Smuggling and Trafficking in Smuggling and Trafficking in Human Beings – the Human Beings – the

international legal frameworkinternational legal framework

IOM-UNITARIOM-UNITAR

UN HQUN HQ

NYCNYC

June 2011June 2011Kristina Touzenis. Kristina Touzenis.

Why prevent irregular Why prevent irregular migration?migration?

to avoid exploitation of irregular migrants by to avoid exploitation of irregular migrants by employers, smugglers and traffickersemployers, smugglers and traffickers

to prevent the existence of a marginalised group to prevent the existence of a marginalised group in society thus contributing to social cohesion in society thus contributing to social cohesion and stabilityand stability

to ensure that migration is “managed” and the to ensure that migration is “managed” and the credibility of legal immigration policiescredibility of legal immigration policies

to ensure satisfactory salary levels and working to ensure satisfactory salary levels and working conditions for national workers and lawfully conditions for national workers and lawfully resident migrant workers, which are undermined resident migrant workers, which are undermined by the employment of irregular migrantsby the employment of irregular migrants

to avoid the existence of whole sectors to avoid the existence of whole sectors /businesses dependent on irregular migrant /businesses dependent on irregular migrant labourlabour

International responses: a International responses: a brief chronologybrief chronology

1970s1970s UN Resolutions against migrant smuggling UN Resolutions against migrant smuggling

/trafficking/trafficking ILO Convention No. 143 of 1975ILO Convention No. 143 of 1975

1980s - 19901980s - 1990 UN Migrant Workers Convention drafted (adopted UN Migrant Workers Convention drafted (adopted

18 December 1990; entry into force 1 July 2003)18 December 1990; entry into force 1 July 2003) 20002000

UN International Convention against UN International Convention against Transnational Organised Crime and Palermo Transnational Organised Crime and Palermo ProtocolsProtocols

United Nations Convention Against United Nations Convention Against Transnational Organized Crime, 2000Transnational Organized Crime, 2000

Protocol to Prevent, Suppress and Punish Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Trafficking in Persons, Especially Women and Children (2000)Children (2000)

Protocol Against the Smuggling of Migrants Protocol Against the Smuggling of Migrants by Land, Sea and Air (2000)by Land, Sea and Air (2000)

The Causes of smugglingThe Causes of smuggling

• Poverty, unemployment, and lack of opportunities • Political and humanitarian crisesPolitical and humanitarian crises• In many less developed regions of the world, children In many less developed regions of the world, children

are entrusted to more affluent friends or are entrusted to more affluent friends or acquaintances with the intention to improve their acquaintances with the intention to improve their lives and relieve their families of economic burdenlives and relieve their families of economic burden

• Demand for inexpensive labourDemand for inexpensive labour• Restrictive immigration policies in traditional Restrictive immigration policies in traditional

countries of destinationcountries of destination• Criminal networks and transnational organized crime Criminal networks and transnational organized crime

The Smuggling processThe Smuggling processTransferTransfer

SMUGGLING

BORDER

END OF RELATION WITH SMUGGLER

Agreement with the smuggler(consent) Destination

(Eventual Transit (Eventual Transit Country)Country)

• Trafficking is …

A Crime against the Individual

• Smuggling is…

A Crime against the State

The ConceptThe Concept• While, by definition, migrants cooperate with their smugglers –

even seeking them out and paying them—the act of smuggling can often be a dangerous and abusive one.

• Smuggling operations have many of the following characteristics:

• a broad transnational reacha broad transnational reach• networks of service providers to help in various stages of the networks of service providers to help in various stages of the

operationsinfluence on government officials at many levelsoperationsinfluence on government officials at many levels• access to large sums of money at many locationsaccess to large sums of money at many locations • ties with other criminal enterprises ties with other criminal enterprises • the ability to shift areas of operation according to "market" the ability to shift areas of operation according to "market"

conditions conditions • an association with persons capable of violence within their an association with persons capable of violence within their

networksnetworks

Article 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIRArticle 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR

(a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;

(b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State;

Scope of the ProtocolScope of the Protocol

To prevent and combat smuggling in personsTo prevent and combat smuggling in persons

To respect the Human Rights of smuggled To respect the Human Rights of smuggled migrantsmigrants

Investigation and prosecutionInvestigation and prosecution

To promote cooperationTo promote cooperation

Requires States to:

Criminalise smuggling

Co-operate to prevent smuggling

Strengthen border controls to detect smuggling

Address root causes

Appropriate measures to “preserve and protect” rights

Cooperate in return

Non-criminalisation of migrants

• Art. 5 Criminal liability of migrants• Migrants shall not become liable to criminal

prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.

Criminalisation of smugglers• 1. Each State Party shall adopt such legislative and other

measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:

• (a) The smuggling of migrants;• (b) When committed for the purpose of enabling the smuggling of

migrants:• (i) Producing a fraudulent travel or identity document;• (ii) Procuring, providing or possessing such a document;• (c) Enabling a person who is not a national or a permanent resident

to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

• (a) The smuggling of migrants;• (b) When committed for the purpose of enabling the

smuggling of migrants:• (i) Producing a fraudulent travel or identity

document;• (ii) Procuring, providing or possessing such a

document;• (c) Enabling a person who is not a national or a

permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

ContCont..

• Participating as an accomplice in an offence (…)

• Organizing or directing other persons to commit an offence

Aggravating Circumstances

• Circumstances:• That endanger, or are likely to endanger, the

lives or safety of the migrants concerned; or• That entail inhuman or degrading treatment,

including for exploitation, of such migrants.

Prevention, cooperation and other measures:

Information Border measures Security and control of documents Legitimacy and validity of documents Training and technical cooperation Protection and assistance measures (see upcoming

slide) Agreements and arrangements Return of smuggled migrants (see upcoming slide)

ProtectionProtection• Each State Party shall take, all appropriate measures,

including legislation if necessary, to preserve and protect the rights of persons, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

• Each State Party shall take appropriate measures to afford migrants appropriate protection against violence

• Each State Party shall afford appropriate assistance to migrants whose lives or safety are endangered

4. States Parties shall take into account the special needs of women and children.

5. In the case of the detention each State Party shall informe the person concerned without delay about the provisions concerning notification to and communication with consular officers.

ReturnReturn Return of smuggled migrants1. Each State Party agrees to facilitate and accept, without

undue or unreasonable delay, the return of a person who is its national or who has the right of permanent residence in its territory at the time of return.

2. Each State Party shall consider the possibility of facilitating and accepting the return who had the right of permanent residence in its territory at the time of entry into the receiving State in accordance with its domestic law.

3. a requested State Party shall, verify whether a person is its national or has the right of permanent residence in its territory.

4. In order to facilitate the return of a person who is without proper documentation, the State Party of which that person is a national or in which he or she has the right of permanent residence shall agree to issue, at the request of the receiving State Party, such travel documents

5. Each State Party involved with the return of a person shall take all appropriate measures to carry out the return in an orderly manner and with due regard for the safety and dignity of the person.

Prevention and Root CausesPrevention and Root CausesEach State Party shall take measures to ensure that it provides or

strengthens information programmes to increase public awareness of the fact that smuggling is a criminal activity frequently perpetrated by organized criminal groups for profit and that it poses serious risks to the migrants concerned.

States Parties shall cooperate in the field of public information for the purpose of preventing potential migrants from falling victim to organized criminal groups.

Each State Party shall promote or strengthen, as appropriate, development programmes and cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration and paying special attention to economically and socially depressed areas

Slavery and TraffickingSlavery and Trafficking

Slavery Convention 1926Slavery Convention 1926 Convention Concerning Forced or Convention Concerning Forced or

Compulsory Labour 1930Compulsory Labour 1930 Convention for the Supression of Trafficking Convention for the Supression of Trafficking

in Persons and the exploitation of the in Persons and the exploitation of the Prostitution of Others 1949Prostitution of Others 1949

UN Convention Against Transnational UN Convention Against Transnational Organized Crime + Protocols (entered into Organized Crime + Protocols (entered into force in 2003)force in 2003)

Trafficking – UN ProtocolTrafficking – UN Protocol

Trafficking in Persons: Trafficking in Persons: • TheThe recruitment recruitment,, transportation, transfer, harboring or receipt of transportation, transfer, harboring or receipt of

persons, persons, by means ofby means of threat, use of force or other means of coercion, threat, use of force or other means of coercion, of abduction, of fraud, of deception, of the abuse of power or of a of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the receiving or giving of payment… to position of vulnerability or of the receiving or giving of payment… to a person having control over another person, a person having control over another person, for the purpose of for the purpose of exploitation.exploitation.

• ExploitationExploitation shall include, at a minimum, the exploitation of the shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or labour or services, slavery or practices similar to slavery, servitude or the removal of organs.the removal of organs.

((UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Childrenand Children))

The Trafficking processThe Trafficking process

Recruitment Recruitment

Transfer

EXPLOITATION EXPLOITATION

COERCION

DECEPTION

ABUSE OF POWER

Place of OriginPlace of Origin Place of DestinationPlace of Destination

organised by a trafficker

exploitationexploitationmovementmovement

traffickingtrafficking

Concept of traffickingConcept of trafficking

Concept of trafficking: - movement of a person - for the purpose of exploitation- organised by a trafficker

ConsentConsent

• TheThe consent ofconsent of a victim of trafficking in persons to a victim of trafficking in persons to the exploitation shall be irrelevant where any of the the exploitation shall be irrelevant where any of the means of force, threat of, coercion, deception, have means of force, threat of, coercion, deception, have been used.been used.

• The recruitment, transportation, transfer, harbouring The recruitment, transportation, transfer, harbouring or receipt of a or receipt of a childchild for the purpose of exploitation for the purpose of exploitation shall be considered ”trafficking in persons” even if shall be considered ”trafficking in persons” even if this does not involve any of the means set forth in the this does not involve any of the means set forth in the definition of trafficking in persons.definition of trafficking in persons.

• - agency- agency

Force and coercionForce and coercion

There is always a point in the trafficking chain at There is always a point in the trafficking chain at which people are subjected to force or coercion: when which people are subjected to force or coercion: when they are recruited, during transportation, upon entry they are recruited, during transportation, upon entry or during work. or during work.

Both overt and subtle forms of coercion are used, Both overt and subtle forms of coercion are used, such as the confiscation of papers, non-payment of such as the confiscation of papers, non-payment of wages, induced indebtedness or threats to denounce wages, induced indebtedness or threats to denounce irregular migrant workers to authorities if they refuse irregular migrant workers to authorities if they refuse to accept the working conditions. to accept the working conditions.

Fraud, deception, abuse of powerFraud, deception, abuse of power It is absolutely irrelevant if the victim It is absolutely irrelevant if the victim

apparently apparently voluntarily entered or stayed in a voluntarily entered or stayed in a situation or conditions of labour exploitation if situation or conditions of labour exploitation if they were put in that situation through the use they were put in that situation through the use of threats, force, coercion, abduction, of threats, force, coercion, abduction, deception or fraud or by an abuse of power or deception or fraud or by an abuse of power or an abuse of their own position of vulnerability.an abuse of their own position of vulnerability.

Most of these concepts will already be clear in Most of these concepts will already be clear in national law however national law however coercion coercion and and abuse of abuse of power/vulnerability power/vulnerability are unlikely to beare unlikely to be

The “abuse of a power or of a position of The “abuse of a power or of a position of vulnerability” contained in Article 3 of the vulnerability” contained in Article 3 of the Protocol is understood to refer to any situation Protocol is understood to refer to any situation in which the person involved has no real and in which the person involved has no real and acceptable alternative but to submit to the acceptable alternative but to submit to the abuse involved. abuse involved.

ExploitationExploitation

The Protocol makes reference to some specific The Protocol makes reference to some specific forms of exploitation; however the list is not forms of exploitation; however the list is not exhaustive and it may include other forms as exhaustive and it may include other forms as well. The choice made was to extend as much well. The choice made was to extend as much as possible the definition of trafficking in as possible the definition of trafficking in persons to include any possible – known or persons to include any possible – known or still unknown – form of exploitation. still unknown – form of exploitation.

The Protocol does not define any of the mentioned The Protocol does not define any of the mentioned forms of exploitation related to forced labour. But a forms of exploitation related to forced labour. But a definition for each of them can be found in the definition for each of them can be found in the relevant international convention.  relevant international convention. 

Article 2, paragraph 1 of ILO Forced Labour Article 2, paragraph 1 of ILO Forced Labour Convention, 1930 (No. 29) defines forced labour as Convention, 1930 (No. 29) defines forced labour as “all work or service which is exacted from any “all work or service which is exacted from any person under the menace of any penalty and for person under the menace of any penalty and for which the said person has not offered himself which the said person has not offered himself voluntarily”.voluntarily”.

The concept of forced labour as defined by The concept of forced labour as defined by ILO Convention 29 comprises three basic ILO Convention 29 comprises three basic elements:elements:

a. the activity exacted must be in the form a. the activity exacted must be in the form of work or service;of work or service;

b. the menace of a penaltyb. the menace of a penalty c. it is undertaken involuntarily by the c. it is undertaken involuntarily by the

victimvictim

Penal law often does not place the emphasis on Penal law often does not place the emphasis on coercion, and often have rather subjective coercion, and often have rather subjective criteria as to what constitutes forced labour. criteria as to what constitutes forced labour.

. It is however important to underline that . It is however important to underline that simply poor working conditions do not alone simply poor working conditions do not alone constitute forced labour, there must be an constitute forced labour, there must be an element of intention to exploit.element of intention to exploit.

with the Protocol the focus was broadened and with the Protocol the focus was broadened and so was the understanding of what forced so was the understanding of what forced labour is – now it is shown that 80% of forced labour is – now it is shown that 80% of forced labour is in the private sector.labour is in the private sector.

Trafficking violates the most basic rights of Trafficking violates the most basic rights of any person in relation to a work situation – the any person in relation to a work situation – the freedom from coercion at work, the freedom to freedom from coercion at work, the freedom to set up associations and bargain collectively, set up associations and bargain collectively, and the freedom from discrimination at work. and the freedom from discrimination at work. Further trafficking of children has been Further trafficking of children has been defined by the ILO as one of the worst forms defined by the ILO as one of the worst forms of child labour, which seriously harms the of child labour, which seriously harms the development of the child. development of the child.

Slavery and servitudeSlavery and servitude

The 1957 Supplementary Convention on the The 1957 Supplementary Convention on the Elimination of Slavery, Slave Trade, and Elimination of Slavery, Slave Trade, and Institutions and Practice Similar to Slavery Institutions and Practice Similar to Slavery defines Slavery as “the status or condition of a defines Slavery as “the status or condition of a person over whom any or all of the powers person over whom any or all of the powers attaching to the rights of ownership are attaching to the rights of ownership are exercised”exercised”

The Supplementary Convention, art. 1(c) defines The Supplementary Convention, art. 1(c) defines marriage as a form of slavery in certain cases. “Any marriage as a form of slavery in certain cases. “Any institution or practice, whereby (i) a woman, without institution or practice, whereby (i) a woman, without the right to refuse, is promised or given in marriage the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to on payment of a consideration in money or in kind to her parents, guardian, family or any other person or her parents, guardian, family or any other person or guys, (ii) the husband of a woman, his family, or his guys, (ii) the husband of a woman, his family, or his clan has the right to transfer her to another person for clan has the right to transfer her to another person for value received or otherwise, or (iii) a woman on the value received or otherwise, or (iii) a woman on the death of her husband is liable to be inherited by death of her husband is liable to be inherited by another person”another person”

Prosecutor v. Kunarac

The ICTY elaborated on the meaning of slavery and The ICTY elaborated on the meaning of slavery and enslavement noting that a mere ability, among others, enslavement noting that a mere ability, among others, to buy, sell or trade people, although an important to buy, sell or trade people, although an important factor to be taken into consideration, is in itself factor to be taken into consideration, is in itself insufficient in determining whether or not the insufficient in determining whether or not the

enslavement is committed.enslavement is committed.

Trafficking may then be treated as slavery Trafficking may then be treated as slavery simultaneously mainly when people are simultaneously mainly when people are exploited afterwards by the traffickers exploited afterwards by the traffickers themselves – or the same organisation – as this themselves – or the same organisation – as this ensures the continuous exercise of the right of ensures the continuous exercise of the right of ownership. The duration of the suspected ownership. The duration of the suspected exercise of powers attaching to the right of exercise of powers attaching to the right of ownership is another factor that may be ownership is another factor that may be considered when determining whether considered when determining whether someone was enslaved.someone was enslaved.

Sexual exploitationSexual exploitation

In 1949 the Convention for the Suppression of In 1949 the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Traffic in Persons and the Exploitation of the Prostitution of Others was adopted. the Prostitution of Others was adopted.

Neither “exploitation of the prostitution of Neither “exploitation of the prostitution of others” nor “other forms of sexual exploitation” others” nor “other forms of sexual exploitation” is defined in the Palermo Protocol, partly due to is defined in the Palermo Protocol, partly due to the discussion taking place regarding the discussion taking place regarding prostitution and the possibility of prostitution prostitution and the possibility of prostitution not always amounting to exploitation.not always amounting to exploitation.

The Travaux Préparatoires mentions that the The Travaux Préparatoires mentions that the Protocol addresses the exploitation of Protocol addresses the exploitation of prostitution and other forms of sexual prostitution and other forms of sexual exploitation only in the context of trafficking in exploitation only in the context of trafficking in personspersons

Removal of OrgansRemoval of Organs

There is no definition of what constitute There is no definition of what constitute removal of organs, but the Travaux removal of organs, but the Travaux Préparatoires and the UNODC Legislative Préparatoires and the UNODC Legislative Guide explain that the removal of organs from Guide explain that the removal of organs from a child with the consent of a parent or guardian a child with the consent of a parent or guardian for legitimate medical or therapeutic reasons is for legitimate medical or therapeutic reasons is out of the scope of the Protocol. out of the scope of the Protocol.

Women and ChildrenWomen and Children

Admittedly, looking at the numbers reported, Admittedly, looking at the numbers reported, trafficking in women and children is a big trafficking in women and children is a big problem, but the prominent focus on the problem, but the prominent focus on the trafficking of women over men arguably has trafficking of women over men arguably has links to assumptions about gender and, in links to assumptions about gender and, in particular, a generalized notion of female particular, a generalized notion of female vulnerability. That is, many female migrants are vulnerability. That is, many female migrants are conceptualized as trafficked while male migrants conceptualized as trafficked while male migrants are seen more commonly as irregular migrants.are seen more commonly as irregular migrants.

This notion may to some extent at least also This notion may to some extent at least also influence statistics. And yet there are influence statistics. And yet there are significant signals in many countries and significant signals in many countries and regions that male migrants are also severely regions that male migrants are also severely exploited and violated in ways that constitute exploited and violated in ways that constitute human traffickinghuman trafficking

Most identified human trafficking victims have been Most identified human trafficking victims have been women and children who seem to be particularly women and children who seem to be particularly vulnerable to sexual exploitation and the vulnerable to sexual exploitation and the identification of male victims who might be expected identification of male victims who might be expected to be trafficked for forced labour purposes has not to be trafficked for forced labour purposes has not been successful in many countries.been successful in many countries.

Far fewer sources have identified either male victims Far fewer sources have identified either male victims or victims who have been subjected to forced labour, or victims who have been subjected to forced labour, when the popular perception, at least, is that it is men when the popular perception, at least, is that it is men especially who might be expected to be trafficked for especially who might be expected to be trafficked for forced labour purposes.forced labour purposes.

One reason for the low numbers of reported One reason for the low numbers of reported cases involving forced labour and male victims cases involving forced labour and male victims is connected to trafficking legislation which, in is connected to trafficking legislation which, in many countries, is restricted only to sexual many countries, is restricted only to sexual exploitation. exploitation.

The focus on women and children obviously is The focus on women and children obviously is funded in three main factors:funded in three main factors:

that these two groups are considered more that these two groups are considered more vulnerable in general; vulnerable in general;

that statistics underpin the need for this focus; that statistics underpin the need for this focus; that trafficking is often linked to sexual that trafficking is often linked to sexual

exploitation even if trafficking is actually also exploitation even if trafficking is actually also for other forms of exploitation. for other forms of exploitation.

There is a concrete and urgent need to protect There is a concrete and urgent need to protect these two groups of victims, it is important not these two groups of victims, it is important not to create an invisible group of trafficked to create an invisible group of trafficked persons – both in reality and in research.persons – both in reality and in research.

Palermo Protocol Palermo Protocol ContinuedContinued

The Protocol gives, for the first time, a detailed and The Protocol gives, for the first time, a detailed and comprehensive definition of trafficking. comprehensive definition of trafficking.

The Protocol applies to all people, but particularly women and The Protocol applies to all people, but particularly women and children, since Member States have recognized their specific children, since Member States have recognized their specific vulnerability. vulnerability.

It offers tools in order to empower law enforcement and It offers tools in order to empower law enforcement and strengthen border control,strengthen border control,

The Protocol integrates this by also strengthening the response The Protocol integrates this by also strengthening the response of the judiciary of the judiciary

The main goal is to catch and prosecute the trafficker, yet at The main goal is to catch and prosecute the trafficker, yet at the same time protect the victim. Assistance to victims is the same time protect the victim. Assistance to victims is crucial to law enforcement, since he/she can provide for the crucial to law enforcement, since he/she can provide for the evidence necessary to successfully prosecute the trafficker. evidence necessary to successfully prosecute the trafficker.

Scope of the ProtocolScope of the Protocol

To prevent and combat trafficking in personsTo prevent and combat trafficking in persons To protect and assist victimsTo protect and assist victims To respect the Human Rights of VictimsTo respect the Human Rights of Victims To prevent, investigate and prosecuteTo prevent, investigate and prosecute To promote cooperationTo promote cooperation

Criminal Law

Is criminal law and human rights law linked?Is criminal law and human rights law linked? Rule of lawRule of law ProtectionProtection ProsecutionProsecution Wictims/witness rightsWictims/witness rights

Trafficking and smuggling are criminal justice Trafficking and smuggling are criminal justice issues. They affect territorial integrity because issues. They affect territorial integrity because they involve the facilitation of crossing of they involve the facilitation of crossing of borders and remaining in a State in violation of borders and remaining in a State in violation of national criminal and immigration laws.national criminal and immigration laws.

Trafficking and smuggling also undermine the Trafficking and smuggling also undermine the rule of law and political foundation of States, rule of law and political foundation of States, because traffickers and smugglers such as because traffickers and smugglers such as organised criminal groups resort to violence organised criminal groups resort to violence and corruption as means to advance their and corruption as means to advance their business.business.

The act of trafficking and the exploitation of The act of trafficking and the exploitation of their labour expose victims to a variety of their labour expose victims to a variety of criminal acts including deprivation of liberty, criminal acts including deprivation of liberty, theft of identity documents, sexual, physical theft of identity documents, sexual, physical and psychological abuse and blackmail and psychological abuse and blackmail (threats to inform relatives or police about the (threats to inform relatives or police about the victims’ activity).victims’ activity).

Trafficking is itself a breach of the laws of Trafficking is itself a breach of the laws of many, if not most, states.many, if not most, states.

The lack of specific legislation against The lack of specific legislation against trafficking in persons is arguably the most trafficking in persons is arguably the most serious obstacle in countering the crime. In the serious obstacle in countering the crime. In the absence of legislation, it is very difficult to absence of legislation, it is very difficult to punish human trafficking and bring the punish human trafficking and bring the traffickers to justice. However, even where traffickers to justice. However, even where provisions against trafficking in persons exist provisions against trafficking in persons exist under national law, these often cover only under national law, these often cover only parts of the crime in trafficking in persons as parts of the crime in trafficking in persons as defined in the UN Protocol. defined in the UN Protocol.

Offenders

Article 2 and 3 of the TOC determines who Article 2 and 3 of the TOC determines who can be prosecuted:can be prosecuted:

2(a) Organized criminal group shall mean a 2(a) Organized criminal group shall mean a structured group of three or more persons, structured group of three or more persons, existing for a period of time and acting in existing for a period of time and acting in concert with the aim of committing one or concert with the aim of committing one or more serious crimes or offences established more serious crimes or offences established [by] the Convention [or Trafficking Protocol], [by] the Convention [or Trafficking Protocol], in order to obtain, directly or indirectly, a in order to obtain, directly or indirectly, a financial or other material benefit. financial or other material benefit.

An offence is transnational in nature if: (a) It is An offence is transnational in nature if: (a) It is committed in more than one State; (b) It is committed in more than one State; (b) It is committed in one State but a substantial part of committed in one State but a substantial part of its preparation, planning, directing or control its preparation, planning, directing or control takes place in another State; (c) It is committed takes place in another State; (c) It is committed in one State but involves an organized criminal in one State but involves an organized criminal group that engages in criminal activities in group that engages in criminal activities in more than one State; or (d) It is committed in more than one State; or (d) It is committed in one State but has substantial effects in another one State but has substantial effects in another State.State.

Internal Trafficking

Discussion as to whether the Protocol is Discussion as to whether the Protocol is applicable to internal trafficking since it does applicable to internal trafficking since it does not – contrary to the Smuggling Protocol – not – contrary to the Smuggling Protocol – mention borders in its definition. During the mention borders in its definition. During the drafting stage of the Protocol, a discussion drafting stage of the Protocol, a discussion arose as to whether or not trafficking should be arose as to whether or not trafficking should be confined to international movements. All confined to international movements. All drafts of the Protocol refer to “international drafts of the Protocol refer to “international trafficking”trafficking”

It has however to be taken into consideration It has however to be taken into consideration that the Protocol is a protocol to the that the Protocol is a protocol to the Convention on International Organised Crime Convention on International Organised Crime and therefore cannot be seen outside the scope and therefore cannot be seen outside the scope of this Convention. But the Convention and of this Convention. But the Convention and the Protocol must be interpreted together. the Protocol must be interpreted together.

Victim Victim CentredCentred Criminal Law Criminal Law ApproachApproach

A victim-centred criminal justice response to A victim-centred criminal justice response to trafficking is most effective in terms of trafficking is most effective in terms of achieving a successful prosecution of the achieving a successful prosecution of the traffickers and protecting and supporting the traffickers and protecting and supporting the human rights of the trafficked victim. human rights of the trafficked victim. Prioritising the well-being of the trafficked Prioritising the well-being of the trafficked victim and their recovery from a trafficking victim and their recovery from a trafficking ordeal is compatible with achieving the desired ordeal is compatible with achieving the desired results in a criminal prosecutionresults in a criminal prosecution..

Balance defence and prosecutor’s rights in trialBalance defence and prosecutor’s rights in trial

Related offences

Trafficking is often only one of the crimes Trafficking is often only one of the crimes committed against trafficked persons. Other committed against trafficked persons. Other crimes may be committed to ensure the crimes may be committed to ensure the compliance of victims, maintain control, compliance of victims, maintain control, protect trafficking operations or maximize protect trafficking operations or maximize profitsprofits

A crime against humanity?A crime against humanity?

ICC Statute Article 7(2)(c) defined ICC Statute Article 7(2)(c) defined enslavement as “the exercise of any or all of enslavement as “the exercise of any or all of the powers attaching to the right of ownership the powers attaching to the right of ownership over a person and includes the exercise of such over a person and includes the exercise of such powers in the course of trafficking in persons, powers in the course of trafficking in persons, in particular women and children”. in particular women and children”.

Human Rights LawHuman Rights Law

Human rights issues are not only a concern Human rights issues are not only a concern upon arrival of the trafficked person but also upon arrival of the trafficked person but also during the transportation. Instances of torture, during the transportation. Instances of torture, inhuman and degrading treatment are common inhuman and degrading treatment are common during the process and many traffickers as during the process and many traffickers as well as smugglers and in some cases border well as smugglers and in some cases border officials may use physical or sexual violence officials may use physical or sexual violence as a means to demand payment for their as a means to demand payment for their servicesservices

Upon arrival restriction of movement, work Upon arrival restriction of movement, work conditions, consequences of racisms and law conditions, consequences of racisms and law enforcement practices such as detention enforcement practices such as detention centres, repatriation and rights linked to legal centres, repatriation and rights linked to legal processes are some of the issues with a human processes are some of the issues with a human rights aspect in the trafficking contextrights aspect in the trafficking context

Palermo Protocol on HRPalermo Protocol on HR

Article 6.2 states thatArticle 6.2 states that Each State Party shall ensure Each State Party shall ensure that its domestic legal or administrative system that its domestic legal or administrative system contains measures that provide to victims of contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative Information on relevant court and administrative proceedings; (b) Assistance to enable their views proceedings; (b) Assistance to enable their views and concerns to be presented and considered at and concerns to be presented and considered at appropriate stages of criminal proceedings against appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights offenders, in a manner not prejudicial to the rights of the defence.of the defence.

art. 6.3 requires that states consider implementing art. 6.3 requires that states consider implementing measures to provide for the “measures to provide for the “physical, psychological physical, psychological and social recovery of victims of trafficking in and social recovery of victims of trafficking in persons (…) in particular the provision of: persons (…) in particular the provision of:

(a) Appropriate housing, (b) (a) Appropriate housing, (b) Counselling and Counselling and information, in particular as regards their legal information, in particular as regards their legal rights (…)rights (…) (c) medical, psychological and material (c) medical, psychological and material assistance; and (d) employment, education and assistance; and (d) employment, education and training opportunities.training opportunities.

Four years after the adoption of the Protocol Four years after the adoption of the Protocol the Legislative Guide intervened on the the Legislative Guide intervened on the discretionary character of many of the discretionary character of many of the provisions dealing with the protection of provisions dealing with the protection of victims and clarified the issue of some of these victims and clarified the issue of some of these measures being mandatory while others are measures being mandatory while others are only optional. only optional.

The Protocol's comprehensive prevention The Protocol's comprehensive prevention policy also includes activities to prevent re-policy also includes activities to prevent re-victimization, research, information victimization, research, information campaigns, social and economic initiatives, campaigns, social and economic initiatives, and cooperation with civil societyand cooperation with civil society

Article 6, paragraph 4, of the Article 6, paragraph 4, of the Trafficking in Persons Protocol Trafficking in Persons Protocol provides that States parties, in provides that States parties, in considering measures to assist and considering measures to assist and protect victims of trafficking, must protect victims of trafficking, must take into account the special needs take into account the special needs of child victims. of child victims.

Other Relevant InstrumentsOther Relevant Instruments• International Convention on the Elimination of all forms of Racist International Convention on the Elimination of all forms of Racist

Discrimination (1966)Discrimination (1966)

• International Convention on the Elimination of All form of Discrimination International Convention on the Elimination of All form of Discrimination Against Women (1979)Against Women (1979)

• The Convention on the Rights of the Child (1989)The Convention on the Rights of the Child (1989)• ILO Convention 182 on the Worst Forms of Child Labour (1999)ILO Convention 182 on the Worst Forms of Child Labour (1999)

• Convention on the Rights of All Migrant Workers and Their Families Convention on the Rights of All Migrant Workers and Their Families (1990)(1990)

• In some cases The UN Refugee Convention - 1951 In some cases The UN Refugee Convention - 1951

CEDAWCEDAW

• Article. 6: States Parties shall take all Article. 6: States Parties shall take all appropriate measures, including legislation, to appropriate measures, including legislation, to suppress all forms of traffic in women and suppress all forms of traffic in women and exploitation of prostitution of women. exploitation of prostitution of women.

• But also other articles not specifically on But also other articles not specifically on trafficking are relevant;trafficking are relevant;

CEDAWCEDAW

• Article 5: States Parties shall take all appropriate Article 5: States Parties shall take all appropriate measures: (a) To modify the social and cultural measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view patterns of conduct of men and women, with a view to achieving the elimination of prejudices and to achieving the elimination of prejudices and customary and all other practices which are based on customary and all other practices which are based on the idea of the inferiority or the superiority of either the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and of the sexes or on stereotyped roles for men and women; women;

• Equality in Education – article 10Equality in Education – article 10• Participation (art. 7) and non-discrimination in Participation (art. 7) and non-discrimination in

general (also article 14 on rural women)general (also article 14 on rural women)

CRCCRC

• Art 35 : “States Parties shall take all appropriate, Art 35 : “States Parties shall take all appropriate, national, bilateral and multilateral measures to national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in prevent the abduction of, the sale of or traffic in children for any purpose or in any form”children for any purpose or in any form”. .

• The article does not elaborate the terms but the words The article does not elaborate the terms but the words “for any purpose or in any form” suggest that it is to “for any purpose or in any form” suggest that it is to be interpreted broadly. be interpreted broadly.

• The responsibility for taking measures to avoid The responsibility for taking measures to avoid trafficking is placed clearly on the State, which trafficking is placed clearly on the State, which implies a State responsibility if it does not succeed in implies a State responsibility if it does not succeed in prosecuting offenders, thus making the international prosecuting offenders, thus making the international obligation applicable at the “trafficker-level”obligation applicable at the “trafficker-level”

Trafficking in children is a violation of a Trafficking in children is a violation of a number of rights: It is a violation of the child’s number of rights: It is a violation of the child’s right to education (Art. 28/29); to health (Art. right to education (Art. 28/29); to health (Art. 24); to family life (Art. 9); to leisure and play 24); to family life (Art. 9); to leisure and play (Art. 31); of the right to be protected against (Art. 31); of the right to be protected against exploitation (economic Art.32; sexual Art.34); exploitation (economic Art.32; sexual Art.34); the right to life Art 6.1 and to survival and the right to life Art 6.1 and to survival and development Art 6.2; the right to protection development Art 6.2; the right to protection from discrimination and punishment Art. 2.2 from discrimination and punishment Art. 2.2 and from physical and mental violence, Art 19; and from physical and mental violence, Art 19; and the right to participation and the right to participation

CRC OPIICRC OPII

• OP II Article 3, which provides that States Parties OP II Article 3, which provides that States Parties shall ensure the definition of the following acts as a shall ensure the definition of the following acts as a crime, irrespective of whether they are committed crime, irrespective of whether they are committed domestically or trans-nationally, on an individual or domestically or trans-nationally, on an individual or organised basis: organised basis: Offering, delivering or accepting, by Offering, delivering or accepting, by whatever means, a child for the purpose of Sexual whatever means, a child for the purpose of Sexual exploitation of the child; Transfer of organs of the exploitation of the child; Transfer of organs of the child for profit; Engagement of the child in forced child for profit; Engagement of the child in forced labour.labour.

UN Migrant Worker ConventionUN Migrant Worker Convention

• Art. 68 obliges States Parties to collaborate for Art. 68 obliges States Parties to collaborate for the purpose of preventing and eliminating the purpose of preventing and eliminating illegal or clandestine movements as well as the illegal or clandestine movements as well as the employment of migrants who are in an employment of migrants who are in an irregular situationirregular situation

• The Convention protects migrants in the entire The Convention protects migrants in the entire migration processmigration process

ICCPR and ICESCRICCPR and ICESCR

The two major general Human Rights The two major general Human Rights Instrument are also valid for victims of Instrument are also valid for victims of traffickingtrafficking

Trafficking is also about protecting from Trafficking is also about protecting from victimisation in the county of originvictimisation in the county of origin

Respect for human rights is needed both in Respect for human rights is needed both in countries of origin and in countries of countries of origin and in countries of destination and transitdestination and transit

Protocol GapsProtocol Gaps

IdentificationIdentification Non punishment of victims for illegal Non punishment of victims for illegal

activityactivity Residence/reflection periodResidence/reflection period

The United Nations High Commissioner The United Nations High Commissioner for Human Rights has developed for Human Rights has developed Recommended Principles and Recommended Principles and Guidelines on Human Rights and Guidelines on Human Rights and Human Trafficking (E/2002/68/Add.1), Human Trafficking (E/2002/68/Add.1), which provide an important framework which provide an important framework guiding the criminalization of trafficking guiding the criminalization of trafficking in persons and the development of a in persons and the development of a legislative framework.legislative framework.

PreventionPrevention

Need to focus on human rights in Need to focus on human rights in generalgeneral

DiscriminationDiscrimination Migraton policiesMigraton policies Push and pull factorsPush and pull factors

Third partiesThird parties the state is not usually involved in the acts the state is not usually involved in the acts

carried out by traffickers, although it may be carried out by traffickers, although it may be through the activity of corrupt law enforcement through the activity of corrupt law enforcement and border officials who facilitate or ignore the and border officials who facilitate or ignore the work of traffickers. This may occur in origin, work of traffickers. This may occur in origin, transit and destination state. The primary threat transit and destination state. The primary threat to victims however is clearly one of criminal acts to victims however is clearly one of criminal acts at the hands of private persons and such acts are at the hands of private persons and such acts are not necessarily human rights violations on the not necessarily human rights violations on the part of a state.part of a state.

States have an obligation to protect horizontally States have an obligation to protect horizontally – by having adequate laws, processes, – by having adequate laws, processes, punishments for the crime of trafficking (as for punishments for the crime of trafficking (as for other crimes that affect the human rights of other crimes that affect the human rights of individuals). A failure in the context of individuals). A failure in the context of trafficking by the state to protect and to impose trafficking by the state to protect and to impose that trafficking cannot flourish unchecked may that trafficking cannot flourish unchecked may be considered a failure to fulfil the obligation to be considered a failure to fulfil the obligation to protect against human rights abuse.protect against human rights abuse.

RespectRespect Protect/ensureProtect/ensure FacilitateFacilitate FulfillFulfill Examples: the right to life, the right to political Examples: the right to life, the right to political

participation, the right to workparticipation, the right to work

The CoE Convention on Action Against The CoE Convention on Action Against Trafficking in Human Beings refers to Trafficking in Human Beings refers to trafficking as a “violation of human rights and trafficking as a “violation of human rights and an offence of the dignity and the integrity of an offence of the dignity and the integrity of the human being”the human being”

Horizontal application does not necessarily Horizontal application does not necessarily mean that the state is in breach of its human mean that the state is in breach of its human rights obligations just because a person has rights obligations just because a person has been trafficked. There must also be some been trafficked. There must also be some failure on the part of the state to secure the failure on the part of the state to secure the rights and freedoms guaranteed. rights and freedoms guaranteed.

ProtectProtect Prosecute/Investigate – Velasquez Rodiguez v. Prosecute/Investigate – Velasquez Rodiguez v.

Honduras (Interamerican Court) – and in Honduras (Interamerican Court) – and in Assenouv and Others v. Bulgaria the European Assenouv and Others v. Bulgaria the European Court of Human Rights held that States have a Court of Human Rights held that States have a positive duty to investigate cases involving a positive duty to investigate cases involving a breach of Art 3 (prohibition of torture and ill breach of Art 3 (prohibition of torture and ill treatment), in line with the duty to “Secure” treatment), in line with the duty to “Secure” rights and freedoms to all persons in their rights and freedoms to all persons in their jurisdictionjurisdiction

Victims/witness

The role of witnesses and the evidence they The role of witnesses and the evidence they provide in criminal proceedings is often provide in criminal proceedings is often crucial in securing the conviction of offenders, crucial in securing the conviction of offenders, especially in respect of organized crime such especially in respect of organized crime such as human trafficking. This tool presents the as human trafficking. This tool presents the provisions of the Organized Crime Convention provisions of the Organized Crime Convention relating to the protection of witnesses (art. 24) relating to the protection of witnesses (art. 24) and obstruction of justice (art. 23, subpara. and obstruction of justice (art. 23, subpara. (a)).(a)).

“Soft” trafficking

Retention of passportsRetention of passports Confinement at the workplaceConfinement at the workplace Control over contacts with the outside worldControl over contacts with the outside world Long working houes of up to 60-70 h/wLong working houes of up to 60-70 h/w One day off per week, working holidays One day off per week, working holidays

without overtimewithout overtime

ConclusionsConclusions

Concept is NOT a human rights concept Concept is NOT a human rights concept A CRIMINAL law concept with a human A CRIMINAL law concept with a human

rights aspectrights aspect Human rights must be included and the two Human rights must be included and the two

fields of law interact and overlap – as does fields of law interact and overlap – as does other fields of law (migration, labour, social other fields of law (migration, labour, social welfare)welfare)

THANK THANK YOU!YOU!