Trafficking in human beings: human rights and ... - unesdoc - Unesco

victims are identifi ed and protected and few perpetrators prosecuted. Reasons include the
newness of the legislation, 402 lack of conceptual clarity, resources as well as political will
making the fi ght against this form of traffi cking a priority, the disproportionate focus on
combating irregular migration and on the irregular status of the victims rather than on the
conditions to which they are subjected, and the lack of assistance and protection services
for victims. 403 Laws and administrative regulations may leave enforcement authorities with
uncertainty as to where to draw the line between traffi cking, smuggling, sub-standard
working conditions and forced or illegal child labour. There has to be a clear political
mandate assigned to different enforcement authorities, e.g. through the establishment
of specialized police or labour inspection units. Law enforcement authorities are often
inadequately equipped and trained to identify and prosecute forced labour. If police
or labour inspectors seriously lack resources and recognition, they may become part of
the problem through corruption rather than part of the solution. Furthermore, since
traffi cking involves the movement of people and is usually hidden from public view, special
identifi cation techniques are required. Law enforcement authorities, e.g. police, border
peonage, involuntary servitude, forced labour, traffi cking into servitude, sex traffi cking and document
servitude (“holding the actual or purported identity documents in the course of committing or with
intent to commit any traffi cking crime”). Forced labour is defi ned as “providing or obtaining another
person’s labour or services by threats of serious harm or physical constraint, by means of any scheme,
plan or pattern intended to instil fear of serious harm or physical constraint; or by means of the abuse or
threatened abuse of legal process”. The defi nition of coercion in the traffi cking provisions matches the
concept of coercion in the Forced Labour Statute. ‘Serious harm’ is subjectively defi ned: it must have
led to the decision of the victim not to run away. Which type of coercion is necessary to achieve this
depends on individual circumstances. Statutory examples include isolation, sexual abuse, starvation,
threats, psychological harm and coercion. Moreover, abuse of legal process (e.g. threat of deportation
or detention) or holding identity documents are separate offences. These are effective tools: if it is
not possible to make a traffi cking case because of problems with witnesses, it is possible to prosecute
on these minor offences. Traffi cking can also be prosecuted under violent crime offences (extortion,
kidnapping, hostage taking), immigration offences and labour offences. Other relevant provisions
include legal provisions on mandatory victim restitution and forfeiture of criminal property. Forfeited
criminal assets and fi nes are used to fund victim provisions and to provide compensation to victims.
Policy initiatives to overcome these problems include targeted messaging to migrant populations,
training of local law enforcement, outreach to specifi c fi rst responders like intake offi cers at hospitals,
emergency room personnel, restaurant health inspectors, and people who install telephones in houses,
and co-operation with the Department of Labour. The latter is important because labour inspectors
can enter any workplace and report back to law enforcement in case of suspicions of traffi cking or
forced labour. Another initiative, in co-operation with the Mexican authorities, consists in providing
Mexican workers with a card that asks them to call their own consulate in case of labour abuse.
Particularly for undocumented workers this is a more comfortable route, which has led to a number of
prosecutions. Currently half of the cases are reported by local offi cers, 40 % by NGOs, and only 10 %
by federal offi cers.
402 UNODC: Global Report on Trends in Traffi cking in Persons 2008, p. 22-24: One of the elements
emerging from the collected data is that most legislative frameworks on traffi cking in persons have
been developed only within the last few years. The real impact of the Protocol appears through a timeanalysis
of the dates when countries fi rst introduced traffi cking in persons legislation.
403 OSCE: Human Traffi cking for Labour Exploitation/Forced and Bonded Labour: Prosecution of
Offenders, Justice for Victims. Report of the 5th Alliance against Traffi cking in Persons Conferences
on Human Traffi cking for:
Labour Exploitation/Forced and Bonded Labour Vienna, 16 and 17 November 2006. p. 2.
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