Smuggling and Trafficking in
Human Beings – the
international legal framework
Kristina Touzenis.
IOM-UNITAR
UN HQ
NYC
June 2011
Why prevent irregular migration?
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to avoid exploitation of irregular migrants by employers,
smugglers and traffickers
to prevent the existence of a marginalised group in society
thus contributing to social cohesion and stability
to ensure that migration is “managed” and the credibility
of legal immigration policies
to ensure satisfactory salary levels and working conditions
for national workers and lawfully resident migrant
workers, which are undermined by the employment of
irregular migrants
to avoid the existence of whole sectors /businesses
dependent on irregular migrant labour
International responses: a brief
chronology
 1970s
 UN Resolutions against migrant smuggling /trafficking
 ILO Convention No. 143 of 1975
 1980s - 1990
 UN Migrant Workers Convention drafted (adopted 18
December 1990; entry into force 1 July 2003)
 2000
 UN International Convention against Transnational
Organised Crime and Palermo Protocols
United Nations Convention Against
Transnational Organized Crime, 2000
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Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children (2000)
Protocol Against the Smuggling of Migrants
by Land, Sea and Air (2000)
The Causes of smuggling
• Poverty, unemployment, and lack of opportunities
• Political and humanitarian crises
• In many less developed regions of the world, children
are entrusted to more affluent friends or
acquaintances with the intention to improve their
lives and relieve their families of economic burden
• Demand for inexpensive labour
• Restrictive immigration policies in traditional
countries of destination
• Criminal networks and transnational organized crime
The Smuggling process
Transfer
Agreement with the smuggler
(consent)
Destination
BORDER
SMUGGLING
END OF RELATION WITH
SMUGGLER
(Eventual Transit Country)
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Trafficking is …
A Crime against the Individual
•
Smuggling is…
A Crime against the State
The Concept
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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 reach
networks of service providers to help in various stages of the
operationsinfluence on government officials at many levels
access to large sums of money at many locations
ties with other criminal enterprises
the ability to shift areas of operation according to "market"
conditions
an association with persons capable of violence within their
networks
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(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;
Article 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR
Scope of the Protocol
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To prevent and combat smuggling in persons
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To respect the Human Rights of smuggled
migrants
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Investigation and prosecution
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To promote cooperation
Requires States to:
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Criminalise smuggling
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Co-operate to prevent smuggling
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Strengthen border controls to detect smuggling
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Address root causes
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Appropriate measures to “preserve and protect” rights
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Cooperate in return
Non-criminalisation of migrants
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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
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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:
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(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.
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(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.
Cont.
• Participating as an accomplice in an offence
(…)
• Organizing or directing other persons to
commit an offence
Aggravating Circumstances
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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:
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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)
Protection
• 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.
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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.
Return
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1.
Return of smuggled migrants
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 Causes
Each 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 Trafficking
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Slavery Convention 1926
Convention Concerning Forced or Compulsory
Labour 1930
Convention for the Supression of Trafficking
in Persons and the exploitation of the
Prostitution of Others 1949
UN Convention Against Transnational
Organized Crime + Protocols (entered into
force in 2003)
Trafficking – UN Protocol
Trafficking in Persons:
• The recruitment, transportation, transfer, harboring or receipt
of persons, by means of threat, use of force or other means of
coercion, 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 a person having control over another
person, for the purpose of exploitation.
• Exploitation shall include, at a minimum, the exploitation of
the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.
(UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially
Women and Children)
The Trafficking process
Recruitment
Transfer
EXPLOITATION
EXPLOITATION
COERCION
DECEPTION
ABUSE OF POWER
Place of Origin
Place of Destination
Concept of trafficking
Concept of trafficking:
- movement of a person
- for the purpose of
exploitation
- organised by a trafficker
movement
exploitation
organised
by a trafficker
trafficking
Consent
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The consent of a victim of trafficking in persons to
the exploitation shall be irrelevant where any of the
means of force, threat of, coercion, deception, have
been used.
The recruitment, transportation, transfer, harbouring
or receipt of a child for the purpose of exploitation
shall be considered ”trafficking in persons” even if
this does not involve any of the means set forth in the
definition of trafficking in persons.
- agency
Force and coercion
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There is always a point in the trafficking chain at
which people are subjected to force or coercion: when
they are recruited, during transportation, upon entry
or during work.
Both overt and subtle forms of coercion are used,
such as the confiscation of papers, non-payment of
wages, induced indebtedness or threats to denounce
irregular migrant workers to authorities if they refuse
to accept the working conditions.
Fraud, deception, abuse of power
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It is absolutely irrelevant if the victim
apparently voluntarily entered or stayed in a
situation or conditions of labour exploitation if
they were put in that situation through the use
of threats, force, coercion, abduction,
deception or fraud or by an abuse of power or
an abuse of their own position of vulnerability.
Most of these concepts will already be clear in
national law however coercion and abuse of
power/vulnerability are unlikely to be
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The “abuse of a power or of a position of
vulnerability” contained in Article 3 of the
Protocol is understood to refer to any situation
in which the person involved has no real and
acceptable alternative but to submit to the
abuse involved.
Exploitation
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The Protocol makes reference to some specific
forms of exploitation; however the list is not
exhaustive and it may include other forms as
well. The choice made was to extend as much
as possible the definition of trafficking in
persons to include any possible – known or
still unknown – form of exploitation.
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The Protocol does not define any of the
mentioned forms of exploitation related to
forced labour. But a definition for each of
them can be found in the relevant international
convention.
Article 2, paragraph 1 of ILO Forced Labour
Convention, 1930 (No. 29) defines forced
labour as “all work or service which is exacted
from any person under the menace of any
penalty and for which the said person has not
offered himself voluntarily”.
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The concept of forced labour as defined by
ILO Convention 29 comprises three basic
elements:
a. the activity exacted must be in the form of
work or service;
b. the menace of a penalty
c. it is undertaken involuntarily by the
victim
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Penal law often does not place the emphasis on
coercion, and often have rather subjective
criteria as to what constitutes forced labour.
. It is however important to underline that
simply poor working conditions do not alone
constitute forced labour, there must be an
element of intention to exploit.
with the Protocol the focus was broadened and
so was the understanding of what forced
labour is – now it is shown that 80% of forced
labour is in the private sector.
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Trafficking violates the most basic rights of
any person in relation to a work situation – the
freedom from coercion at work, the freedom to
set up associations and bargain collectively,
and the freedom from discrimination at work.
Further trafficking of children has been
defined by the ILO as one of the worst forms
of child labour, which seriously harms the
development of the child.
Slavery and servitude
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The 1957 Supplementary Convention on the
Elimination of Slavery, Slave Trade, and
Institutions and Practice Similar to Slavery
defines Slavery as “the status or condition of a
person over whom any or all of the powers
attaching to the rights of ownership are
exercised”
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The Supplementary Convention, art. 1(c) defines
marriage as a form of slavery in certain cases. “Any
institution or practice, whereby (i) a woman, without
the right to refuse, is promised or given in marriage
on payment of a consideration in money or in kind to
her parents, guardian, family or any other person or
guys, (ii) the husband of a woman, his family, or his
clan has the right to transfer her to another person for
value received or otherwise, or (iii) a woman on the
death of her husband is liable to be inherited by
another person”
Prosecutor v. Kunarac
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The ICTY elaborated on the meaning of slavery and
enslavement noting that a mere ability, among others,
to buy, sell or trade people, although an important
factor to be taken into consideration, is in itself
insufficient in determining whether or not the
enslavement is committed.
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Trafficking may then be treated as slavery
simultaneously mainly when people are
exploited afterwards by the traffickers
themselves – or the same organisation – as this
ensures the continuous exercise of the right of
ownership. The duration of the suspected
exercise of powers attaching to the right of
ownership is another factor that may be
considered when determining whether
someone was enslaved.
Sexual exploitation
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In 1949 the Convention for the Suppression of
the Traffic in Persons and the Exploitation of
the Prostitution of Others was adopted.
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Neither “exploitation of the prostitution of
others” nor “other forms of sexual
exploitation” is defined in the Palermo
Protocol, partly due to the discussion taking
place regarding prostitution and the possibility
of prostitution not always amounting to
exploitation.
The Travaux Préparatoires mentions that the
Protocol addresses the exploitation of
prostitution and other forms of sexual
exploitation only in the context of trafficking
in persons
Removal of Organs
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There is no definition of what constitute
removal of organs, but the Travaux
Préparatoires and the UNODC Legislative
Guide explain that the removal of organs from
a child with the consent of a parent or guardian
for legitimate medical or therapeutic reasons is
out of the scope of the Protocol.
Women and Children
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Admittedly, looking at the numbers reported,
trafficking in women and children is a big
problem, but the prominent focus on the
trafficking of women over men arguably has
links to assumptions about gender and, in
particular, a generalized notion of female
vulnerability. That is, many female migrants
are conceptualized as trafficked while male
migrants are seen more commonly as irregular
migrants.
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This notion may to some extent at least also
influence statistics. And yet there are
significant signals in many countries and
regions that male migrants are also severely
exploited and violated in ways that constitute
human trafficking
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Most identified human trafficking victims have been
women and children who seem to be particularly
vulnerable to sexual exploitation and the
identification of male victims who might be expected
to be trafficked for forced labour purposes has not
been successful in many countries.
Far fewer sources have identified either male victims
or victims who have been subjected to forced labour,
when the popular perception, at least, is that it is men
especially who might be expected to be trafficked for
forced labour purposes.
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One reason for the low numbers of reported
cases involving forced labour and male victims
is connected to trafficking legislation which, in
many countries, is restricted only to sexual
exploitation.
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The focus on women and children obviously is
funded in three main factors:
that these two groups are considered more
vulnerable in general;
that statistics underpin the need for this focus;
that trafficking is often linked to sexual
exploitation even if trafficking is actually also
for other forms of exploitation.
There is a concrete and urgent need to protect
these two groups of victims, it is important not
to create an invisible group of trafficked
persons – both in reality and in research.
Palermo Protocol Continued
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The Protocol gives, for the first time, a detailed and
comprehensive definition of trafficking.
The Protocol applies to all people, but particularly women and
children, since Member States have recognized their specific
vulnerability.
It offers tools in order to empower law enforcement and
strengthen border control,
The Protocol integrates this by also strengthening the response
of the judiciary
The main goal is to catch and prosecute the trafficker, yet at
the same time protect the victim. Assistance to victims is
crucial to law enforcement, since he/she can provide for the
evidence necessary to successfully prosecute the trafficker.
Scope of the Protocol
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To prevent and combat trafficking in persons
To protect and assist victims
To respect the Human Rights of Victims
To prevent, investigate and prosecute
To promote cooperation
Criminal Law
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Is criminal law and human rights law linked?
Rule of law
Protection
Prosecution
Wictims/witness rights
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Trafficking and smuggling are criminal justice
issues. They affect territorial integrity because
they involve the facilitation of crossing of
borders and remaining in a State in violation of
national criminal and immigration laws.
Trafficking and smuggling also undermine the
rule of law and political foundation of States,
because traffickers and smugglers such as
organised criminal groups resort to violence
and corruption as means to advance their
business.
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The act of trafficking and the exploitation of
their labour expose victims to a variety of
criminal acts including deprivation of liberty,
theft of identity documents, sexual, physical
and psychological abuse and blackmail (threats
to inform relatives or police about the victims’
activity).
Trafficking is itself a breach of the laws of
many, if not most, states.
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The lack of specific legislation against
trafficking in persons is arguably the most
serious obstacle in countering the crime. In the
absence of legislation, it is very difficult to
punish human trafficking and bring the
traffickers to justice. However, even where
provisions against trafficking in persons exist
under national law, these often cover only
parts of the crime in trafficking in persons as
defined in the UN Protocol.
Offenders
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Article 2 and 3 of the TOC determines who
can be prosecuted:
2(a) Organized criminal group shall mean a
structured group of three or more persons,
existing for a period of time and acting in
concert with the aim of committing one or
more serious crimes or offences established
[by] the Convention [or Trafficking Protocol],
in order to obtain, directly or indirectly, a
financial or other material benefit.
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An offence is transnational in nature if: (a) It is
committed in more than one State; (b) It is
committed in one State but a substantial part of
its preparation, planning, directing or control
takes place in another State; (c) It is committed
in one State but involves an organized criminal
group that engages in criminal activities in
more than one State; or (d) It is committed in
one State but has substantial effects in another
State.
Internal Trafficking
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Discussion as to whether the Protocol is
applicable to internal trafficking since it does
not – contrary to the Smuggling Protocol –
mention borders in its definition. During the
drafting stage of the Protocol, a discussion
arose as to whether or not trafficking should be
confined to international movements. All
drafts of the Protocol refer to “international
trafficking”
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It has however to be taken into consideration
that the Protocol is a protocol to the
Convention on International Organised Crime
and therefore cannot be seen outside the scope
of this Convention. But the Convention and the
Protocol must be interpreted together.
Victim Centred Criminal Law
Approach
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A victim-centred criminal justice response to
trafficking is most effective in terms of
achieving a successful prosecution of the
traffickers and protecting and supporting the
human rights of the trafficked victim.
Prioritising the well-being of the trafficked
victim and their recovery from a trafficking
ordeal is compatible with achieving the desired
results in a criminal prosecution.
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Balance defence and prosecutor’s rights in trial
Related offences
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Trafficking is often only one of the crimes
committed against trafficked persons. Other
crimes may be committed to ensure the
compliance of victims, maintain control,
protect trafficking operations or maximize
profits
A crime against humanity?
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ICC Statute Article 7(2)(c) defined
enslavement as “the exercise of any or all of
the powers attaching to the right of ownership
over a person and includes the exercise of such
powers in the course of trafficking in persons,
in particular women and children”.
Human Rights Law
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Human rights issues are not only a concern
upon arrival of the trafficked person but also
during the transportation. Instances of torture,
inhuman and degrading treatment are common
during the process and many traffickers as well
as smugglers and in some cases border
officials may use physical or sexual violence
as a means to demand payment for their
services
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Upon arrival restriction of movement, work
conditions, consequences of racisms and law
enforcement practices such as detention
centres, repatriation and rights linked to legal
processes are some of the issues with a human
rights aspect in the trafficking context
Palermo Protocol on HR
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Article 6.2 states that Each State Party shall
ensure that its domestic legal or administrative
system contains measures that provide to
victims of trafficking in persons, in appropriate
cases: (a) Information on relevant court and
administrative proceedings; (b) Assistance to
enable their views and concerns to be
presented and considered at appropriate stages
of criminal proceedings against offenders, in a
manner not prejudicial to the rights of the
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art. 6.3 requires that states consider implementing
measures to provide for the “physical, psychological
and social recovery of victims of trafficking in
persons (…) in particular the provision of:
(a) Appropriate housing, (b) Counselling and
information, in particular as regards their legal
rights (…) (c) medical, psychological and material
assistance; and (d) employment, education and
training opportunities.
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Four years after the adoption of the Protocol
the Legislative Guide intervened on the
discretionary character of many of the
provisions dealing with the protection of
victims and clarified the issue of some of these
measures being mandatory while others are
only optional.
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The Protocol's comprehensive prevention
policy also includes activities to prevent revictimization, research, information
campaigns, social and economic initiatives,
and cooperation with civil society
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Article 6, paragraph 4, of the Trafficking in
Persons Protocol provides that States
parties, in considering measures to assist
and protect victims of trafficking, must
take into account the special needs of
child victims.
Other Relevant Instruments
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International Convention on the Elimination of all forms of Racist
Discrimination (1966)
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International Convention on the Elimination of All form of Discrimination
Against Women (1979)
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The Convention on the Rights of the Child (1989)
ILO Convention 182 on the Worst Forms of Child Labour (1999)
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Convention on the Rights of All Migrant Workers and Their Families
(1990)
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In some cases The UN Refugee Convention - 1951
CEDAW
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Article. 6: States Parties shall take all
appropriate measures, including legislation, to
suppress all forms of traffic in women and
exploitation of prostitution of women.
But also other articles not specifically on
trafficking are relevant;
CEDAW
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Article 5: States Parties shall take all appropriate
measures: (a) To modify the social and cultural
patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and
customary and all other practices which are based on
the idea of the inferiority or the superiority of either
of the sexes or on stereotyped roles for men and
women;
Equality in Education – article 10
Participation (art. 7) and non-discrimination in
general (also article 14 on rural women)
CRC
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Art 35 : “States Parties shall take all appropriate,
national, bilateral and multilateral measures to
prevent the abduction of, the sale of or traffic in
children for any purpose or in any form”.
The article does not elaborate the terms but the words
“for any purpose or in any form” suggest that it is to
be interpreted broadly.
The responsibility for taking measures to avoid
trafficking is placed clearly on the State, which
implies a State responsibility if it does not succeed in
prosecuting offenders, thus making the international
obligation applicable at the “trafficker-level”
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Trafficking in children is a violation of a
number of rights: It is a violation of the child’s
right to education (Art. 28/29); to health (Art.
24); to family life (Art. 9); to leisure and play
(Art. 31); of the right to be protected against
exploitation (economic Art.32; sexual Art.34);
the right to life Art 6.1 and to survival and
development Art 6.2; the right to protection
from discrimination and punishment Art. 2.2
and from physical and mental violence, Art 19;
and the right to participation
CRC OPII
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OP II Article 3, which provides that States Parties
shall ensure the definition of the following acts as a
crime, irrespective of whether they are committed
domestically or trans-nationally, on an individual or
organised basis: Offering, delivering or accepting, by
whatever means, a child for the purpose of Sexual
exploitation of the child; Transfer of organs of the
child for profit; Engagement of the child in forced
labour.
UN Migrant Worker Convention
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Art. 68 obliges States Parties to collaborate for
the purpose of preventing and eliminating
illegal or clandestine movements as well as the
employment of migrants who are in an
irregular situation
The Convention protects migrants in the entire
migration process
ICCPR and ICESCR
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The two major general Human Rights
Instrument are also valid for victims of
trafficking
Trafficking is also about protecting from
victimisation in the county of origin
Respect for human rights is needed both in
countries of origin and in countries of
destination and transit
Protocol Gaps
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Identification
Non punishment of victims for illegal
activity
Residence/reflection period
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The United Nations High Commissioner for
Human Rights has developed
Recommended Principles and Guidelines
on Human Rights and Human Trafficking
(E/2002/68/Add.1), which provide an
important framework guiding the
criminalization of trafficking in persons
and the development of a legislative
framework.
Prevention
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Need to focus on human rights in general
Discrimination
Migraton policies
Push and pull factors
Third parties
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the state is not usually involved in the acts
carried out by traffickers, although it may be
through the activity of corrupt law
enforcement and border officials who facilitate
or ignore the work of traffickers. This may
occur in origin, transit and destination state.
The primary threat to victims however is
clearly one of criminal acts at the hands of
private persons and such acts are not
necessarily human rights violations on the part
of a state.
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States have an obligation to protect
horizontally – by having adequate laws,
processes, punishments for the crime of
trafficking (as for other crimes that affect the
human rights of individuals). A failure in the
context of trafficking by the state to protect
and to impose that trafficking cannot flourish
unchecked may be considered a failure to fulfil
the obligation to protect against human rights
abuse.
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Respect
Protect/ensure
Facilitate
Fulfill
Examples: the right to life, the right to political
participation, the right to work
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The CoE Convention on Action Against
Trafficking in Human Beings refers to
trafficking as a “violation of human rights and
an offence of the dignity and the integrity of
the human being”

Horizontal application does not necessarily
mean that the state is in breach of its human
rights obligations just because a person has
been trafficked. There must also be some
failure on the part of the state to secure the
rights and freedoms guaranteed.


Protect
Prosecute/Investigate – Velasquez Rodiguez v.
Honduras (Interamerican Court) – and in
Assenouv and Others v. Bulgaria the European
Court of Human Rights held that States have a
positive duty to investigate cases involving a
breach of Art 3 (prohibition of torture and ill
treatment), in line with the duty to “Secure”
rights and freedoms to all persons in their
jurisdiction
Victims/witness

The role of witnesses and the evidence they
provide in criminal proceedings is often crucial
in securing the conviction of offenders,
especially in respect of organized crime such
as human trafficking. This tool presents the
provisions of the Organized Crime Convention
relating to the protection of witnesses (art. 24)
and obstruction of justice (art. 23, subpara.
(a)).
“Soft” trafficking




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Retention of passports
Confinement at the workplace
Control over contacts with the outside world
Long working houes of up to 60-70 h/w
One day off per week, working holidays
without overtime
Conclusions



Concept is NOT a human rights concept
A CRIMINAL law concept with a human
rights aspect
Human rights must be included and the two
fields of law interact and overlap – as does
other fields of law (migration, labour, social
welfare)
THANK
YOU!