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466 Chapter 13 Prosecuting Sinai Trafficking: An Overview of Options Daniel Mekonnen & Wegi Sereke It is in fact a system that is prepared as if it was a loophole, for whoever who wishes to use it. It is like leaving money on the street without telling the people to take it. It is a system that is purposely left without administrative control, thereby inviting the military and others to exploit it. (Interview, Van Reisen with KD Hosabay, Skype, 30 November 2016) There are reasonable grounds to believe that Eritrean officials have committed the crime of enslavement, a crime against humanity, in a persistent, widespread and systematic manner since no later than 2002. (UNHRC, 2016, para. 68) Introduction Human trafficking, particularly the phenomenon that has come to be known as ‘Sinai trafficking’, is a heinous violation of international law (Shelly, 2010; Gallagher, 2010; Van Reisen, Estefanos & Rijken, 2014). This new form of trafficking, which emerged at the end of 2008, is challenging academics and researchers to adopt a new definition of trafficking that takes into account the peculiar characteristics of human trafficking in the Sinai (Abdel Aziz, Monzini & Pastore, 2015; Berhane, 2015; Van Reisen & Rijken, 2015), namely, the commodification of human beings who are sold and on sold in the process of trafficking for ransom while “money is extorted from the relatives of hostages (initially migrants and refugees) by traffickers using mobile phones while hostages are tortured to pressure relatives 467 into paying the ransom amounts” (Van Reisen & Rijken 2016, p. 117). Sinai trafficking has been defined as: an identified pattern of “abduction and displacement, captivity, torture, sexual violence, humiliation, forced begging, extortion, commoditisation of people by selling, serial selling and killing” (Van Reisen et al., 2014, p. 23). This phenomenon stretches from the Greater Horn of Africa region to the Sinai Desert and beyond. Although no new cases of Sinai trafficking have been reported since 201548 , its root causes have not been addressed and its perpetrators remain at large. As this chapter will reveal, the human rights situation in Eritrea, which drove the migration that fed the smuggling and trafficking networks, remains unchanged. Among the alleged perpetrators are high-ranking military officials, who have not been brought to justice. Therefore, the people of Eritrea are still fleeing Eritrea in large numbers and are still at risk of exploitation. Until those responsible for human trafficking in the Sinai are brought to justice, the Eritrean people will not be safe and cannot heal from what will be argued in this chapter are ‘atrocity crimes’. This chapter looks at the options for prosecuting Sinai trafficking, to hold those responsible accountable. By distilling the most pragmatic options for prosecutorial accountability, at the international level, this chapter aims to provide a cursory overview of the existing legal framework in this regard, followed by some practical recommendations towards the prosecution of human trafficking. It starts by looking at prosecution (as an essential element of combating human trafficking) and the international legal framework, followed by Eritrea’s central role in the trafficking cycle. It then examines state responsibility and individual responsibility as the two main practical avenues for prosecution, as well as the different legal forums for prosecution. Finally, it looks at the responsibility of the international community to respond more broadly to the situation in Eritrea through the doctrine of the 48 Reports have been provided reporting hostages being trafficked or killed in Sinai in 2015 and 2016 by Van Reisen (informal document, unpublished, anon, January 2017). 468 responsibility to protect (R2P). Without undermining the role of the other two components, this chapter examines the most effective available prosecutorial options, conceived under international and regional legal frameworks, for ensuring accountability for the transnational crime of human trafficking, in particular, Sinai trafficking. Prosecution: Essential in combating human trafficking Prosecution is one of the three elements of combating human trafficking, also known the ‘3P paradigm’, the other two being: prevention and protection (United States Department of State, 2011; Mekonnen & Estefanos, 2011). It emphasises the need to prosecute human traffickers and those who aid and abet in the perpetration of this grotesque violation of international law, which is akin to modern day slavery. The prosecution of human traffickers is not an easy endeavour, mainly due to the fact that the crime is highly clandestine and, as a result, the great majority of human trafficking cases go unreported. Due to its transnational nature, it involves a wide range of actors, including international criminal organisations, spanning a global network (Rijken, 2003; Mekonnen...


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