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

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Conclusions Traffi cking in human beings as a crime has now been established in the texts of many national legislations as a consequence of international agreements and conventions. The path towards harmonisation of defi nitions has started even if it is not yet completed. If traffi cking in human beings is a rewarding business for many organised crime groups it is also the vehicle for many desperate people to leave low social and economic conditions for something they believe to be better. The real issue today is to understand the phenomenon and its many angles to fi nd proper remedies. It is a typical criminal intermediation that helps meet two illegal demands: the growing demand for irregular migration possibilities and the growing demand for prostitutes and manual work etc. Human smuggling and its violent appendix of traffi cking in human beings is the result of opportunities provided to criminals by the diffi culty/incapacity to regulate migration fl ows. 442 Focusing on the dimension of human traffi cking is not signifi cant in itself – it is important to understand and measure for which purpose traffi cking happens, i.e. in which specifi c market traffi cked people are exploited. This will allow designing more focused and effective interventions. This means the implementation of policies oriented in detecting and deterring demands for prostitution, drugs, work, and organs, and in bringing these black markets to a legal dimension. It is necessary to understand that not all forms of exploitation are the same and to assess demands and supply in the different markets by separating the legal ones from the illegal ones, to develop criminal sanctions and regulatory disincentives in the labour market. Many of these are already in place in several legislation but they are lacking implementation. 443 The Protocol is not perfect – but the fact that traffi cking happens and that victims do not receive suffi cient protection is not only because of fl aws in the Protocol, but due to many and varied problems related to implementation. It may seem banal, but it may be opportune to recall that having a perfect law which criminalises murder or theft does not automatically mean that murder or theft will not occur. But the Protocol does give several possibilities to prosecute and prevent abuse and exploitation in countries of destination. 444 Implementation is much more and has to be multifaceted. Training and 442 Savona, E.U.; Stefanizzi, S.: Measuring Human Traffi cking, complexities and pitfalls. p. 125. 443 Kangaspunta, K.: Collecting Data on Human Traffi cking: Availability, Reliability and Comparability of Traffi cking Data, in Savona, E.U.; Stefanizzi, S.: Measuring Human Traffi cking, complexities and pitfalls. p. 127. 444 Rossi, E.: Intervention in the Conference: ten years after the institution of the ad hoc inter-governmental committee for the elaboration of the Palermo protocol, Palermo: 21-22 May 2009. 161
prevention including respect for social economic rights are important parts of an effective fi ght against traffi ckers and protection of victims – aspects which are included in the Protocol, but not always easy to implement, also due to a certain cost. It is also true that the concept of “traffi cking” does not exists in all legal systems and in some cases cannot even be properly translated linguistically. It is however hard to totally discharge the value of the Protocol on this basis. Exploitation is very hard both to eradicate and to justify. This means that justifying exploitation by saying that it is not a crime in national law, that it is part of traditional practices or the likes is not credible – the exploitee is, if given the possibility, rarely going to opt for staying in an exploitive situation for more than strictly “necessary”. It also means – and this must be underlined – that eradicating exploitation is as hard as eradicating poverty. But countries in which traffi cking has not existed as a concept are also asking for help to adapt their national legislation and implement national action plans. 445 In the above signifi cant time was used to clarify the defi nition of traffi cking. 446 This is due to the simple, but unfortunately often underestimated, fact that considerable confusion exists when it comes to what traffi cking is. And this confusion leads to diffi culties in grasping not only what traffi cking is but also what can be done to address it and in what – legal – forum this should be done. It is, unfortunately, not uncommon to hear traffi cking equalled to slavery (without any specifi cation that traffi cking is not only slavery) or that once traffi ckers start to pay their victims a small sum for the “services” prosecution is no longer possible for the traffi cking offence. This is blatantly false. Such perceptions create diffi culties and confusion both in research and in implementation and weaken the Protocol’s potential effect both on prosecution of traffi ckers and protection of victims. The confusion which to a certain degree has been created as to what traffi cking is and whether the defi nition in the Protocol is at all useful or if it is overly complex is a serious risk for implementation. As has been seen above the Protocol is one fi eld of law which actually bridges two systems of law: human rights law and criminal law, both by including human rights protection - admittedly with fl aws – within a pure criminal law instrument, and also by recognition that human rights protection will enhance the possibilities for effective prosecution and vice versa. But the defi nition of traffi cking is a criminal law concept and that must be kept in mind in order to make the protocol work. Granted there will be borderline cases which will be hard to defi ne, but that is the case with almost all legal defi nitions. Notions such as intent, transport and exploitations are crucial – without these there cannot be a case of traffi cking. There must be – according to a criminal law mind – intent to exploit and exploitation must be within the chain of traffi cking. This being said, one should never forget that exploitation, slavery, bodily harm etc are criminal offences in themselves, so a regular migrant – or a national – ending up in such a situation should also have a possibility for redress and the perpetrators be prosecuted, but for a 445 See e.g. the work done by IDLO in Senegal: Analyse et Plan National d’Action de lute contre la traite des personnes, en particulier des femmes et des enfants. June 2008. 446 For an analysis of traffi cking as a labour market problem Plant, R.: the Labour Dimension of Human Traffi cking. Alliance against traffi cking in persons, Vienna, ILO, 2004. 162
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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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It thus results that any effective
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epresent confusion or disagreement.
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ealisation of the right to food. 28
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y state agents, (the duty on the St
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must also be sensitized to the para
Page 111 and 112: One of the three purposes of the Tr
Page 113 and 114: cases where it has been established
Page 115 and 116: victims compensation fund. Traffi c
Page 117 and 118: Protection and support for the traf
Page 119 and 120: their territories until the identif
Page 121 and 122: entry into or residence in countrie
Page 123 and 124: of human rights and may even in som
Page 125 and 126: Current policy for counteracting hu
Page 127 and 128: The contemporary regulation of huma
Page 129 and 130: of a residence permit and the right
Page 131 and 132: measures. The question of whether o
Page 133 and 134: availability of legal and sustainab
Page 135 and 136: ut nonetheless refl ects the kind o
Page 137 and 138: Current Trends in Traffi cking The
Page 139 and 140: There is still a lack of quantitati
Page 141 and 142: traffi cking are embedded in social
Page 143 and 144: further below). Most identifi ed hu
Page 145 and 146: In the construction sector: Exploit
Page 147 and 148: harms. At the same time, if one avo
Page 149 and 150: protection laws. Such differences b
Page 151 and 152: guards, labour inspectors, immigrat
Page 153 and 154: The fact that there are very few pr
Page 155 and 156: evidence to prove the crime and to
Page 157 and 158: Hence, migration departments and la
Page 159 and 160: The Recommended Principles and Guid
Page 161: traffi cking. Such cooperative mech
Page 165 and 166: To sign and ratify the Protocol to
Page 167 and 168: victims may be based on different f
Page 169 and 170: Fekete, L.: Canary Island Tragedy:
Page 171 and 172: Piotrowicz, R.: Trafficking of Huma
Page 173 and 174: UNODC: Global Patterns in Human Tra
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