The United Nations Trafficking in Persons (“Palermo”) Protocol
Human Trafficking is a crime against humanity. It involves an act of recruiting, transporting, transferring, harboring or receiving a person through a use of force, coercion or other means, for the purpose of exploiting them.
Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims.
UNODC, as guardian of the United Nations Convention against Transnational Organized Crime (UNTOC) and the Protocols thereto, assists States in their efforts to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol).
What is Human Trafficking?
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs
Elements of Human Trafficking
On the basis of the definition given in the Trafficking in Persons Protocol, it is evident that trafficking in persons has three constituent elements;
The Act (What is done)
Recruitment, transportation, transfer, harboring or receipt of persons
The Means (How it is done)
Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim
The Purpose (Why it is done)
For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labor, slavery or similar practices and the removal of organs.
To ascertain whether a particular circumstance constitutes trafficking in persons, consider the definition of trafficking in the Trafficking in Persons Protocol and the constituent elements of the offense, as defined by relevant domestic legislation.
Criminalization of Human Trafficking
The definition contained in article 3 of the Trafficking in Persons Protocol is meant to provide consistency and consensus around the world on the phenomenon of trafficking in persons. Article 5 therefore requires that the conduct set out in article 3 be criminalized in domestic legislation. Domestic legislation does not need to follow the language of the Trafficking in Persons Protocol precisely, but should be adapted in accordance with domestic legal systems to give effect to the concepts contained in the Protocol.
In addition to the criminalization of trafficking, the Trafficking in Persons Protocol requires criminalization also of:
Attempts to commit a trafficking offense
Participation as an accomplice in such an offense
Organizing or directing others to commit trafficking.
National legislation should adopt the broad definition of trafficking prescribed in the Protocol. The legislative definition should be dynamic and flexible so as to empower the legislative framework to respond effectively to trafficking which:
Occurs both across borders and within a country (not just cross-border)
Is for a range of exploitative purposes (not just sexual exploitation)
Victimizes children, women and men (Not just women, or adults, but also men and children)
Takes place with or without the involvement of organized crime groups.
Vulnerability: Why Does Human Trafficking Happen?
Human traffickers prey on people who are poor, isolated and weak. Issues such as dis-empowerment, social exclusion and economic vulnerability are the result of policies and practices that marginalize entire groups of people and make them particularly vulnerable to being trafficked. Natural disasters, conflict and political turmoil weaken already tenuous social protection measures. Individuals are vulnerable to being trafficked not only because of conditions in their countries of origin, however. The allure of opportunity, the relentless demand for inexpensive goods and services and the expectation of reliable income drive people into potentially dangerous situations where they are at risk of being exploited.
Impact: The Human and Social Consequences of Human Trafficking
The human and social consequences of trafficking are compelling. From the physical abuse and torture of victims to the psychological and emotional trauma, to the economic and political implications of unabated crime, the impact on individuals and society is clearly destructive and unacceptable.
The Consequences of Trafficking on Individuals
Human trafficking has an impact on the individuals it victimizes in all areas of their lives. Every stage of the trafficking process can involve physical, sexual and psychological abuse and violence, deprivation and torture, the forced use of substances, manipulation, economic exploitation and abusive working and living conditions.
Unlike most other violent crime, trafficking usually involves prolonged and repeated trauma. Documentation and research describe how men, women and children are abused in specific exploitative conditions and the short- and long-term physical injuries, disabilities and deaths that may result. For a number of specified reasons, trafficked persons are at great risk of HIV infection.
The trauma experienced by victims of trafficking includes post-traumatic stress disorder, anxiety, depression, alienation, disorientation, aggression and difficulty concentrating. Studies indicate that trauma worsens during the trafficking process and may persist far beyond the end of any exploitation.
While subject to the same harmful treatment as adults, child victims are especially vulnerable to trafficking because of their age, immaturity and lack of experience, to abusive practices that may, for example, stunt their further physical development and to continued victimization as a result of attachment, developmental and social difficulties.
The behavior of trafficking victims can be difficult for third parties to understand, while victims can find it difficult to comprehend what has happened to them, or to discuss it with or explain it to others. Victims may appear to those around them, even support persons, to be uncooperative, irritable, hostile, aggressive or ungrateful. The stigma attached to them as victims has been shown to have a significant and ongoing impact on their lives, including in the trauma experienced by the individual victim as well as the possibility of physical rejection by family and/or community. The long-term consequences of human trafficking for the individual are complex and depend on many factors, with no guarantee of recovery. Re-victimization is often a further consequence of the experience.
Impact On the Rule of Law
As a criminal act, trafficking violates the rule of law, threatening national jurisdictions and international law. Organized crime is one of the most important mechanisms for unlawful redistribution of national wealth, unduly influencing markets, political power and societal relations.
These effects may be acute in countries responding to civil rest, natural disasters or post-conflict situations. The corresponding challenges faced by Governments are in stark contrast to the opportunities created for human traffickers. The underlying threat posed by trafficking in persons is why the issue is increasingly recognized as one of global security.
As a complex manifestation of the global economy, organized crime and violations of human rights, human trafficking causes extreme hardship to the suspected millions of people worldwide who have become victims of it and also has an impact on the financial markets, the economies and the social structures of countries where it is allowed to exist.
As a major component of organized crime, with all its financial power, trafficking in persons has a complex and interlocking negative impact across human, social, political and economic spheres.
The destabilizing and dangerous consequences of human trafficking range from readily recognized violence, direct economic loss and major migration concerns to the less easily quantified, equally serious, but more complex effects of risks and harms to environmental, social, health and safety, and violations of human rights.
Trafficking in persons directly challenges the development of stable, more prosperous societies and legitimate economies, and works strongly against the reconciliation of political interests with humanitarian and human rights obligations.
The range of trafficking-related crimes and their broad and interrelated impacts have created a cumulative threat to global peace, security and stability and have shaped political, social and economic responses at both national and global levels.
The Victim-Centered Approach as Part of a Comprehensive Criminal Justice Response to Human Trafficking
A comprehensive criminal justice response to human trafficking should include measures for the protection and support of trafficked victims alongside measures to prosecute human traffickers. The provision of protection and support measures should not be conditional on a trafficked victims’ willingness to cooperate with law enforcement officers in their criminal investigations which underlines the human rights based approach to human trafficking.
Ideally, a reflection period of 30 days minimum should be offered to all identified trafficked victims so that they are given time to make an informed decision as to whether they wish to cooperate with law enforcement authorities or not. Reflection periods therefore have the potential to create an environment that encourages victim cooperation in the prosecution case. Further, reflection periods also work to avoid the rapid deportation of the trafficked victim, allow the victim time to recover from their trafficking ordeal and reduces pressure on law enforcement authorities to put together a prosecution case.
Including a reflection period under national human trafficking policy has been a contentious issue for some Member States in regards to concerns relating to illegal immigration. A reflection period has been viewed by some Member States as having the potential to act as a ‘pull factor’ for illegal immigration whereby it is feared that some illegal immigrants may make bogus claims of having been trafficked in order to receive the benefits of protection and support offered to genuine victims of trafficking. However, those Member States that have implemented victim protection and support policy measures under their national legislative responses to human trafficking have not reported such an abuse.
A comprehensive victim protection and support policy should include those elements that are outlined in the UN Protocol and COE Convention. In support of the human rights based approach to human trafficking, victim protection and support policy measures should be available to all identified trafficked persons on an unconditional basis and should be specifically designed to meet their needs.
Victim protection and support service providers should have the capacity to accommodate the estimated number of trafficked victims arriving in the country of transit or destination. Providing such services to trafficked victims will give them the confidence and security to cooperate in the prosecution case. In addition other measures should be incorporated in the interests of the trafficked victim and good law enforcement practice. They include identification systems of trafficked victims and national referral mechanisms to victim protection and support services.
NGOs and other organizations with the professional capacity to support trafficked victims are often designated and funded by national governments as service providers of protection and support for trafficked victims. The role of NGOs in relation to the criminal investigation should be clearly defined and coordinated through such instruments as Memorandums of Understanding, National Referral Mechanisms and/or National Action Plans.
Criminal justice practitioners, and particularly law enforcement officers, should be aware of human trafficking legislation and victim protection and support services that are available in their jurisdictions. Law enforcement officers are often a first point of contact for trafficked victims and are therefore the ones most likely to make referrals to protection and support services.
Pro-active investigations have the interests of the trafficked victim as the priority. Good practice criminal justice procedures can be achieved through education and training of law enforcement officers and criminal justice practitioners. Good practice responses for pro-active investigations include identifying trafficked victims and making referrals to protection and support services, knowledge of the law on human trafficking, gathering intelligence relevant to the prosecution case, interviewing trafficked persons and treating them appropriately as victims, specialized criminal court procedures for the prosecution, and engaging in continual risk assessment of the trafficked victim.
Those who enforce the law should be aware of the distinction between human trafficking, people smuggling and other forms of illegal immigration. In addition proper data collection systems can also be a valuable tool for human trafficking investigations as a resource for storing evidence, intelligence and information on particular trafficking cases or more generally for trafficking cases across the board. Data bases are an excellent resource for securing and storing solid evidence and can act as a point of reference for each individual trafficking investigation.
Awareness raising can also be extended wider to the general public. Initiatives like Crime Stoppers which are large scale awareness raising efforts aiming to gather anonymous information are a good way to raise public awareness of human trafficking and contribute to the gathering of intelligence and information on human trafficking investigations.
Inter-agency coordination at a national level is paramount to a successful criminal investigation. Coordination of the roles of each agency involved in the human trafficking investigation can be defined under such instruments as National Referral Mechanisms, a Memorandum of Understanding or a National Action Plan.
Agencies that are likely to be involved in human trafficking prosecution cases include police, immigration authorities, specialized NGOs, social services, interpreters and translators, judges, defense and prosecution lawyers.
Coordinating roles for the prosecution case avoids confusion and overlap of information and activity, leaves little room for gaps in the response to the trafficking case and ensures that trafficked victims have access to protection and support services. For coordination of inter-agency roles to be most effective, adequate resource capacities for responding to human trafficking must be available and in place.
If certain elements of the comprehensive criminal justice response to human trafficking are missing from the national policy response, it can have a detrimental impact on the prosecution case and on the well being of trafficked victims. Without a comprehensive response, prosecution cases may not be successful, whereby minimum penalties are imposed against the traffickers.
Trafficked victims may not have the confidence and security to provide valuable evidence to law enforcement authorities or testify in court if they are not protected and supported before, during and after the criminal investigation. If no maximum penalties are handed down to the traffickers, law enforcement against human trafficking does not take full effect and has limited capacity to act as a deterrent against others involved in the criminal activity of human trafficking.
A comprehensive criminal justice response to trafficking should support the full implementation of the law against the traffickers and offer trafficked victims protection and support in recognition of the exploitation they have suffered and to help them recover from their trafficking ordeal.
The absence of comprehensive measures for the protection and support of trafficked victims under national human trafficking policy is also to the detriment of trafficked victims. Detrimental effects to the victim include a strong risk that victims may be re-trafficked, that they will have difficulty reintegrating back into society and with their family in their country of origin, that they will be suffering from extreme trauma and that they will not be able to get closure from their trafficking ordeal as no sense of justice would have been served if a prosecution case is not developed against their traffickers.
Consent of Victims
The Trafficking in Persons Protocol also establishes that consent of the victim is irrelevant where the use of means, as in the definition of trafficking in persons, is established. In doing so, the Protocol recognizes that a victim’s exercise of free will is often limited by means of force, deception or the abuse of power. It respects the ability of adult persons to make self-determined decisions about their lives, specifically regarding labor and migration choices.
However, the Trafficking in Persons Protocol excludes a consent-based defense in cases where the use of improper means of obtaining consent is established. A child cannot consent: even if none of the means are established, the Protocol excludes any possibility of consent from a victim under the age of 18.
What is Trafficking in People?
Trafficking involves transporting people away from the communities in which they live and forcing them to work against their will using violence, deception or coercion. When children are trafficked, no violence, deception or coercion needs to be involved: simply transporting them into exploitative conditions constitutes trafficking. People are trafficked both between countries and within the borders of a state.
Trafficking affects countries and families on every continent. Because of its hidden nature, it is difficult to get accurate statistics on the numbers affected, but the International Labour Organisation (ILO) estimates that at any one time there are some 2.5 million people who have been trafficked and are being subjected to sexual or labor exploitation.
Most coverage of the trafficking issue has focused on trafficking for sexual exploitation, but around a third of all trafficked people are used exclusively for labor exploitation (for example, domestic work, agricultural work, catering or packing and processing).
Trafficking for sexual exploitation almost exclusively affects women and girls (98 per cent), but trafficking for labor exploitation also affects women more than men (56 per cent being women and girls).
Smuggling or trafficking?
People smuggling is the illegal movement of people across a border for a fee. It can be dangerous and expensive, but on arrival in the country of destination the smuggled person is free.
People trafficking is fundamentally different as the trafficker is facilitating the movement of that person for the purpose of labor or sexual exploitation. This begins when they arrive at the destination and always involves violence, deception or coercion.
How Does Trafficking Work?
The vast majority or people who are trafficked are migrant workers. They are seeking to escape poverty and discrimination, improve their lives and send money back to their families. They hear about well-paying jobs abroad through family, friends or “recruitment agencies”. But when they arrive in the country of destination they find that the work they were promised does not exist and they are forced instead to work in jobs or conditions to which they did not agree.
Traffickers can coerce people to work through a variety of mechanisms. Trafficked migrants usually have their passports taken away on arrival. Without their documents they cannot prove they have a right to be in the country and therefore cannot go to the authorities for assistance.
Most migrants have borrowed money from family, friends or loan sharks in order to travel abroad and when they find out they have been deceived they still have a debt to pay back of several thousand pounds. This debt can be inflated through charges for food, accommodation and interest on the loan.
If the debt, their irregular immigration status and their social isolation are not sufficient to make the migrant submit to the trafficker’s demands they can also be subjected to intimidation, violence, torture and rape. Threats of violence can also be extended to family in the migrant’s country of origin to ensure that victims do not try to escape.
How Do We Stop Trafficking?
States need to pass legislation which prohibits and punishes all forms of trafficking as defined and set out in the UN Trafficking Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
Governments also need to recognize that all trafficked people are victims of a human rights violation and provide them with minimum standards of protection and support. This should include appropriate shelter, financial and legal assistance, counseling, health services and temporary and permanent residence status.
States must also recognize that these initiatives alone will not be sufficient to counter the problem of trafficking and that their policies must also address the root causes of this problem, which are closely linked to migration issues.
Growing inequalities of wealth between and within countries and an increasing, and often unacknowledged, demand for migrant workers in both developed and developing countries are fueling migration. Many governments have reacted to this by mounting campaigns which seek to evoke fear in potential migrants and dissuade them from traveling abroad, and by implementing more restrictive immigration policies. This response is unlikely to deter migrants who are seeking work abroad as a means of survival and has increased the profitability of both trafficking and smuggling by reducing regular routes for migration.
The promotion of regular and managed migration, in line with the UN Convention on the Protection of the Rights of All Migrant Workers and their Families (1990) has the potential to reduce trafficking by offering migrants a mechanism by which they can take up jobs abroad which is safer, cheaper and guarantees their human and labor rights in the country of destination.
Sources: The United Nations