Introduction to Human
Trafficking
Deslie Billich
Iowa, January 2016
Protocols
• In October 2000 the Ad Hoc Committee on the
Elaboration of United Nations Convention against
Transnational Organized Crime approved the draft
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children
• The Ad Hoc Committee also finalised the draft protocol
against Smuggling of Migrants by Land, Sea and Air.
• They were signed at the High-level Political Signing
Conference in Palermo, Italy, in December 2000.
Commonly referred to as the Palermo Protocol
• It is now 15 years since it came into existence
CONSEQUENCES OF THE
INTERNATIONAL PROTOCOLS
• Trafficked persons, especially women in
prostitution and child labourers, were no longer
viewed as criminals but as victims of a crime
• Rather than individual national responses to this
criminal activity or related criminal activity there
was now a global response in recognition of the
links with organised crime
• There was an internationally accepted definition
of trafficking
CONSEQUENCES (cont’d)
• The international and uniform acceptance of a
trafficking definition provided a comprehensive
coverage of criminal means by which trafficking
takes place, including not only force, coercion,
abduction, deception or abuse of power, but also
less explicit means, such as abuse of a victim’s
vulnerability (Article 3(a))
• From an evidentiary point of view the definition
of trafficking helped ensure that victims of
trafficking did not bear the burden of proof
(Article 3(b))
CONSEQUENCES (cont’d)
• That the exploitation of prostitution and
trafficking cannot be separated. The Protocol
acknowledges that much trafficking is for the
purpose of prostitution and for other forms of
sexual exploitation (Article 3(a))
• That it is not necessary for a victim to cross a
border so that women and children who are
domestically trafficked for prostitution and forced
labour within their own countries, are also
protected subject to provisions listed in Article 3
DEFINITIONS
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TRAFFICKING IN PERSONS
• Article 3 (a) of The United Nations Convention against
Transnational Organized Crime (2000) defines Human
Trafficking as:
• “the recruitment, transportation, transfer, harboring or
receipt of persons by means of the threat or use of
force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a
person having control over another person, for the
purpose of exploitation”
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EXPLOITATION
• “Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or
other forms of sexual exploitation, forced
labor or service, slavery or practices similar to
slavery, servitude or the removal of organs.”
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CONSENT
• Article 3(b) provides that the consent of the
trafficked person to the intended exploitation
is irrelevant where any of the means defined
have been used
• The UNODC Expert Group in 2014 authored an
Issue Paper on The Role of Consent in within
the International Legal Definition of
Trafficking in Persons
CHILDREN
• Article 3 (c) "The recruitment, transportation,
transfer, harbouring or receipt of a child for
the purpose of exploitation shall be
considered 'trafficking persons' even if this
does not involve any of the means set forth in
subparagraph (a) of this article”.
• Child means any person under the age of 18
years
OBLIGATION OF STATES
• Individual elements, such as sexual
exploitation, forced labor, slavery-like
practices, are not further defined in the
Convention
• However signatory states are obligated to
further define these terms under their
domestic legislation.
SLAVERY
• Article 1 of the UN Slavery Convention (1926)
defines slavery as:
• “the status or condition of a person over
whom any or all of the powers attaching to
the right of ownership are exercised”
DEBT BONDAGE
• Article 1(a) of the UN Supplementary Convention on
the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery (1956)
• "the status or condition arising from a pledge by a
debtor of his personal services or of those of a person
under his control as security for a debt, if the value of
those services as reasonably assessed is not applied
towards the liquidation of the debt or the length and
nature of those services are not respectively limited
and defined".
VICTIM
• The UN Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power (1985)
defines victims as:
• "persons who, individually or collectively, have
suffered harm, including physical or mental
injury, emotional suffering, economic loss or
substantial impairment of their fundamental
rights, through acts or omissions that are in
violation of criminal laws operative within
Member States, including those laws proscribing
criminal abuse of power" (Para. 1)
VICTIM WITNESS
• “victim witness” is a term used to refer to a victim of
trafficking who becomes a witness in criminal justice
proceedings
• The use of the term of victim witness means a victim of
trafficking is to be afforded all the support provided to
a victim of any crime as well as evidentiary protection
as a witness.
• The essential concern for stakeholders in the criminal
justice process is that a person, who is a
witness/victim, cooperates in the prosecution of the
offenders.
• The less effective the protection of victims/witnesses,
the more likely the cooperation will be withdrawn
SMUGGLING
• Article 3 of the Palermo Protocol, defines
smuggling of migrants as “the procurement, in
order to obtain, directly or indirectly, a financial
or other material benefit, of the illegal entry of a
person” into a country of which “the person is
not a national or a permanent resident”
• “Illegal entry” is the crossing of borders without
complying with the necessary requirements for
legal entry into the country
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TRAFFICKING AND SMUGGLING
• There is often confusion with the use of these
terms
• Factually there is often overlap
• Factually a smuggled migrant can become a
trafficking victim
• They differ in three key areas
• Given the definitions I have provided- can you
identify the differences?
BORDERS
• Migrant smuggling necessarily involves the
crossing of international borders
• Human trafficking may involve the crossing of
international borders but can also occur
within the borders of one country- domestic
trafficking
CONSENT
• migrant smuggling occurs with the consent of the person(s) being
smuggled.
• In contrast, victims of human trafficking need not necessarily
consent. They may have agreed to migrate to work initially in
another country but once there they can be prevented from
leaving. In those circumstances they then become a victim of
trafficking.
• Often they are then coerced to continue to work through physical
or psychological abuse/pressure, their travel documents may have
been confiscated and they are told they must pay off a debt
• Whatever initial consent may have existed becomes irrelevant
when any of the means (threat, force, coercion, fraud, etc.) are
used to enslave the trafficked person
PURPOSE
• Migrant smuggling involves illegal entry of a
person into a country for financial or other
material benefit only
• Human trafficking trafficking occurs for some
exploitative purpose- such as labour, sexual
and prurient purposes, begging, prostitution
or the removal of organs
Elements of Human Trafficking
Process
Means
Purpose
•
•
•
•
•
•
•
•
•
•
•
•
•
•
• Exploitation which
includes:
i. Prostitution and other
forms of sexual
exploitation
ii. Forced labour and
services
iii. Slavery and similar
practices
iv. Involuntary services
v. Removal of organs
Recruitment
Transportation
Transfer
Harbouring
Receipt of persons
Threat
Force
Coercion
Abduction
Fraud
Deception
Abuse of power
Abuse of vulnerability
Giving and receiving of
power
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Action (s)
Transnationality
Human Trafficking
Migrant Smuggling
Recruitment, transportation,
transfer, harbouring or receipt of a
person by means of the threat or use
of force or other forms of coercion,
of abduction, of fraud, of deception,
of the abuse of power or of a
position vulnerability or of the giving
or receiving of payments or benefits
Procurement of illegal
entry of a person into a
country of which the
person is not a national
or permanent resident
Not required
Required
Consent of the
smuggled or
trafficked person
Irrelevant once the means are
established
For children, the consent is
irrelevant regardless of the means
The smuggled person
consents to the
smuggling
Purpose
Exploitation includes:
a) Prostitution and other forms of
sexual
exploitation
b) Forced labor and services
c) Slavery and similar practices
d) Involuntary servitude
e) Removal of organs
For financial or other
material benefit
Highlighted Issues
It is important to highlight the following aspects:
• the international definition of trafficking in
persons does not require “exploitation” to have
actually occurred it is sufficient that the intention
to exploit is present
• the apparent consent of the victim does not alter
the offender’s criminal liability
• trafficking does not require a transnational
element: States are required to criminalise
trafficking taking place within their borders as
well as cross border trafficking
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INTERNATIONAL STANDARDS
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WHAT DOES THIS MEAN
• They are internationally recognised norms
• They are the minimum acceptable legal and
policy requirements/standards compliant with
relevant international conventions and practice
• It is best practice
• International standards do not vary from
country to country
• They do not vary according to cultural norms or
practices
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International Framework
• International law, also known as the law of
nations, is a body of rules and principles that
govern the relations and dealings of States
with one another
• International law, both in practice, and
conventions, imposes specific obligations on,
and provides rights to, States, in the same
way that domestic law functions with a
country’s citizens
What are the Sources of
International Law
• There are several accepted ‘types’ or sources
of international law.
• The primary sources, in order of importance,
are:
i)treaties/conventions
ii)custom/and accepted usual practice, and
iii) general principles of law as enunciated by
scholars, and judicial bodies such as the
International Court of Justice
INTERNATIONAL STANDARDS
FOR TRAFFICKING IN PERSONS
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Legal framework for trafficking in
persons-international standards
• A country’s national penal/criminal code (and other harmonising
legislation) must criminalise all aspects of trafficking in persons as
defined by the international convention, and community
• The national framework must go beyond the crime of trafficking to
ensure that related crimes are also adequately criminalised
• Sanctions provided for trafficking must take account of, and be
proportionate to the gravity of the offence and
• There must be no safe havens for traffickers or their assets by (a)
enabling the State to either extradite or prosecute; (b) providing for
the effective investigation, sequestration, and confiscation of the
proceeds of trafficking; and (c) mandating effective international
investigative and judicial cooperation.
• Article 5 of the Convention provides for the criminalisation of the
offence of trafficking, as well as offences of attempt, accomplice
and organisation
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REQUIREMENT FOR A SPECIALIST LAW
ENFORCEMENT AGENCY
• Article 9 provides for the prevention of trafficking in persons and
sets up a framework of policies and procedures to be adopted
• It includes measures such as bilateral and multilateral cooperation,
dedicated training of law enforcement and border agencies, and the
establishment of a dedicated, specialised anti-trafficking capacity –
saying that these aspects are essential to an effective investigative
response to trafficking
• The mandated unit should have the authority and power to
supervise and/or advise on all trafficking investigations
• The mandated unit should have the legal and procedural powers
necessary to ensure that it can adequately combat trafficking and
access the full range of reactive, proactive, and disruptive
investigative techniques
• The mandated unit must also work closely and supportively with
prosecutors and victim support agencies
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International Investigative and Judicial
Co-operation
• This is a critical aspect to transnational crimes- corruption, wildlife
trafficking, and trafficking in persons.
• Articles 6, 7 and 8 (inter alia)provide for cooperation between State
Parties as to the protection and repatriation of victims
• Article 9 (inter alia)provides for cooperation between State Parties as to
the prevention and investigation of offences
• This includes such aspects as: Extradition powers should be incorporated
in national legislation, mutual legal assistance between State Parties, and
border control measures
• Jurisdiction that allows for prosecution of and extradition for trafficking
offences committed abroad
• International legal co-operation so evidence can be moved across national
borders (mutual legal assistance)
• provide strong legislative powers to enable the effective investigation,
sequestration and confiscation of the profits generated by trafficking
networks
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