View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Groningen University of Groningen Trafficking in Persons under International Law and its Incorporation within Enslavement as a Crime against Humanity Siller, Nicole IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2017 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Siller, N. (2017). Trafficking in Persons under International Law and its Incorporation within Enslavement as a Crime against Humanity. [Groningen]: University of Groningen. 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Cover design and Layout: Trics Media – www.trics-media.nl Printing: Off Page – www.offpage.nl Trafficking in Persons under International Law and its Incorporation within Enslavement as a Crime against Humanity PhD Thesis to obtain the degree of PhD at the University of Groningen on the authority of the Rector Magnificus Prof. E. Sterken and in accordance with the decision by the College of Deans. This thesis will be defended in public on Thursday 23 February 2017 at 14.30 hours by Nicole Jean Siller born on 25 June 1984 in Colorado, USA Supervisors Prof. C.I. Fournet Prof. H.D. Wolswijk Assessment committee Prof. A.L. Smeulers Prof. H.G. van der Wilt Prof. C. Stahn For my grandparents, Frank and Lily. Acknowledgements I am truly grateful for all of the help and support that I received throughout my doctoral studies. First and foremost, I must express my deepest gratitude to my supervisor, Professor Caroline Fournet. I will be forever grateful for your continuous support of my Ph.D. study and related research, for your patience, encouragement, cocoscopes, and immense knowledge. We have shared many laughs and made so many great memories throughout the last four years together. I could not have imagined having a better advisor and mentor. I also wish to express appreciation to my second supervisor, Professor Hein Wolswijk. Your critical eye and legal insight motivated me to improve the quality of the arguments that this thesis attempts to make. Besides my supervisors, I would like to thank the members of my thesis committee: Professor Alette Smeulers, Professor Carsten Stahn and Professor Harmen van der Wilt, for their insightful comments and feedback, and for taking the time to read my manuscript. In addition to those mentioned above, I would like to thank Dr. Kai Lindenberg, Dr. Panos Merkouris, Tiffany Oldfield, Leigh Siller, Jude Jarvis, Kate van Doore and Dr. Jelena Golubović for thoughtful feedback given on various portions of this research and words of encouragement. On a practical level, I would like to thank the University of Groningen and Rosalin Franklin Fellowship program for funding my research. Many thanks also to the great team at Trics Media for designing the cover, layout and getting this book printed. I would like to thank my paranymphs. Dr. Laura ‘AL’ Peters, you are not only a colleague, but a great friend. Many thanks for facilitating a steady stream of ‘good vibes’ between our offices. Thank you Tiffany Oldfield for always believing in me and encouraging me. You are one-of-a-kind and I am beyond grateful for our friendship. And to my sister Heather: words will never be able to express how thankful I am to have you in my life. I am proud to be your sister. Our weekly chats and yearly excursions throughout this period were some of the high points of my time spent in Europe. I am also grateful to so many friends who have supported me throughout this journey. I am one of the lucky few to have so many friends that I consider family. To my expat group in Groningen, thank you for taking me in and providing many much-needed distractions from the Ph.D. process, most notably in the form of coffee and lunch dates, ‘FFFs’ nights and pub quiz. To my friends back in the USA, thank you for your words of encouragement, cards and care packages. So many of you also came to visit and spend time with me in Europe. Your friendships mean the world to me. I must express my very profound gratitude to my grandparents to whom this book is dedicated. Any achievements attributed to me are owed to the two of you. I would also like to thank the Jansmas and de Jongs for welcoming me into their beautiful Dutch family. Finally, to Jelmer— thank you for encouraging me every step of the way. You have made me smile every day since we met. I love you and I cannot wait to begin our next adventure together in Australia. Nicole Siller Groningen, 9 January 2017 7 Table of Contents Acknowledgements 7 Table of Abbreviations 13 Preface 21 1 Introduction 23 1.1 Problem, Context and Research Questions 23 1.2 Research Structure, Scope and Methodology 29 1.2.1 Part I: Defining Human Trafficking Under International Law 30 1.2.2 Part II: Determining Trafficking’s Incorporation within Enslavement as a Crime Against Humanity 31 Part I: Defining Human Trafficking Under International Law 35 2 A Statutory Evolution of Human Trafficking in International Law before the Palermo Protocol 36 2.1 Introduction 36 2.2 The Origins of a Movement: The Campaign to End State Regulated Prostitution Transforms into the Fight against White Slavery 37 2.3 Legislating International Responses to Human Trafficking 42 2.3.1 1904: The International Agreement for the Suppression of the ‘White Slave Traffic’ 47 2.3.1.1 Procuring 50 2.3.1.2 Immoral Purposes 56 2.3.2 1910: The International Convention for the Suppression of the ‘White Slave Traffic’ 59 2.3.3 1921: The International Convention for the Suppression of Traffic in Women and Children 63 2.3.4 1933: The International Convention for the Suppression of the Traffic in Women of Full Age 67 2.3.5 1937: Drafting the International Convention for Suppressing the Exploitation of the Prostitution of Others 69 2.3.6 1949: The Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others 71 2.4 Ancillary Twentieth Century International Legal Developments and Considerations 75 2.4.1 1989: Convention on the Rights of the Child and its Optional Protocol 76 2.4.2 1994 Inter-American Convention on International Traffic in Minors 77 2.5 Concluding Remarks 78 3 The Palermo Protocol 80 3.1 Introduction 80 3.2 The United Nations Convention Against Transnational Organized Crime (CTNOC) 83 3.3 The Palermo Protocol 85 3.3.1 Methodology and Sources Relevant to the Palermo Protocol’s Interpretation 86 9 3.3.2 Understanding the Legal Relationship between the CTNOC and the Palermo Protocol 87 3.3.3 The ‘Action’ Element 89 3.3.3.1 Recruitment 91 3.3.3.2 Transportation 94 3.3.3.3 Transfer 94 3.3.3.4 Receipt of Persons 96 3.3.3.5 Harboring 96 3.3.4 The ‘Means’ Element 97 3.3.4.1 The Role of Consent in Trafficking 98 3.3.4.2 Threat or Use of Force or Other forms of Coercion 102 3.3.4.3 Abduction 105 3.3.4.4 Abuse of Power or of a Position of Vulnerability 106 3.3.4.5 Deception and Fraud 110 3.3.4.6 The Giving or Receiving of Payments or Benefits to Achieve the Consent of a Person having Control over Another Person 111 3.3.5 Reflections on Intent for the Actus Reus Elements 112 3.3.6 The ‘Purpose’ Element 114 3.3.6.1 Can ‘Exploitation’ (in the context of Trafficking) be defined? 115 3.3.6.2 Defining the Palermo Protocol’s Enumerated Forms of Exploitation 120 3.3.6.2.1 The Exploitation of the Prostitution of Others or Other Forms of Sexual Exploitation 120 3.3.6.2.2 Forced Labor or Services 124 3.3.6.2.3 Slavery 126 3.3.6.2.4 Practices Similar to Slavery and Servitude 128 3.3.6.2.4.1 Debt Bondage 130 3.3.6.2.4.2 Serfdom 131 3.3.6.2.4.3 Servile Marriage 132 3.3.6.2.4.4 Child Exploitation 134 3.3.6.2.5 The Removal of Organs 135 3.3.6.3 Reflections on Intent for the Mens Rea Element 138 3.4 Concluding Remarks and Segue Way into Part II of the Research Project 140 Part II: Determining Trafficking’s Incorporation within Enslavement as a Crime Against Humanity 143 4 Defining Slavery, Slave Trade, Enslavement and Sexual Slavery 145 4.1 Introduction 145 4.2 Slavery 146 4.2.1 Prior to an International Definition: Identifying Slavery in Law through the Master-Slave Relationship and Notions of Property and Ownership 147 4.2.2 The Slavery Convention and Enumerating ‘Powers Attaching to the Right of Ownership’ 150 4.3 Slave Trade 156 4.4 Enslavement 160 4.5 Sexual Slavery 165 10 4.6 Discerning Slavery, Slave Trade, Enslavement and Sexual Slavery from Each Other and Trafficking under Codified International Law 166 4.7 Customary Status, Erga Omnes Obligation and Jus Cogens Norms 168 4.8 Concluding Remarks