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Analysis of the Definition of Trafficking in Human Beings in the Palermo Protocol

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Analysis of the Definition of Trafficking in Human Beings in the Palermo Protocol Analysis of the definition of trafficking in human beings in the Palermo Protocol October 2005 Marjan Wijers (LL.M, MA) Table of content General introduction Part I The Palermo Protocol 1. Introduction 2. Definition of trafficking in human beings in the Palermo Protocol 3. Background 4. The concept of “exploitation” 5. Relation between trafficking in human beings and prostitution 5.1 The concept of forced prostitution: can prostitutes be trafficked? 6. The issue of consent 7. Relation between trafficking in human beings and smuggling 8. Relation between trafficking in human beings and the forced labour or slavery-like outcomes of trafficking 9. Relation with the parent Convention: the crossing of borders and the involvement of organised crime 10. Intent, attempting, participating, organising and directing 11. Definition of victim Part II Explanation of the different elements of the definition 1. Introduction 2. The “acts” 3. The “means” 3.1 The issue of consent 4. The “purposes”: the concept of exploitation Exploitation of the prostitution of others and sexual exploitation Removal of organs Illegal adoption Part III Interpreting the Protocol: meaning and interpretation of the various prohibitions on forced labour, slavery and related practices 1. Introduction 2. Universal Declaration on Human Rights, 1948 2 3. Slavery Convention, 1926, amended by Protocol, 1953 4. UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery, 1956 5. International Covenant on Civil and Political Rights (ICCPR), 1966 6. ILO Conventions on Forced Labour No. 29, 1930, and No. 105, 1957 7. Convention on the Rights of the Child, 1989 8. Statute of the International Criminal Court (ICC), 1998 9. Regional instruments 9.1 European Convention on Human Rights (ECHR), 1950 9.2 American Convention on Human Rights, 1969 9.3 African Charter on Human and Peoples’ Rights, 1981 10. Summary and Conclusions 10.1 Summary 10.2 Conclusions General conclusions and recommendations Annex: Art. 273a Dutch Criminal Code Literature 3 General introduction This report is made on the request of UNDP Belarus. The aim of this report is • to analyse the definition of trafficking in human beings as contained in the Palermo Protocol, its universality and applicability in national law; • to analyse its relation with related phenomena, in particular prostitution, smuggling of human beings and forced labour, slavery-like practices and servitude; • to give recommendations for the application of the Palermo definition in the national criminal code of Belarus 4 PART I THE PALERMO PROTOCOL 1. Introduction In this part some general issues will be discussed with regard to the definition of trafficking as contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime, as agreed upon in Palermo and adopted by the General Assembly of the UN at 15 November 2000 (also: Palermo Protocol).1 In particular, attention will be paid to the relation between trafficking in human beings and prostitution, the issue of consent, the relation with smuggling and the relation between trafficking and its forced labour and slavery-like outcomes. Also the relation of the Protocol with its parent convention will be discussed. Only limited attention will be paid to the trafficking of children. Given their specific position and needs this would require a separate study. This analysis will focus on the definition in the Palermo Protocol. The issue of victim protection and assistance is not discussed nor is the issue of sanctions. It should be noted, however, that there is broad spectrum of sanctions – criminal, administrative and civil/labour - that are relevant to prevent and combat trafficking. Guidelines for the use of these sanctions can be found in the ILO Guidance for Legislation and Law Enforcement on Human Trafficking and Forced Labour Exploitation (ILO, Human Trafficking and Forced Labour Exploitation 2005).2 2. Definition of trafficking in human beings in the Palermo Protocol Art. 3 of the Palermo Protocol contains the following definition of trafficking in human beings: (a) ‘Trafficking in persons’ shall mean: - the recruitment, transportation, transfer, harbouring 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 1 Together with the Protocol against Smuggling of Migrants by Land, Sea and Air. The parent convention came into force 29 September 2003; the Trafficking Protocol came into force 25 December 2003. 2 Other relevant guidelines are the Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime prepared by the UN Office on Drugs and Crime (UNODC, 2004), Recommended Principles and Guidelines on Human Rights and Human Trafficking issued by the UN High Commissioner for Human Rights (UN HCHR, 2002) and, in particular with regard to children, the UNICEF Guidelines for Protection of the Rights of Children Victims of Trafficking in South Eastern Europe (2003). 5 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; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) 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 subparagraph (a) (d) ‘child’ shall mean any person under eighteen years of age. The Protocol applies to the offences defined as trafficking where they are transnational in nature and involve a criminal group (Art. 4), and obliges State Parties to penalise the conduct set forth in Art. 3 when committed intentionally (Art. 5, para 1) as well as to penalise attempting to commit, participating as an accomplice and organizing or directing other persons to commit an offence established in accordance with the first paragraph (Art. 5, para 2, sub a, b & c). The definition thus contains three distinct, but interconnected elements: • the “acts”: the recruitment, transportation, transfer, harbouring or receipt of persons; • the “means”: 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 payments or benefits to achieve the consent of a person having control over another person; • the “purposes”: 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. The Protocol is primarily a law enforcement instrument intended to promote cross border co- operation by governments and to ensure that all countries have adequate laws to address these crimes. Art. 2 states as purposes “to prevent and combat trafficking in persons, paying particular attention to women and children; to protect and assist the victims of such 6 trafficking, with full respect for their human rights; and to promote co-operation among States Parties in order to meet the above objectives”. 3. Background The Protocol, as all international treaties, is the result of political negotiations and thus a (political) compromise between different views. Points of debate during the negotiations of the definition were in particular the following issues: • the relation between trafficking and prostitution; • the issue of consent; • the relation between trafficking and smuggling; • the broadening of the definition of trafficking to include other purposes than (forced) prostitution; • the broadening of the definition to include the trafficking of men and boys. One of the consequences of the definition being a compromise is that some elements are not defined at all, e.g. the concept of sexual exploitation. For other concepts, like forced labour, one has to go back to other international treaties (see part III). Especially undefined terms pose a problem when translating the Palermo definition into domestic criminal law in the light of the principle of legality, in particular the requirement of lex certa (clarity of the elements that constitute a crime) and praevia lege (non- retroactivity). Crimes must be defined as clearly and unequivocally as possible and it must be clear in advance which behaviour is punishable and which one is not. The Protocol enjoys wide international support. This applies in particular to the definition. The preamble, for example, of the EU Framework Decision on combating trafficking in human beings3 mentions the UN Protocol as a decisive step forwards towards international cooperation, and adopts a definition that heavily leans on the Protocol’s definition. Also the OSCE Action Plan adopts the Protocols definition.4 4. The concept of exploitation 3 Decision of 19 July 2002 (2002/629/JBZ), OJ 1.8.2002 L 203, coming into force the same day. The Framework Decision obliges Member States to criminalise trafficking as defined in the FD, and to adopt a minimum/maximum sanction of 8 yrs imprisonment if certain aggravating circumstances apply. Member States must comply to the FD before 1 August 2004. The purpose of Framework Decisions is to harmonise the legislation and regulations of the EU Member States. They are binding as to the result, but Member States are free to choose the forms and means by which they achieve this result.
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