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European and International Standards in the Field of Human Trafficking

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European and International Standards in the Field of Human Trafficking Pregledni naučni rad Primljeno: 25. 1. 2017. UDK: 341.48:343.431 Revidirana verzija: 27. 2. 2017. doi: 10.5937/nabepo21-12283 Prihvaćeno: 1. 2. 2017. EUROPEAN AND INTERNATIONAL STANDARDS IN THE FIELD OF HUMAN TRAFFICKING Anna Lucia Valvo The Kore University of Enna, Sicily, Italy Summary: Trafficking in human beings is a phenomenon which from time immemorial the international community has had to face through the arrangement of legal instruments for its preven- tion and suppression. The first international Conventions that faced the problem date back to the early 1900s although, at the time, trafficking in human beings was better known as “white slave trade” and concerned a phenomenon smaller than today. In fact, today’s trafficking in human beings has boundaries wider than in the past, not only in terms of quantity but also in terms of quality of the organized criminal groups who are engaged in human trafficking. Qualified as a crime against humanity by the Rome Statute of July 1998 establishing the International Criminal Court, which in its Art. 7 includes enslavement as a crime against humanity prohibited by the Universal Declaration of Human Rights of December 10, 1948, today trafficking in human beings is also expressly prohibited by the Charter of Fundamental Rights of the European Union which in its Art. 5 provides that “no one shall be held in slavery or servitude; no one shall be required to perform forced or compulsory labour; trafficking in human -be ings is prohibited”. Keywords: trafficking of human beings, clandestine immigration, international law, the Warsaw Convention. Anna Lucia Valvo Introduction Trafficking in human beings is a phenomenon which from time immemo- rial the international community has had to face through the arrangement of legal instruments for its prevention and suppression.1 The first international Conventions2 that faced the problem date back to the early 1900s although, at the time, trafficking in human beings was better known as “white slave trade” and concerned a phenomenon smaller than to- day. In fact, today’s trafficking in human beings has boundaries wider than in the past, not only in terms of quantity but also in terms of quality of the organ- ized criminal groups who are engaged in human trafficking. Qualified as a crime against humanity by the Rome Statute of July 1998 establishing the International Criminal Court, which in its Art. 7 includes en- slavement as a crime against humanity,3 and prohibited by the Universal Dec- laration of Human Rights of December 10, 1948,4 today trafficking in human beings is also expressly prohibited by the Charter of Fundamental Rights of the European Union which in its Art. 5 provides that “no one shall be held in slavery or servitude; no one shall be required to perform forced or compulsory labour; trafficking in human beings is prohibited”. Unlike the past, today the crime of trafficking does not only consist of the exploitation of women forced into prostitution, but it affects a number of per- sons exploited in the labour market, and it also includes minors forced into begging and theft. 1 S. Forlati (a cura di), La lotta alla tratta di esseri umani fra dimensione internazionale e ordinamento interno, Napoli, 2013; Nascimbene-Di Pascale, Riflessioni sul contrasto al traffico di persone nel diritto internazionale, comunitario e nazionale, in G. Palmisano (a cura di), Il contrasto al traffico di migranti nel diritto internazionale, comunitario e interno, Milano, 2008, p. 27 ss. 2 See, as an example, the “International Agreement for the suppression of the White Slave Traffic” of May 18, 1904. Ratified by Italy on January 18, 1905, the execution order had been given with the R. D. No. 171, April 9, 1905; the “International Convention for the Suppression of the White Slave” signed in Paris on May 4, 1910 and entered into force on February 8, 1913; the “International Convention for the Suppression of the Traffic in Women and Children”, signed in Geneva on September 30, 1921, entered into force on June 18, 1922, which took into account even the male children; the “International Con- vention for the Suppression of the Traffic in Adult Women”, signed in Geneva on Octo- ber 11, 1933, entered into force August 24, 1934; the “International Convention for the Suppression of Trafficking in Human Beings and the Exploitation of the Prostitution of Others”, of December 2, 1949, entered into force on July 25, 1951, etc. 3 Art. 7, paragraph 2, let. c) “ ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”. 4 Art. 4: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. [80] NBP • Žurnal za kriminalistiku i pravo EUROPEAN AND INTERNATIONAL STANDARDS IN THE FIELD... Trafficking in persons means serious crime that involves recruiting, trans- porting and subsequent exploiting of human beings for profit. Victims of traf- ficking are, for the greater part, people escaping from underdevelopment, pover- ty and social need in general, or women and children abducted or circumvented with promises of work or even people fleeing scenarios of violence and war. A key feature of trafficking in persons, in addition to the violent or recruit- ment through deception, is the transfer of a victim across multiple countries and the sales of an individual from group to group before reaching the destination. And because of this, trafficking in persons is a crime which is necessarily transnational in nature and, as we will see, the latter is an essential prerequisite specifically provided by the Palermo Protocol to prevent, suppress and punish trafficking in persons, especially women and children, the Additional Protocol to the UN Convention against transnational organised crime.5 The phenomenon of trafficking is often, although not necessarily, connect- ed with smuggling of immigrants, from which, however, from a regulatory perspective, it is specifically distinct. 1. Trafficking in human beings and clandestine immigration The United Nations Convention against Transnational Organized Crime is supplemented by three additional protocols: 1. The Protocol to Prevent, Sup- press and Punish Trafficking in Persons, Especially Women and Children,2. The Protocol against the Smuggling of Migrants by Land, Sea and Air, and 3. The Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition. The Convention, therefore, makes a specific distinction betweentrafficking in human beings and the illegal transport of migrants (Smuggling of migrants). The central elements of the crime of trafficking defined in the Protocol are coercion, abuse and deceit, the elements that are not necessarily present in the crime of illegal transport of migrants. While human trafficking is essentially the forcible transfer for the pur- pose of exploitation (sexual or otherwise), smuggling of migrants is the illegal crossing of borders with the consent of the people who are helped to illegally cross the borders of the States. In contrast with trafficking in human beings, a crime that involves the coer- cion of the victim, smuggling requires the consensus among the smuggler and 5 Adopted by the General Assembly in Resolution 55/25 of 15 November 2000 and signed in Palermo in December of that year. Adopted by the General Assembly in Resolution 55/25 of 15 November 2000 and signed in Palermo in December of that year. NBP • Journal of Criminalistics and Law [81] Anna Lucia Valvo the smuggled. The smuggling of migrants, moreover, does not imply the pur- pose of exploitation which is instead an essential element of trafficking and -in volves, in contrast to the crime of human trafficking, the violation of the rules on legal migration, a violation that in the crime of trafficking is only potential. Under this specific profile it can also be argued that while smuggling is a crime against the state and has a transnational nature, trafficking is a crime against the person and it does not necessarily have a transnational nature.6 Although in the factual reality the distinction between the two offenses is not always clear as in its theoretical delineation, it can be said that the element that characterizes trafficking is the use of forced labour of the trafficked person rather than the issues related to the regular or irregular entry of the individual across the borders.7 Nevertheless, with regard to the element of movement a clear distinction is made in the Convention between trafficking in human beings and smuggling of migrants. As for the smuggling of migrants, its purpose is, as mentioned before, the illegal border crossings; smuggling of migrants mainly concerns the protection of States against irregular migration.8 The crime connected to the smuggling of migrants as such does not violate the rights and freedoms of the human person, but it causes a prejudice to the political interest of the States whose borders are irregularly validated. “Illegal smuggling of migrants” in the dedicated Protocol (Art. 3, letter a.) means “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”. The offence of smuggling of migrants is therefore comparable to the offence of assisting illegal immigration. The constitutive elements and the conducts that fall under this offense are different. The main features of this hypothesis are: a. the commission of the offense by an organized and structured criminal group; b. the purpose of obtaining a financial gain or a benefit of another nature from the offense.
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