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It should not be overlooked that the resources needed to reach traffi ckers are signifi cant. An investigation into a network requires years of police work, the retention of translators to interview victims and analyses of confi scated records, and the use of sophisticated technology to map networks and victims. Without a complex analysis traffi cking and also smuggling appear as individual and uncoordinated cells exploiting only a limited number of individuals. 410 One way of addressing traffi cking in persons is to demolish the markets generating profi ts to the criminals. This might be attempted in a manner of ways including tackling the demand for cheap labour and exploitative services, or addressing the underlying poverty and lack of opportunities that creates a willing pool of potential victims. Another is to target the intermediaries who have built a criminal industry as the exploitative go-betweens who deal in human beings, and the profi ts they generate. To target the human traffi cking industry would require identifi cation of traffi ckers in order to be able to investigate traffi cking in persons cases, and prosecute and convict offenders. 411 412 “Traffi cking is essentially about the acquisition and management of a labour force, with the purpose to lower labour costs to increase profi ts. Key questions become, who are the sellers and buyers of traffi cked labour, who are the brokers, who is the highest benefi ciary? To answer these questions it is imperative to gain insight in the labour market everywhere where large numbers of migrant workers are present. Second, traffi cked labour is purchased to increase profi t. This decision has risks. The labour force can run away or not perform, law enforcement may interfere. Those risks must be reduced or eliminated for the crime to be profi table. “Management tools” to control victims include debt bondage (victims cannot send money home), isolation (victims fear law enforcement and fail to recognize assistance), false hope (victims believe that if they comply things will get better), threat of exposure (victims feel that they have failed and are ashamed) and the use and threat of violence or of reprisals against loved ones (victims will tolerate the abuse to protect their family). The overall result is physical and psychological imprisonment and abuse. If we understand this, we also understand why so few victims escape, why they are so hard to identify and why it is so hard to fi nd evidence of force, fraud or coercion.” 412 410 Shelley, L.: Human Traffi cking as a Form of Trans-national Crime, in Lee, M.: Human Traffi cking, p. 123. 411 UNODC: Traffi cking in Persons, Global Patters. 2006. p. 35. 412 T. March Bell, Counsel to the Assistant Attorney General, Civil Rights Division, U.S. in 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 151
The fact that there are very few prosecuted cases of traffi cking for labour exploitation in e.g. European destination states 413 is related to the diffi culties in obtaining the right Traffi cking for Labour Exploitation/Forced and Bonded Labour Vienna, 16 and 17 November 2006. p. 6. 413 See e.g. In OSCE Human Traffi cking for Labour Exploitation/Forced and Bonded Labour: Identifi cation – Prevention – Prosecution Report of the 3rd Alliance against Traffi cking in Persons Conferences on Human Traffi cking for Labour Exploitation/Forced and Bonded Labour. Vienna, 7 and 8 November 2005 for country examples. Examples of successful prosecution include Belgium: In 2005, the Belgian Criminal Code was amended to meet the most recent international requirements. The new legislation makes a clear distinction between traffi cking and smuggling and covers exploitation of both foreign and Belgian workers. Charging unreasonably high rents for housing by ‘slum landlords’ is defi ned as a separate offence. At the same time, a number of bodies have been established to ensure cooperation and co-ordination between the relevant agencies, such as police, the Public Prosecutors Offi ce, the judiciary and specialized NGOs. Under the old law, prosecutions for both smuggling and traffi cking were based on the article that prohibited helping a foreigner to obtain residence and thereby abusing his or her ‘position of vulnerability’. In practice the latter concept appeared to give rise to different interpretations by the court. In the case of a Guinean woman exploited as domestic worker, the Magistrate Court accepted abuse of a vulnerable position because at a certain point she found herself in Belgium without a valid residence and work permit. Her passport and other papers were taken from her so that she felt she could not move around freely without the risk of being arrested, and she lived and worked under ‘intolerable conditions’, notably without any form of social protection against accidents and illness. The judgement, however, was overruled by the Court of Appeal on the arguments that it was not established that she would not have been given her passport if she had asked for it, that the couple had undertaken steps to legalize her stay, that she enjoyed benefi ts in kind and received money for dental treatment, and, most notably, because, although she worked long hours, ‘this was in line with the usual domestic tasks of a housekeeper’. Moreover, the Court noted that she might have exaggerated her claims in order to obtain the right to stay in Belgium under the traffi cking statute. This case was not presented before the European Court on Human Rights. Otherwise, the decision would probably have been different, as this case is very similar to the case of Siliadin vs. France. Another case concerned an Indian accused of forcing fellow compatriots to work for him as fl ower sellers. In this case, the Court of Appeal accepted abuse of a position of vulnerability in light of the illegal administrative status of the workers, the precarious situation with respect to accommodation, the complete subservience of the workers through the use of violence and the obligation of the workers to hand over all their earnings. The new law establishes behaviour ‘aimed at undermining human dignity’ as an offence, regardless of the means used. Abuse of a position of vulnerability is removed from the basic charge and classifi ed as an aggravating circumstance. This leaves considerable discretion to the judge to decide whether or not a person has been put to work under conditions contrary to human dignity. This can, for example, include the performance of work without remuneration or for a remuneration which is disproportionate to the number of hours worked, or the presence of substandard working conditions without health and safety protections. The concept of traffi cking in the area of labour exploitation is thus very extensive and is defi ned by its aim, i.e. exploitation through employment under conditions contrary to human dignity. It includes not only actual employment under these conditions but also the intention to do so, and the modus operandi (such as abuse of a position of vulnerability) only come into play as aggravating circumstances. Italy: The relevant articles in the Italian Criminal Code provide for different degrees of severity, ranging from the use of illegal immigrants and the exploitation of their illegal status for the purpose of labour, to incitement to illegal migration for the purpose of exploitation, to holding a person in slavery. In addition, the law provides for special protections for exploited workers (Article 18 Legislative Degree No. 286, 25 July 1998). Since 2000, there have been a number of illustrative cases. The ‘Kevin Cosmetics’ case concerned the exploitation of illegal Romanian men and women by a company led by an Italian businessman and located in a remote area. The workers were housed in the same building as they worked, and arbitrarily 152
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United Nations Educational, Scienti
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UNESCO migration studies 3 Series e
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Human Rights Law 66 Development of
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Note on Author Kristina Touzenis ha
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countries with economies in transit
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nonetheless these instruments mark
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The legal aspect of traffi cking is
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enhanced knowledge of the phenomeno
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Broadly speaking, poverty, unemploy
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Considering the complexity of the p
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The perhaps most innovative report
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THE WAY FORWARD IN POSSIBLE RESEARC
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and considers the consent of the
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35 Organizing or directing others t
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TRAFFICKING AND SMUGGLING - AN IMPO
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often be diffi cult for law enforce
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group argued that ’traffi cking
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ecruitments agency’s responsibili
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workers to authorities if they refu
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The Travaux Préparatories, in para
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Forced labour Bonded labour and deb
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ILO Declaration on Fundamental Prin
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and servitude clarifi es that while
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sex industry is frequently illegal
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idea that traffi cking for forced p
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labour exploitation and services ar
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Criminal Law Traffi cking and smugg
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treatment. 131 In A v. United Kingd
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circumstances, including offences i
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supply and demand in the traffi cki
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from a traffi cking ordeal is compa
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Common criminal off ences Traffi ck
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The gravity of traffi cking is perh
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Human Rights Law It has widely been
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makes the obvious evident - the Pro
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Members of the Human Rights Caucus,
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3) examining the possibilities of g
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particular about their legal rights
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support person and interpreter, are
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Interaction with the TOC in witness
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and profi ts are hardly ever traced
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provisions made for the victims’
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occurs in the context of organized
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shall adopt appropriate legislative
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case is that the Court emphasised t
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OTHER RELEVANT HUMAN RIGHTS INSTRUM
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of the Child on the sale of childre
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PREVENTION - A HOLISTIC APPROACH Ad
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Studies have revealed how, througho
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Traffi cking in persons is - like a
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Page 105 and 106: ealisation of the right to food. 28
Page 107 and 108: y state agents, (the duty on the St
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Page 115 and 116: victims compensation fund. Traffi c
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Page 131 and 132: measures. The question of whether o
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Page 137 and 138: Current Trends in Traffi cking The
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Page 155 and 156: evidence to prove the crime and to
Page 157 and 158: Hence, migration departments and la
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Page 169 and 170: Fekete, L.: Canary Island Tragedy:
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Page 173 and 174: UNODC: Global Patterns in Human Tra
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