is not required to prove enslavement. Duch, § 346; Taylor, ‘Trial Judgment’ (n 68) para 420.
 Consistent with the plain language of Articles 1(1) and (2) of the 1926 Slavery Convention, the determinative factors are the slave traders’ and enslavers’ intent and actions, not the victim’s state of mind.
Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (n 98) 417.
Trafficking in persons resembles the slave trade in that both might involve recruitment, transportation, etc. Also, neither trafficking nor the slave trade requires the exercise of any powers of ownership over the person trafficked or slave traded. Whenever traffickers exercise powers of ownership over a person, they are perpetrating slavery in addition to trafficking.
Many scholars and practitioners consider human trafficking and slavery to fall along a continuum of exploitation, with trafficking somewhere in the middle and slavery being on the extreme. To me, this understanding, while useful rhetorically, is not reflective of their definitional differences in kind under law. Consider, for example, a slaveholder who covets and adores an enslaved person and does not extract any labor or other work from them. The enslaved individual, however, is not free to exercise personal autonomy or control. This exercise of powers of ownership is not necessarily exploitative in nature, but the exercise of powers of ownership over the person could still constitute slavery. Admittedly, ‘ownership’ and ‘exploitation’ each has its definitional limitations, but legally these concepts are not the same. In the case of the slave trade, neither ‘ownership’ nor ‘exploitation’ is required. The slave trader can be transporting an enslaved person willingly from one slaveowner to another with the utmost care and without any exercise of ownership—they would still be committing the slave trade if they intend to maintain the enslaved person in a situation of slavery.
 The Rome Statute’s Article 7(2)(e) accordingly describes conduct of slavery citing to trafficking acts when powers of ownership are exercised. For the reasons described above, trafficking in persons cannot fill the gaps left by omitting slavery and slave trade crimes in the Rome Statute.

Conclusion: Closing Impunity Gaps in the Rome Statute and Beyond

The Rome Statute creates a wide impunity gap by omitting the slave trade entirely as a war crime and crime against humanity and by including only those conflict-related slavery acts that include causing someone to engage in an act of a sexual nature. The Rome Statute does not enumerate the slave trade or slavery under Article 8 as war crimes. It does not define the slave trade within the crime of enslavement under Article 7(g) as a crime against humanity or explicitly enumerate the slave trade within the context of a widespread or systematic attack against a civilian population.
J Allain, ‘The Definition of ‘Slavery’ in General International Law and the Crime of Enslavement within the Rome Statute’, The Law and Slavery: Prohibiting Human Exploitation (Brill 2015) 12.
 These omissions result in conflict-related slavery that does not include causing a person to engage in an act of a sexual nature and nearly all slave trade perpetrator impunity. War crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute sanctions only persons exercising powers attaching to rights of ownership who also cause that person to engage in an act of a sexual nature. Crimes against humanity conduct also escapes legal sanction when perpetrators transport or otherwise engage in any slave trade acts without exercising powers attaching to the right of ownership over a person.
See Allain (n 21) 274. The ICC enslavement crime provision – essentially a reduction to the crime of slavery – is more limiting than the customary law meaning of enslavement. It gives primary importance to the exercise of powers of ownership over a person, including while trafficked, without giving meaning to the slave trade. ibid.
Furthermore, the bifurcation of enslavement and sexual slavery leads to non-factual, incomplete, and discriminatory results. Sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and others’ slavery harms to escape legal characterization altogether.
Sierra Leone’s proposals to amend the Rome Statute and CAH Draft articles to enumerate, inter alia, the slave trade as a crime against humanity will go a long way in closing the impunity gaps for slavery and slave trade crimes’ perpetration and in ensuring the continued progressive development of international law. Such amendments will bring the Rome Statute and CAH Draft articles in line with customary international law regarding the slave trade, which is currently ‘missing in action’ in international criminal law adjudication and redress.
Member states of the ICC, however, should not stop there. In addition to Sierra Leone’s proposal to include the slave trade as a crime against humanity, states should consider deleting sexual slavery as a separate crime against humanity from the Rome Statute and CAH Draft articles, which would bring conduct characterized as sexual slavery appropriately within the crime of enslavement. Moreover, states should consider deleting sexual slavery as a war crime in both international and non-international armed conflict from the Rome Statute.
As demonstrated supra, sexual slavery is reductive and redundant from a factual point of view, these separate enumerations of sexual slavery crimes should be removed from the Rome Statute and placed under the crime against humanity of enslavement and the war crimes of slavery in both international and non-international armed conflicts. For detailed arguments on these points, see Sellers and Kestenbaum, ‘Slavery and the Slave Trade: A Feminist Critique’ (n 17).
 Further, ASP member states should consider amendments to enumerate slavery and the slave trade as war crimes under Article 8. Adding slavery and the slave trade to the war crimes provisions will bring the Rome Statute in line with firmly established customary international humanitarian law norms.
Finally, while the listing of trafficking in persons under the crimes against humanity of enslavement is describing conduct that may be considered evidence of enslavement, the wording has introduced unnecessary confusion and further conflation of international slavery crimes with transnational human trafficking crimes. Thus, states also should consider removing such language from the text of the Rome Statute and CAH Draft articles. Deleting references to trafficking in persons will not take away any jurisdictional power of the Court to investigate, prosecute, punish, or provide redress to victims/survivors of human trafficking crimes as the ICC cannot exercise jurisdiction over transnational crimes. Trafficking conduct could be investigated, and evidence could assist in proving slavery crimes. All roads to redress would be paved so long as slavery and slave trade crimes are enumerated in line with customary international law under the Rome Statute.
Marking the 25th anniversary of the Rome Statute on July 17, 2023, Prosecutor Karim Khan stated that the Assembly of States Parties to the ICC is the appropriate body to move the slavery crimes proposed amendments forward. In a related Press Release, Khan remarked that this moment was a time ‘to reflect on what has been achieved but, perhaps more importantly, what more we can do together. This milestone should be used to accelerate our action in transforming the long-awaited promise of justice into a reality for those communities we serve. Our willingness to evolve, our focus on improving our work, and our determination to deliver results, will be central to deepening the impact of international criminal justice in the next quarter-century.’
‘The ICC Marks Rome Statute’s 25th Anniversary’ International Criminal Court (17 July 2023) <https://www.icc-cpi.int/news/icc-marks-rome-statutes-25th-anniversary> accessed 22 September 2023.
While legally, the case has been made, the political road still lies ahead.


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