Northeros, Westeros and Southeros are three democratic states with court systems that are in tandem with international standards of due process. However, among the three, only Northeros is privy to the ICC Statute. None of the states is party to any of the international or regional treaties related to human trafficking or work conditions. All three states are members of the United Nations and the International Labor Conditions.
Mr. McGregor Klegane is a national of Northeros and an extremely wealthy and powerful businessman.
He has been the CEO of Giant Finger Inc. for the past eight years. Giant Finger is incorporated in Northeros. Giant Fingers is the sole owner of Little Fingers, which is the subsidiary located in Westeros.
An estimate of 10,000 laborers from Southeros has been employed by the Shrimp-peeling sheds of Westeros. With regards to the employment contract, laborers are to be paid an average wage for unskilled laborers in Westeros. In addition, the employers retain 80 percent of the wages, together with the laborer’s passports and identification documents.
The employees were obliged to work 80 hours a week for a period of three years until they paid off their debts of their transportation fees for their travel and work permits that were paid by their employers. During the 3 year employment contract, the laborers are not allowed to leave. The laborers live in rustic camps as lodgings in isolated rural areas for their work.
About 60 percent of the Westeros shrimp is purchased by Little Fingers despite the public knowledge of the abusive labor practices.
On 6th April 2015, the government of Westeros announced that it would shut down offending work places and compensate victims after facing reports of widespread human trafficking in the shrimp industry. Mr. McGregor Klegane never instructed Little Fingers to suspend its purchasing. A class action lawsuit was filed in the Westeros District Court on behalf of the victims of abusive labor practices in the Westeros shrimp industry against Little Fingers.
The Westeros District Court on 25th February 2017 decided that Little Fingers continued extensive purchase of shrimp from the Westeros shrimp-peeling shed operators, with knowledge of their abusive labor practices. The court issued a judgment against Little Fingers and ordered it to pay $20 million in compensatory and punitive damages to the plaintiffs. The next day Little Fingers Inc declared insolvency and shut down operations. Its officers fled the country and their whereabouts are unknown. The victims have been paid nothing.
On 7TH May 2017 the Northeros District Court decided the case the Northeros against Mr. McGregor Klegane forfor aiding and abetting crimes against humanity and the domestic crime of human trafficking. The sole judge of this trial, Judge Nefarious, was appointed to the bench for an 8 year term by the former president of Northeros, to whom Mr. McGregor Klegane contributed millions of dollars to his campaign according to the Northeros Inquirer.
During the trial, the Northeros District Court acquitted Mr. McGregor Klegane on two grounds. First, the acts described in the 25th February 2017 judgment of the Westeros Trial Court constituted human trafficking, but did not constitute crimes against humanities as defined in Article 7(1)(k), Article 25(3) and Article 28(b) ICC Statute.
On 25 May 2017, the ICC Pre-Trial Chamber authorized an investigation into the Westeros shrimp laborers case at the request of the Prosecutor. After two months, the ICC issued a warrant for the arrest of Mr. McGregor Klegane for involvement in the crime against humanity under Article 7(1) (k), Article 25(3) and Article 28(b) ICC Statute. On 10 July 2017, Northeros took Mr. McGregor Klegane into custody and transferred him to the ICC.
On 30 July 2017, the Defense raised three objections in a written submission. First, the alleged acts should not be recognized as acts under Article 7(1) (k) ICC Statute. Second, the ICC did not have jurisdiction over Little Fingers’ acts because the ICC’s jurisdiction is limited to natural persons under Article 25(1) ICC Statute. Moreover, Mr. McGregor Klegane could not be prosecuted as an indirect co-perpetrator of crimes against humanity merely for failing to exercise proper control over the subsidiary, under either Article 25(3) or Article 28(b) ICC Statute. Third, the retrial would violate the ne bis in idem principle enshrined in Article 17(1) (c) and Article 20(3) ICC Statute.
On 30 August 2017, after considering all the submissions and arguments the Pre-Trial Chamber determined that the agreements between the shrimp-peeling shed operators and the Southeros migrants constituted the crime of human trafficking in customary international law and qualified as a crime against humanity under Article 7(1)(k) ICC Statute; that Mr. McGregor Klegane could be prosecuted for involvement in the crime under both Article 25(3) and Article 28(b) ICC Statute; and that the ne bis in idem principle did not apply where the domestic court’s acquittal was based on a clear error of law and there were reasons to doubt the impartiality of the domestic judge. Consequently, the Pre-Trial Chamber confirmed the charges. Against this decision, the Defence launched the present interlocutory appeal, challenging the jurisdiction and admissibility of the ICC.
A) PRE-TRIAL CHAMBER ERRED BY PLACING THE SAID CRIME UNDER ARTICLE 7(1)(K) OF THE STATUTE
B) LITTLE FINGERS CANNOT BE CONSIDERED TO BE AN UNINDICTED CO-PERPETRATOR FOR PROSECUTING THE DEFENDANT UNDER ARTICLE 25(3) (a) OF THE STATUTE.
C) PRE-TRIAL CHAMBER DISREGARDED THE NE BIS IN IDEM PRINCIPLE ARTICULATED IN ARTICLE 20 OF THE STATUTE HENCE ERRED IN ADMITTING THE CASE AGAINST THE DEFENDANT.
This appeal is being lodged by the Counsel for the Defendant herein referred to as the Defence, the Defendant being McGregor Klegane herein referred to as Klegane. The present appeal is under Article 82(1) of the Rome Statute of the ICC (“Statute”), which states the decisions that either party may appeal in accordance with the Rules of Procedure and Evidence. The Defence outlines:
Article 82(1) of the Statute the Appeal Chamber herein the “Chamber” can review decisions with respect to jurisdiction or admissibility, the granting or denying release of the person being investigated or prosecuted, a decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3 and a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance theproceedings.
This means that the Chamber can review a decision previously made by the Pre-Trial Chamber which were affected either by the errors in the facts or in the law.The Chamber shall review the facts brought to its table and they shall be reviewed and the Chamber shall come up with their own decision.
b) Preconditions for the intervention of the disputed decision
Once the above error materially affects the decision; materially affects meaning a decision a court would rule it differently from the erroneous decision;the Chamber is required torectify the error with its effects.Regulation 64(2) allows for the within 21 days of the relevant decisionin the prescribed manner and even how to go about it after appeal is granted according to Regulation 65(4).
c) The proof beyond reasonable doubt
Rules of Procedure and Evidence states that an Appeals Chamber may confirm, reverse or amend the decision appealed . The submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber. The prosecutor must have proof beyond reasonable doubt of the allegations brought forward meaning it must be solid evidence.The lack of proof beyond reasonable doubt makes this one of the grounds for the appeal.
A. PRE-TRIAL CHAMBER ERRED BY PLACING THE SAID CRIME UNDER ARTICLE 7(1)(K) OF THE STATUTE.
The Defence submits that the PTC erred in confirming charges against Klegane. The Southeros workers were lawfully employed by the Shrimp-shed operators and hence the acts do not constitute human trafficking. The alleged acts in no way constitute to Crimes against Humanity enshrined in article 7(1) (k) of the statute.
The statute has not given a provision as to what constitutes trafficking. Article 21(1) (b) of the statute however provides that the court can rely on the definition provided by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime which is the applicable treaty and relevant rule of International Law.
The protocol has three pre-requisites for an act to constitute human trafficking. These three include an action by which a person is moved into a situation of trafficking, the means used to secure the action and ultimately the exploitative purpose for which the means were used.
a. The process of recruiting the workers was lawful.
The Trafficking Protocol has established a number of ways in which consent can be achieved. The contractual recruitment of workers was a valid one. To begin with, the workers were in no way coerced as no form of threat was used. Second, there was no fraud as no promises were made with regards to the expected work conditions. Third, there was no abusive of power as there were no personal relationships between the workers and the shed-operators. Fourth, the shed-operators had no contract with any person having control over the workers so as to unable the purchase. Finally, even though the workers were at a vulnerable place, having no other form of employment, they themselves sought employment in Westeros and were offered the standard wage.
b. The sole purpose for employment of the workers was not backed by any exploitive reason.
The situation that the workers were subjected to was not one of forced labor, slavery, slavery-like practices or servitude. They can therefore not be said to have been recruited for an exploitive purpose.
1) The workers were in no way subjected to forced labor.
Only in the instance that work is initiated under a menace of penalty and the person has not offered himself voluntarily for work can forced labor be said to exist. The fact that the workers object to a situation that they initially consent to does not necessarily mean that they were subjected to forced labor.
Also of great importance is that most of the times when there is a fixed contract, the contract is not considered to be exploitive unless in a situation where the employees are still being held even after the contract has expired.
2) The workers were in no way subjected to slavery or even slavery-like practices.
For there to be slavery, the powers exercised over the victim are required to be absolute to the extent that a person can be purchased or sold. There should also be no form of compensation for the work performed.
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