At the Crossroads: Evidential Challenges in the Investigation and Prosecution of Trafficking in Persons for Sexual Exploitation and Sexual Violence in Situations of Conflict

There is growing socio-political and legal recognition of the intersections between conflict-related trafficking in persons (TIP) for the purpose of sexual exploitation and conflict-related sexual violence. While on first glance, the elements of crimes for TIP and sexual slavery/enslavement as a crime against humanity/war crime are quite distinct and the type of law and choice of forum may vary, both sets of crimes have benefitted from a more expanded and nuanced interpretation of the core definitional terms of each, such as 'ownership', 'vulnerability' and 'consent'. Likewise, a closer examination of the key evidential challenges facing investigators and prosecutors within both legal frameworks reveals a number of striking similarities relating to the investigative context, lack of international cooperation, lack of witness protection, limited availability of sources of evidence, and challenges in the collection of victim-witness and linkage evidence, specifically for victims of sexual violence and child victims.
The author concludes that the two legal frameworks must be seen as complementary and mutually reinforcing. The fact that there are so many shared evidential challenges is an indication of the potential for increased cooperation between Member States (and those supporting national efforts such as international organizations) investigating and prosecuting transnational organized crime, and international justice mechanisms (the International Criminal Court (ICC) and ad-hoc, hybrid or other tribunals). The prosecution of TIP for sexual exploitation in conflict situations at the national level is an important step towards closing the impunity gap for SGBV as international crime.