Human trafficking and international law

By Elizabeth Willmott-Harrop

20 May 2013, updated 30 October 2013

Trafficking in persons was codified as long ago as 1910 by the “International Agreement for the suppression of the White Slave Traffic”[1]

Over 100 years later, despite the term “trafficking” implying movement, international law defines trafficking by a person’s exploitation and not by their transit. So in other words a person can be a victim of trafficking simply through their recruitment for exploitation for example, and their transference across borders is not significant.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (UN Trafficking Protocol)[2] adopted in 2000 and known as one of the “Palermo Protocols”, defines trafficking as “the recruitment, transportation, transfer, harbouring or receipt of persons … for the purpose of exploitation”.

Exploitation includes sexual exploitation, forced labour, slavery, servitude, the removal of organs and ritual murder. This is reflected by the Council of Europe Convention on Action against Trafficking in Human Beings.

On 23 October 2013, the European Parliament adopted a resolution on organised crime, corruption and money laundering: recommendations on action and initiatives to be taken. This includes various measures:

• In support of a coherent uniform regulatory framework – protection and assistance for victims (articles 1-26)
• Halting organised crime by striking at the proceeds and assets that it generates (articles 27-48)
• Strengthening judicial and police cooperation at European and international level (articles 49-64)
• In support of an efficient and corruption-resistant public administration (articles 65-74)
• In support of more accountable politics (articles 75-81)
• In support of more credible criminal justice (articles 82-87)
• In support of more honest business practices (articles 88-92)
• In support of greater transparency in the banking system and the professions (articles 93-100)
• Ensuring that crime does not pay (articles 101-117)
• New technologies to fight organised crime (articles 118-122)
• Final recommendations for a European action plan to combat organised crime, corruption and money laundering (articles 123-133)

Other relevant frameworks

In addition to the UN Trafficking Protocol and European Trafficking Convention are various other mechanisms which contain provisions to protect children from trafficking and to protect victims of trafficking, including providing for their rehabilitation. These include:

• Human rights treaties such as the UN International Covenant on Civil and Political Rights (ICCPR)[3] and the UN Convention on the Rights of the Child (CRC)[4] which protects for example the rights to family life, birth registration and nationality.
• South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution 2002[5]
• The International Labour Organization (ILO) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 1999 No 182[6]
• National child protection and other legislation.

The issue of consent

The means by which a person is trafficked is described in Article 3 (a) of the UN Trafficking Protocol as “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”.

So if a victim’s consent to the intended exploitation is obtained through these means, then that “consent” is negated.

Children on the other hand do not need to be trafficked by those means, in order to be free of criminal liability. Their “consent” in whatever form is irrelevant and children are deemed to be unable to consent to their trafficking, regardless of the means used.

As the UN Office of Drugs and Crime (UNODC) summarises “Regardless of whether their consent was obtained without use of any prohibited means, children have special legal status”[7].

Trafficking victims as criminals

Trafficking victims almost inevitably commit crimes, from the use of illegal identity papers, to criminal acts which their traffickers coerce them into, such as cannabis farming in the UK.

In a positive move, The Council of Europe Convention on Action against Trafficking in Human Beings 2005[8] which has an identical definition of trafficking to the UN Protocol, has been updated with a 2011 European Union Directive[9]. This broadens the scope of trafficking victims to include coerced criminal activities, with member states required to comply with the directive’s provisions by April 2013.

From that point on “victims of trafficking in human beings should … be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking.

“The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators.”