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

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