Inmigration, Political Asylum,

and Development Cooperation

Ángeles Cano Linares

Lesson 4
• Lesson 4

– Fight against human trafficking.

• Introduction
• Human trafficking
• Smuggling on migrants

– Institutional Framework: United Nations Office on Drugs and Crime

(UNODC)
lucha contra tráfico y trata de personas

HRIL 1949, Convention for the Suppression of the Traffic in Persons and of
the Exploitation of the Prostitution of Others

• 2000 Palermo United Nations Convention against

Transnational Organized Crime and the Protocols
Thereto
• The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and
Children
HUMAN • The Protocol against the Smuggling of Migrants
by Land, Sea and Air
TRAFFICKING
Smuggling of
Migrants

International fight
Refugees against illicit drugs and
IL international crime.
Human Trafficking
TrafficKing
Trafficking
Why prevent irregular migration?
 to avoid exploitation of irregular migrants by employers, smugglers
and traffickers
 to prevent the existence of a marginalised group in society thus
contributing to social cohesion and stability
 to ensure that migration is “managed” and the credibility of legal
immigration policies
 to ensure satisfactory salary levels and working conditions for
national workers and lawfully resident migrant workers, which are
undermined by the employment of irregular migrants
 to avoid the existence of whole sectors /businesses dependent on
irregular migrant labour
 SCOPE OF TRAFFICKING
IN PERSONS
It is believed that 700,000 to 2 Million
women and children are trafficked across International
borders every year.

The UN estimates that 4 Million people in total are

trafficked across borders and within states every year.
CAUSES OF TRAFFICKING
• Unemployment and underemployment, poverty and lack of access to education,
all contribute to women seeking either overseas work or employment in
dangerous sectors

• The scarcity of legitimate migration options for women leads them to seek other
means of migration, so that they can provide for themselves and their families

• Inequalities between men and women and gender stereotypes that sexualise
vulnerable women

• Natural disasters and wars lead to homelessness, loss of jobs, and economic
downturn, pushing women into more undesirable sorts of work

• Violence against women, including domestic violence, which makes women seek
ways to leave their home country to find safety and security elsewhere

• The low risk, high-profit nature of trafficking makes it attractive to criminals

ABUSES
Trafficked men, women and children may experience the most horrifying abuses:
 Rape
 Physical abuse, including beatings with weapons
 Threats and violence against them and their family
 Verbal abuse
 Imprisonment
 Little or no access to health care
 Minimal food and of poor quality
 Dirty and cramped living conditions
 Forced abortions
 Forced use of drugs and alcohol
Trafficked women and children are kept in an environment of fear, and are thus vulnerable to
being exploited by pimps, corrupt immigration officials and police, and the men who create
the demand for prostitutes.
What is Human Trafficking?

• Human Trafficking = the act of tricking, luring, or forcing a

person into leaving their home to work for little or no payment.

• Modern day slavery.

• People are bought, sold, and traded.

How is this done?
• Tricked
– Promised a “better life”
– “Help” immigrating

• Lured
– Fake jobs
– No negative aspects

• Forced
– Kidnapped
– Beaten
– Raped
What are they made to do?

• Prostitution
– Brothels

• Forced labor
– Sweat shops
– Commercial agricultural
– Domestic situations
– Construction sites
Conditions
• Rarely fed, washed, no medical attention

• Beaten, raped, drugged.

• Passports confiscated

• Fear
TRAFFICKING vs SMUGGLING
HUMAN TRAFFICKING
 Victims either do not consent to their situations, or if they initially consent, that
consent is rendered meaningless by the actions of the traffickers
 Ongoing exploitation of victims to generate illicit profits for the traffickers
 Trafficking need not entail the physical movement of a person (but must entail
the exploitation of the person for labour or commercial sex).

MIGRANT SMUGGLING
 Migrant smuggling includes those who consent to being smuggled
 Smuggling is a breach of the integrity of a nation’s borders
 Smuggling is always transnational.
• Trafficking is …
A Crime against the Individual

• Smuggling is…
A Crime against the State
International responses: a brief chronology
 1970s
 UN Resolutions against migrant smuggling /trafficking
 ILO Convention No. 143 of 1975

 1980s - 1990
 UN Migrant Workers Convention drafted (adopted 18 December
1990; entry into force 1 July 2003)

 2000
 UN International Convention against Transnational Organised
Crime and Palermo Protocols
 United Nations Convention Against Transnational Organized Crime

 Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children (2000)

 The Protocol was adopted by General Assembly resolution 55/25. It entered

into force on 25 December 2003.
 Signatories : 117. Parties : 175
– Spain13 Dec 2000 , 1 Mar 2002
Bangladesh Palau 2019
2019 Not parties: Bhutan Brunei Comoros Congo, Republic of
Iran Korea (DPRK) Korea, Republic of, Marshall Islands Nepal Pakistan Papua New
Guinea Solomon Islands Somalia South Sudan Sri Lanka Tonga Uganda Yemen
 United Nations Convention Against Transnational Organized
Crime, 2000. Protocol

 Protocol Against the Smuggling of Migrants by Land, Sea and Air

(2000)
 The Protocol was adopted by General Assembly resolution 55/25, entered
into force on 28 January 2004.

 Status : Signatories : 112. Parties : 149

 Spain 13 Dec 2000 1 Mar 2002

 2018: Sudan
 2019 Gabon, Palau
The Causes of smuggling
• Poverty, unemployment, and lack of opportunities

• Political and humanitarian crises

• In many less developed regions of the world, children are entrusted to more
affluent friends or acquaintances with the intention to improve their lives and
relieve their families of economic burden

• Demand for inexpensive labour

• Restrictive immigration policies in traditional countries of destination

• Criminal networks and transnational organized crime

The Smuggling process
Transfer

Agreement with the smuggler

(consent) Destination
BORDER

SMUGGLING END OF RELATION WITH

SMUGGLER

(Eventual Transit Country)

The Concept
• While, by definition, migrants cooperate with their smugglers – even
seeking them out and paying them—the act of smuggling can often
be a dangerous and abusive one.

• Smuggling operations have many of the following

characteristics:

• a broad transnational reach

• networks of service providers to help in various stages of the operations influence
on government officials at many levels
• access to large sums of money at many locations
• ties with other criminal enterprises
• the ability to shift areas of operation according to "market" conditions
• an association with persons capable of violence within their networks
Deaths

• On 3 October 2013, over 360 people lost their lives travelling from Libya to Lampedusa, Italy,
when their boat sank just a quarter-mile from its destination.

• With roughly 500 passengers jammed into a 20-metre-long boat, efforts to attract attention
following engine trouble led to a fire that engulfed the ship in flames.

• A second shipwreck near Lampedusa later in the month resulted in a further 34 deaths…

……Since then
Smuggling on migrants

• The Protocol against the Smuggling of Migrants by Land, Sea

and Air, (General Assembly resolution 55/25, entry into force
28 January 2004)

• 25 arts. Preamble, General Provisions,

• II. Smuggling of migrants by sea (7-9);
• Prevention, cooperation and other measures (10- 18),
• Final provisions
Smuggling on migrants
• It deals with the growing problem of organized criminal groups who
smuggle migrants, often at high risk to the migrants and at great profit for
the offenders.

• A major achievement of the Protocol was that, for the first time in a global
international instrument, a definition of smuggling of migrants was
developed and agreed upon.

• The Protocol aims at preventing and combating the smuggling of migrants,

as well as promoting cooperation among States parties, while protecting
the rights of smuggled migrants and preventing the worst forms of their
exploitation which often characterize the smuggling process.
Smuggling Definition

 Article 3 of the Protocol AGAINST THE SMUGGLING OF

MIGRANTS BY LAND, SEA AND AIR

 (a) “Smuggling of migrants” shall mean 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;

 (b) “Illegal entry” shall mean crossing borders without complying with the
necessary requirements for legal entry into the receiving State;
Scope of the Protocol

 To prevent and combat smuggling in persons

 To respect the Human Rights of smuggled migrants

 Investigation and prosecution

 To promote cooperation
The Protocol against the Smuggling of Migrants by
Land, Sea and Air
It Requires States to:
 Criminalise smuggling
 Co-operate to prevent smuggling
 Strengthen border controls to detect smuggling
 Address root causes
 Appropriate measures to “preserve and protect” rights
 Cooperate in return
Non-criminalisation of migrants

• Art. 5 Criminal liability of migrants

• Migrants shall not become liable to criminal prosecution

under this Protocol for the fact of having been the object of conduct
set forth in article 6 of this Protocol.
Criminalisation of smugglers
• Art 6

• Each State Party shall adopt such legislative and other

measures as may be necessary to establish as criminal
offences, when committed intentionally and in order to
obtain, directly or indirectly, a financial or other
material benefit:
• (a) The smuggling of migrants;
• (b) When committed for the purpose of enabling the smuggling of migrants:
• (i) Producing a fraudulent travel or identity document;
• (ii) Procuring, providing or possessing such a document;
• (c) Enabling a person who is not a national or a permanent resident to remain
in the State concerned without complying with the necessary requirements
for legally remaining in the State by the means mentioned in subparagraph (b)
of this paragraph or any other illegal means.
Criminalisation of smugglers
• (a) The smuggling of migrants;
• (b) When committed for the purpose of enabling the smuggling of
migrants:
• (i) Producing a fraudulent travel or identity document;
• (ii) Procuring, providing or possessing such a document;
• (c) Enabling a person who is not a national or a permanent resident
to remain in the State concerned without complying with the
necessary requirements for legally remaining in the State by the
means mentioned in subparagraph (b) of this paragraph or any other
illegal means.
• Actions:
• Participating as an accomplice in an offence (…)
• Organizing or directing other persons to commit an offence
Aggravating Circumstances
• Circumstances:

• That endanger, or are likely to endanger, the lives or safety of the migrants
concerned; or

• That entail inhuman or degrading treatment, including for exploitation, of such

migrants.
Prevention, cooperation and other measures:

 Information
 Border measures
 Security and control of documents
 Legitimacy and validity of documents
 Training and technical cooperation
 Protection and assistance measures
 Agreements and arrangements
 Return of smuggled migrants
Protection

• Each State Party shall take, all appropriate measures, including

legislation if necessary, to preserve and protect the rights of
persons, in particular the right to life and the right not to
be subjected to torture or other cruel, inhuman or
degrading treatment or punishment.

• Each State Party shall take appropriate measures to afford

migrants appropriate protection against violence
Protection

• Each State Party shall afford appropriate assistance to

migrants whose lives or safety are endangered

• States Parties shall take into account the special needs of

women and children

• In the case of the detention each State Party shall informe the
person concerned without delay about the provisions
concerning notification to and communication with consular
officers.
Return
• Return of smuggled migrants

 Each State Party agrees to facilitate and accept, without undue or

unreasonable delay, the return of a person who is its national or
who has the right of permanent residence in its territory at the
time of return.

 Each State Party shall consider the possibility of facilitating and

accepting the return who had the right of permanent residence in
its territory at the time of entry into the receiving State in
accordance with its domestic law.
Return

 a requested State Party shall, verify whether a person is its national

or has the right of permanent residence in its territory.

 In order to facilitate the return of a person who is without proper

documentation, the State Party of which that person is a national or
in which he or she has the right of permanent residence shall agree
to issue, at the request of the receiving State Party, such travel
documents

 Each State Party involved with the return of a person shall take all
appropriate measures to carry out the return in an orderly
manner and with due regard for the safety and dignity of the
person.
Prevention and Root Causes
 Each State Party shall take measures to ensure that it provides or
strengthens information programmes to increase public
awareness of the fact that smuggling is a criminal activity frequently
perpetrated by organized criminal groups for profit and that it poses
serious risks to the migrants concerned.

 States Parties shall cooperate in the field of public information for

the purpose of preventing potential migrants from falling victim
to organized criminal groups.

 Each State Party shall promote or strengthen, as appropriate,

development programmes and cooperation at the national,
regional and international levels, taking into account the socio-
economic realities of migration and paying special attention to
economically and socially depressed areas
Smuggling of migrants by sea
• States Cooperation
– States Parties shall cooperate to the fullest extent possible to prevent
and suppress the smuggling of migrants by sea, in accordance with the
international law of the sea
• Measures against the smuggling of migrants by sea
– A State Party that has reasonable grounds to suspect that a vessel that is flying its flag
or claiming its registry, that is without nationality or that ,though flying a foreign flag or
refusing to show a flag, is in reality of the nationality of the State Party concerned is
engaged in the smuggling of migrants by sea may request the assistance of other States
Parties in suppressing the use of the vessel for that purpose.

– The States Parties so requested shall render such assistance to the extent possible
within their means.
Legal Brief on International Law and Rescue at Sea
• United Nations Convention on the Law of the Sea, 1982,
Article 98 Duty to render assistance

• International Convention on Maritime Search and Rescue

(SAR Convention), 1979, as amended

• International Convention for the Safety of Life at Sea

(SOLAS), 1974, as amended, chapter V, regulation 33
Legal Brief on International Law and Rescue at Sea
• Is there an obligation to provide assistance to persons in
distress at sea?

• Whose responsibility is it?

• Obligation to provide assistance to persons in distress at sea:

Responsibility of the shipmaster

• Obligation to establish search and rescue centers

(Responsibilities and preparedness) States
Legal Brief on International Law and Rescue at Sea
United Nations Convention on the Law of the Sea, 1982, Article 98 Duty to
render assistance
• 1. Every State shall require the master of a ship flying its flag, in so far as he can
do so without serious danger to the ship, the crew or the passengers:

– (a) to render assistance to any person found at sea in danger of being lost;
– (b) to proceed with all possible speed to the rescue of persons in distress, if informed of
their need of assistance, in so far as such action may reasonably be expected of him;
– (c) after a collision, to render assistance to the other ship, its crew and its passengers
and, where possible, to inform the other ship of the name of his own ship, its port of
registry and the nearest port at which it will call.

• 2. Every coastal State shall promote the establishment, operation and

maintenance of an adequate and effective search and rescue service
regarding safety on and over the sea and, where circumstances so require, by
way of mutual regional arrangements cooperate with neighboring States for this
purpose.
Legal Brief on International Law and Rescue at Sea
• Obligation to establish search and rescue centers
(Responsibilities and preparedness) (The International
Convention for the safety of life at sea, Chapter 5, Reg 7, The
International Convention on maritime search and rescue,
Chapter 1.3.2, as amended)

• Governments should ensure that their respective rescue co-

ordination centers (RCCs) and other national authorities
concerned have sufficient guidance and authority to fulfil their
duties
Legal Brief on International Law and Rescue at Sea
• SOLAS - chapter V (Safety of Navigation) – obligates the
masters to provide assistance to any person in distress at
sea, regardless of nationality or status of that person, and
mandates Contracting Governments to co-ordinate and co-
operate in assisting the ship's master to deliver persons
rescued at sea to a place of safety; and adds a new
regulation on master's discretion.
• SAR - Annex to the Convention – obligate parties to assist
the master in delivering persons rescued at sea to a place of
safety and requires appropriate operating procedures for
maritime rescue co- ordination centres to initiate the process
of identifying the most suitable places for disembarking
persons found in distress at sea.
Legal Brief on International Law and Rescue at Sea
• A place of safety (as referred to in the Annex to the 1979
SAR Convention, paragraph 1.3.2) is a location where rescue
operations are considered to terminate.
– It is also a place where the survivors safety of life is no longer
threatened and where their basic human needs (such as food, shelter
and medical needs) can be met.
– Further, it is a place from which transportation arrangements can be
made for the survivors. next or final destination.
• Governments should co-operate with each other with regard to providing
suitable places of safety for survivors after considering relevant factors
and risks.
• The need to avoid disembarkation in territories where the lives and
freedoms of those alleging a well-founded fear of persecution would be
threatened is a consideration in the case of asylum-seekers and refugees
recovered at sea.
HUMAN TRAFFICKING

STOP SLAVERY!
 IT’S ABOUT
SELLING PEOPLE!!!
– WOMEN
– MEN
– TEENAGERS
– CHILDREN
DEFINITION OF TRAFFICKING
• “Trafficking in persons” shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or
use of force of 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 the 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 to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children

 The purposes of this Protocol are (art. 2)

 (a) To prevent and combat trafficking in persons, paying particular attention to

women and children;

 (b) To protect and assist the victims of such trafficking, with full respect for
their human rights;

 (c) To promote cooperation among States Parties in order to meet those

objectives.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children

 The Protocol gives, for the first time, a detailed and comprehensive definition of
trafficking.

 The Protocol applies to all people, but particularly women and children, since
Member States have recognized their specific vulnerability.

 It offers tools in order to empower law enforcement and strengthen border control

 The Protocol integrates this by also strengthening the response of the judiciary

 The main goal is to catch and prosecute the trafficker, yet at the same time protect
the victim. Assistance to victims is crucial to law enforcement, since he/she can
provide for the evidence necessary to successfully prosecute the trafficker.
Scope of the Protocol

 To prevent and combat trafficking in persons

 To protect and assist victims

 To respect the Human Rights of Victims

 To prevent, investigate and prosecute

 To promote cooperation
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Trafficking in persons
 Agreement for the Suppression of the ‘White Slave Traffic’ 1904
(the 1904 Agreement) and later, the International Convention for the
Suppression of the White Slave Traffic 1910.

 Slavery Convention 1926

 Convention Concerning Forced or Compulsory Labour 1930

 Convention for the Supression of Trafficking in Persons and the

exploitation of the Prostitution of Others 1949

 UN Convention Against Transnational Organized Crime + Protocols

(entered into force in 2003)
Trafficking – UN Protocol
Trafficking in Persons:
• The recruitment, transportation, transfer, harboring or receipt of persons, by
means of threat, use of force or other means of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the
receiving or giving of payment… to 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 labour or services, slavery or
practices similar to slavery, servitude or the removal of organs.
(UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and
Children)
The Trafficking process
Recruitment

Transfer

EXPLOITATION EXPLOITATION

COERCION
DECEPTION
ABUSE OF POWER
Place of Origin Place of Destination
Trafficking Process
• PROCESS:

• The recruiting or harboring or moving or obtaining a Person

• THE MEANS:
– by force
or fraud
or coercion

• PURPOSES: EXPLOITATION
– involuntary servitude,
– debt bondage
– Slavery….
Consent
• The consent of a victim of trafficking in persons to the
exploitation shall be irrelevant where any of the means of
force, threat of, coercion, deception, have been
used.(art.3b)

• 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 the definition of
trafficking in persons. (art. 3c)
Means: Force and coercion
• There is always a point in the trafficking chain at which
people are subjected to force or coercion: when they are
recruited, during transportation, upon entry or during
work.

• Both overt and subtle forms of coercion are used, such as

the confiscation of papers, non-payment of wages, induced
indebtedness or threats to denounce irregular migrant
workers to authorities if they refuse to accept the working
conditions.
Means: Fraud, deception, abuse of power

• It is absolutely irrelevant if the victim apparently voluntarily entered

or stayed in a situation or conditions of labour exploitation if they
were put in that situation through the use of threats, force, coercion,
abduction, deception or fraud or by an abuse of power or an abuse of
their own position of vulnerability.

• Most of these concepts will already be clear in national law however

coercion and abuse of power/vulnerability are unlikely to be
– The “abuse of a power or of a position of vulnerability” contained in Article 3
of the Protocol is understood to refer to any situation in which the person
involved has no real and acceptable alternative but to submit to the abuse
involved.
PURPOSE: Exploitation
• The Protocol makes reference to some specific forms of
exploitation:
– sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs

• however the list is not exhaustive and it may include other forms as
well.

• The choice made was to extend as much as possible the definition of

trafficking in persons to include any possible – known or still
unknown – form of exploitation.
PURPOSE: Exploitation
• The Protocol does not define any of the mentioned forms of
exploitation related to forced labour.
• But a definition for each of them can be found in the relevant
international convention.

• Article 2, paragraph 1 of ILO Forced Labour Convention, 1930 (No.

29) defines forced labour as “all work or service which is exacted
from any person under the menace of any penalty and for which the
said person has not offered himself voluntarily”.
PURPOSE: Exploitation

• The concept of forced labour as defined by ILO Convention 29

comprises three basic elements:
– a. the activity exacted must be in the form of work or service;
– b. the menace of a penalty
– c. it is undertaken involuntarily by the victim

• Criminal law often does not place the emphasis on coercion, and often have rather
subjective criteria as to what constitutes forced labour.
• It is however important to underline that simply poor working conditions do not
alone constitute forced labour, there must be an element of intention to exploit.
• with the Protocol the focus was broadened and so was the understanding of what
forced labour is – now it is shown that 80% of forced labour is in the private
sector.
PURPOSE: Exploitation

• Trafficking violates the most basic rights of any person in relation to

a work situation – the freedom from coercion at work, the freedom
to set up associations and bargain collectively, and the freedom from
discrimination at work.

• Further trafficking of children has been defined by the ILO as one of

the worst forms of child labour, which seriously harms the
development of the child.
PURPOSE: Exploitation

Slavery and servitude

• The 1957 Supplementary Convention on the Elimination of Slavery,

Slave Trade, and Institutions and Practice Similar to Slavery defines
Slavery as “the status or condition of a person over whom any or all
of the powers attaching to the rights of ownership are exercised”
PURPOSE: Exploitation
• Slavery and Servitude

The Supplementary Convention, art. 1(c) defines marriage as

a form of slavery in certain cases.
“Any institution or practice, whereby (i) a woman, without the right to
refuse, is promised or given in marriage on payment of a consideration
in money or in kind to her parents, guardian, family or any other
person or guys, (ii) the husband of a woman, his family, or his clan has
the right to transfer her to another person for value received or
otherwise, or (iii) a woman on the death of her husband is liable to be
inherited by another person”
PURPOSE: Exploitation
Slavery and servitude
It should be underlined that slavery according to this definition can occur regardless
of whether the victim receives remuneration. This is particularly relevant when
traffickers try to avoid prosecution paying their victims thus trying to render the
offence less evident.

According to Art 1 of the Supplementary Convention on Slavery States Parties have

to adopt all the measures to abolish
1) debt bondage: the status or condition arising from a pledge by a debtor of his
personal services or those of a person under his control as security for a debt if
the value of those services as reasonably assessed is not applied towards the
liquidation of the debt or the length and nature of those services are not
respectively limited and defined;
2) Serfdom the condition or status of a tenant who is by law, custom or agreement
bound to live and labour on land belonging to another person and to render some
determinate service to such other person, whether for reward or not, and is not
free to change his status.
PURPOSE: Exploitation
Slavery and servitude
• Both the Universal Declaration of Human Rights of 1948, art. 4, and the
International Covenant on Civil and Political Rights of 1966, art. 8(2) state that no
person shall be held in servitude, but neither of them defines the term.

• Servitude has been interpreted to be broader than slavery. An early draft of the
Protocol (7th revised draft) defined servitude in the context of trafficking as: “The
condition of a person who is unlawfully compelled or coerced by another to render
any service to the same person or to others and who has no reasonable alternative
but to perform the service, and shall include domestic service and debt-bondage.”

• The Travaux Préparatoires to the ICCPR Art. 8 on slavery and servitude clarifies
that while slavery was narrowly defined servitude was considered to be applicable
to all conceivable forms of dominance and degradation of human beings by human
beings.
PURPOSE: Exploitation

• Trafficking may then be treated as slavery simultaneously mainly

when people are exploited afterwards by the traffickers themselves –
or the same organisation – as this ensures the continuous exercise of
the right of ownership.

• The duration of the suspected exercise of powers attaching to the

right of ownership is another factor that may be considered when
determining whether someone was enslaved.
PURPOSE: Exploitation
• Sexual exploitation
– In 1949 the Convention for the Suppression of the Traffic in Persons and the
Exploitation of the Prostitution of Others was adopted.

– Neither “exploitation of the prostitution of others” nor “other forms of sexual

exploitation” is defined in the Palermo Protocol, partly due to the discussion
taking place regarding prostitution and the possibility of prostitution not
always amounting to exploitation.

– The Travaux Préparatoires mentions that the Protocol addresses the

exploitation of prostitution and other forms of sexual exploitation only in the
context of trafficking in persons
PURPOSE: Exploitation

• Removal of Organs
• There is no definition of what constitute removal of organs, but the
Travaux Préparatoires and the UNODC Legislative Guide explain
that the removal of organs from a child with the consent of a parent
or guardian for legitimate medical or therapeutic reasons is out of
the scope of the Protocol.
Women and Children

• Admittedly, looking at the numbers reported, trafficking in women

and children is a big problem, but the prominent focus on the
trafficking of women over men arguably has links to assumptions
about gender and, in particular, a generalized notion of female
vulnerability.

• That is, many female migrants are conceptualized as trafficked while

male migrants are seen more commonly as irregular migrants.
Women and Children

• Most identified human trafficking victims have been women and children who
seem to be particularly vulnerable to sexual exploitation and the identification of
male victims who might be expected to be trafficked for forced labour purposes
has not been successful in many countries.

• Far fewer sources have identified either male victims or victims who have been
subjected to forced labour, when the popular perception, at least, is that it is men
especially who might be expected to be trafficked for forced labour purposes.

• One reason for the low numbers of reported cases involving forced labour and
male victims is connected to trafficking legislation which, in many countries, is
restricted only to sexual exploitation
Women and Children

• The focus on women and children obviously is funded in three main

factors:
– that these two groups are considered more vulnerable in general;
– that statistics underpin the need for this focus;
– that trafficking is often linked to sexual exploitation even if trafficking is actually also
for other forms of exploitation.

• There is a concrete and urgent need to protect these two groups of

victims, it is important not to create an invisible group of trafficked
persons – both in reality and in research
Criminal Law

• Is criminal law and human rights law linked?

• Rule of law
• Protection
• Prosecution
• Wictims/witness rights
Criminal Law

• Trafficking and smuggling are criminal justice issues.

• They affect territorial integrity because they involve the facilitation of crossing of
borders and remaining in a State in violation of national criminal and immigration
laws.

• Trafficking and smuggling also undermine the rule of law and political foundation
of States, because traffickers and smugglers such as organised criminal groups
resort to violence and corruption as means to advance their business
Criminal Law

• The act of trafficking and the exploitation of their labour expose

victims to a variety of criminal acts including deprivation of liberty,
theft of identity documents, sexual, physical and psychological
abuse and blackmail (threats to inform relatives or police about the
victims’ activity).

• Trafficking is itself a breach of the laws of many, if not most, states.

Criminal Law
• The lack of specific legislation against trafficking in persons is
arguably the most serious obstacle in countering the crime.

• In the absence of legislation, it is very difficult to punish human

trafficking and bring the traffickers to justice.

• However, even where provisions against trafficking in persons exist

under national law, these often cover only parts of the crime in
trafficking in persons as defined in the UN Protocol.
Criminal Law

• Offenders:

Article 2 and 3 of the TOC determines who can be prosecuted:

2(a)

Organized criminal group shall mean a structured group of three or

more persons, existing for a period of time and acting in concert with
the aim of committing one or more serious crimes or offences
established by the Convention or Trafficking Protocol, in order to
obtain, directly or indirectly, a financial or other material benefit
Criminal Law

• An offence is transnational in nature if:

– (a) It is committed in more than one State;

– (b) It is committed in one State but a substantial part of its preparation,
planning, directing or control takes place in another State;
– (c) It is committed in one State but involves an organized criminal group that
engages in criminal activities in more than one State; or
– (d) It is committed in one State but has substantial effects in another State.
Criminal Law
• Internal Trafficking:
• Discussion as to whether the Protocol is applicable to internal trafficking since
it does not – contrary to the Smuggling Protocol – mention borders in its
definition.

• During the drafting stage of the Protocol, a discussion arose as to whether or

not trafficking should be confined to international movements.

• All drafts of the Protocol refer to “international trafficking”

• It has however to be taken into consideration that the Protocol is a protocol to

the Convention on International Organised Crime and therefore cannot be seen
outside the scope of this Convention. But the Convention and the Protocol
must be interpreted together
Criminal Law
• Victim Centred Criminal Law Approach

– A victim-centred criminal justice response to trafficking is most effective in

terms of achieving a successful prosecution of the traffickers and protecting
and supporting the human rights of the trafficked victim.

– Prioritising the well-being of the trafficked victim and their recovery from a
trafficking ordeal is compatible with achieving the desired results in a criminal
prosecution.

• Balance defence and prosecutor’s rights in trial

Criminal Law

• Related offences:

– Trafficking is often only one of the crimes committed against

trafficked persons.

– Other crimes may be committed to ensure the compliance of

victims, maintain control, protect trafficking operations or
maximize profits
A crime against humanity?
ICC Statute Article 7
• Crimes against humanity: For the purpose of this Statute, "crime against humanity" means any of the
following acts when committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack:(a) Murder;(b) Extermination;(c) Enslavement;(d) Deportation or forcible transfer of
population;(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;(f) Torture;(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity;(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds
that are universally recognized as impermissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court;(i) Enforced disappearance of persons;(j) The crime of
apartheid;(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to
.
body or to mental or physical health

• (2)(c) defined enslavement as “the exercise of any or all of the

powers attaching to the right of ownership over a person and
includes the exercise of such powers in the course of trafficking in
persons, in particular women and children”.
Human Rights Law
• Human rights issues are not only a concern upon arrival of the trafficked person
but also during the transportation.

• Instances of torture, inhuman and degrading treatment are common during the
process and many traffickers as well as smugglers and in some cases border
officials may use physical or sexual violence as a means to demand payment for
their services

• Upon arrival restriction of movement, work conditions, consequences of racisms

and law enforcement practices such as detention centres, repatriation and rights
linked to legal processes are some of the issues with a human rights aspect in the
trafficking context
Protection of victims of trafficking in persons Article 6

• Assistance to and protection of victims of trafficking in

persons

– 1. In appropriate cases and to the extent possible under its domestic

law, each State Party shall protect the privacy and identity of victims of
trafficking in persons, including, inter alia, by making legal proceedings
relating to such trafficking confidential.
Human Rights Law: Palermo Protocol
• Article 6.2 states that Each State Party shall ensure that its domestic legal or
administrative system contains measures that provide to victims of trafficking in
persons, in appropriate cases:
– (a) Information on relevant court and administrative proceedings;
– (b) Assistance to enable their views and concerns to be presented and considered at appropriate
stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the
defence

• art. 6.3 requires that states consider implementing measures to provide for the
“physical, psychological and social recovery of victims of trafficking in persons
(…) in particular the provision of:
– (a) Appropriate housing,
– (b) Counselling and information, in particular as regards their legal rights (…)
– (c) medical, psychological and material assistance; and
– (d) employment, education and training opportunities
Protection of victims of trafficking in persons Article 6

– 4. Each State Party shall take into account, in applying the provisions
of this article, the age, gender and special needs of victims of
trafficking in persons, in particular the special needs of children,
including appropriate housing, education and care.

– 5. Each State Party shall endeavour to provide for the physical safety
of victims of trafficking in persons while they are within its territory.

– 6. Each State Party shall ensure that its domestic legal system
contains measures that offer victims of trafficking in persons the
possibility of obtaining compensation for damage suffered.
Human Rights Law
• Four years after the adoption of the Protocol the Legislative Guide
intervened on the discretionary character of many of the provisions
dealing with the protection of victims and clarified the issue of some
of these measures being mandatory while others are only optional.

• The Protocol's comprehensive prevention policy also includes

activities to prevent re-victimization, research, information
campaigns, social and economic initiatives, and cooperation with
civil society
Human Rights Law
• Other Relevant Instruments
– International Convention on the Elimination of all forms of Racist
Discrimination (1966)

– International Convention on the Elimination of All form of Discrimination

Against Women (1979)

– The Convention on the Rights of the Child (1989)

– ILO Convention 182 on the Worst Forms of Child Labour (1999)

– Convention on the Rights of All Migrant Workers and Their Families (1990)

– In some cases The UN Refugee Convention - 1951

Human Rights Law
• Other Relevant Instruments
 International Convention on the Elimination of All form of Discrimination
Against Women (1979)

• Article. 6: States Parties shall take all appropriate measures, including legislation,
to suppress all forms of traffic in women and exploitation of prostitution of
women.
• But also other articles not specifically on trafficking are relevant

– Article 5: States Parties shall take all appropriate measures: (a) To modify the social
and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are based on the
idea of the inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women;
– Equality in Education – article 10
– Participation (art. 7) and non-discrimination in general (also article 14 on rural women)
Human Rights Law
• Other Relevant Instruments
– The Convention on the Rights of the Child (1989)

• Art 35 : “States Parties shall take all appropriate, national, bilateral and
multilateral measures to prevent the abduction of, the sale of or traffic in children
for any purpose or in any form”.

• The article does not elaborate the terms but the words “for any purpose or in any
form” suggest that it is to be interpreted broadly.

• The responsibility for taking measures to avoid trafficking is placed clearly on the
State, which implies a State responsibility if it does not succeed in prosecuting
offenders, thus making the international obligation applicable at the “trafficker-
level”
Human Rights Law
• Other Relevant Instruments
– The Convention on the Rights of the Child (1989)

– Trafficking in children is a violation of a number of rights:

– It is a violation of the child’s right to education (Art. 28/29);
– to health (Art. 24);
– to family life (Art. 9);
– to leisure and play (Art. 31);
– of the right to be protected against exploitation (economic Art.32; sexual
Art.34);
– the right to life Art 6.1 and to survival and development Art 6.2; the right to
protection from discrimination and punishment Art. 2.2 and from physical and
mental violence, Art 19; and the right to participation
Human Rights Law
• Other Relevant Instruments
– The Convention on the Rights of the Child (1989)

• OP II Article 3, which provides that States Parties shall

ensure the definition of the following acts as a crime,
irrespective of whether they are committed domestically or
trans-nationally, on an individual or organised basis: Offering,
delivering or accepting, by whatever means, a child for the
purpose of Sexual exploitation of the child; Transfer of
organs of the child for profit; Engagement of the child in
forced labour.
Human Rights Law
• UN Migrant Worker Convention

– Art. 68 obliges States Parties to collaborate for the purpose of preventing and
eliminating illegal or clandestine movements as well as the employment of
migrants who are in an irregular situation

– The Convention protects migrants in the entire migration process

Human Rights Law
• ICCPR and ICESCR
– The two major general Human Rights Instrument are also valid for victims of
trafficking
– Trafficking is also about protecting from victimisation in the county of origin
– Respect for human rights is needed both in countries of origin and in countries
of destination and transit

• The United Nations High Commissioner for Human Rights has developed
Recommended Principles and Guidelines on Human Rights and Human
Trafficking (E/2002/68/Add.1), which provide an important framework
guiding the criminalization of trafficking in persons and the development of
a legislative framework.
Conclusions

• Concept of trafficking is NOT a human rights concept

• A CRIMINAL law concept with a human rights aspect

• Human rights must be included and the two fields of law interact
and overlap – as does other fields of law (migration, labour, social
welfare)

• So trafficking is a crime but also a violation of human rights

 Spanish Criminal Law
• Human trafficking, as set out in the current Criminal Code is a clear crime
against the freedom of the people that occurs when one or more
persons, taking advantage of a condition of superiority, try to obtain an
economic benefit. Follows UN Protocol…

• Title VII bis De la trata de seres humanos Artículo 177 bis

• 1. Será castigado con la pena de cinco a ocho años de prisión como reo de trata de seres humanos el que, sea en territorio
español, sea desde España, en tránsito o con destino a ella, empleando violencia, intimidación o engaño, o abusando de una situación
de superioridad o de necesidad o de vulnerabilidad de la víctima nacional o extranjera, o mediante la entrega o recepción de pagos o
beneficios para lograr el consentimiento de la persona que poseyera el control sobre la víctima, la captare, transportare, trasladare,
acogiere, o recibiere, incluido el intercambio o transferencia de control sobre esas personas, con cualquiera de las finalidades siguientes:
a) La imposición de trabajo o de servicios forzados, la esclavitud o prácticas similares a la esclavitud, a la servidumbre o a la
mendicidad.
b) La explotación sexual, incluyendo la pornografía.
c) La explotación para realizar actividades delictivas.
d) La extracción de sus órganos corporales.
e) La celebración de matrimonios forzados.
 Spanish Criminal Law
• Title VII bis De la trata de seres humanos Artículo 177 bis
2. Aun cuando no se recurra a ninguno de los medios enunciados en el apartado anterior, se considerará trata de seres
humanos cualquiera de las acciones indicadas en el apartado anterior cuando se llevare a cabo respecto de menores de edad
con fines de explotación

3. El consentimiento de una víctima de trata de seres humanos será irrelevante cuando se haya
recurrido a alguno de los medios indicados en el apartado primero de este artículo .
11. Sin perjuicio de la aplicación de las reglas generales de este Código, la víctima de trata de
seres humanos quedará exenta de pena por las infracciones penales que haya cometido en la situación de
explotación sufrida, siempre que su participación en ellas haya sido consecuencia directa de la situación de
violencia, intimidación, engaño o abuso a que haya sido sometida y que exista una adecuada proporcionalidad
entre dicha situación y el hecho criminal realizado.

any victim of human trafficking shall be free from any responsibility for possible
criminal offenses that may have been committed under this situation, provided
"there is an adequate proportionality between said situation and the crime
committed"
 Spanish Criminal Law
• Title VII bis De la trata de seres humanos Artículo 177 bis
2. Aun cuando no se recurra a ninguno de los medios enunciados en el apartado anterior, se considerará
trata de seres

There are specific circumstances that will be considered as aggravating factors and will entail
the imposition of more severe sentences, either in the form of professional disqualification, a fine,
jail time or a combination of them:

– When the author of the facts has benefited from it from his status as an authority, agent of the latter or a
public official.
– When the perpetrator is part of an association or organization dedicated specifically to trafficking in
persons.
– The chiefs, administrators or managers of such organizations or associations, will also receive more
severe penalties.
– In cases where the guilty person turns out to be a legal entity (company) "the penalty of a fine of three
times to five times the profit obtained" will be imposed.
– In addition, convictions abroad for a crime of this nature, will be taken into account in Spain for purposes
of recidivism, which will also lead to more severe penalties.
 Spanish Criminal Law

• 8. La provocación, la conspiración y la proposición para cometer el delito de trata de seres

humanos serán castigadas con la pena inferior en uno o dos grados a la del delito
correspondiente.

• 6. Se impondrá la pena superior en grado a la prevista en el apartado 1 de este artículo e

inhabilitación especial para profesión, oficio, industria o comercio por el tiempo de la
condena, cuando el culpable perteneciera a una organización o asociación de más de
dos personas, incluso de carácter transitorio,
UNODC
• United Nations Office on Drugs and Crime was established in
1997 through a merger between the United Nations Drug
Control Programme and the Centre for International Crime
Prevention

• UNODC operates in all regions of the world through an

extensive network of field offices.
• UNODC relies on voluntary contributions, mainly from
Governments, for 90 per cent of its budget.
UNODC
• UNODC is a global leader in the fight against illicit drugs and
international crime.

• UNODC is mandated to assist Member States in their struggle

against illicit drugs, crime and terrorism.

• In the Millennium Declaration, Member States also resolved to

intensify efforts to fight transnational crime in all its
dimensions, to redouble the efforts to implement the
commitment to counter the world drug problem and to take
concerted action against international terrorism
UNODC
• The three pillars of the UNODC work programme are:

– Field-based technical cooperation projects to enhance the capacity of

Member States to counteract illicit drugs, crime and terrorism

– Research and analytical work to increase knowledge and

understanding of drugs and crime issues and expand the evidence
base for policy and operational decisions

– Normative work to assist States in the ratification and implementation

of the relevant international treaties, the development of domestic
legislation on drugs, crime and terrorism, and the provision of
secretariat and substantive services to the treaty-based and governing
bodies
• .
UNODC
UNODC on human trafficking and migrant smuggling
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