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

and servitude clarifi es that while slavery was narrowly defi ned servitude was considered
to be applicable to all conceivable forms of dominance and degradation of human beings
by human beings. 87
The Supplementary Convention, art. 1(c) defi nes 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”. 88
Traffi cking in modern times is commonly regarded as a “contemporary” form of slavery.
The term denotes that it is different from the traditional forms of slavery with a set of
characteristics that sets it a part from this latter. For instance legal ownership of people
is not a defi ning attribute under contemporary forms of slavery. 89 Contemporary forms
of slavery are also less permanent, in addition racial bias is not the key justifi cation for
enslavement, whereas “ethnic and racial” differences were used in the past to explain and
excuse slavery. The profi t to be made from slavery and the slave trade has become a more
important consideration in modern times. 90
The relationship between traffi cking and slavery/enslavement is critical. While it may
be easy to treat these two acts synonymously, traffi cking and slavery are not necessarily
the same. The key element of slavery as stipulated in the Slavery Convention is the right
of ownership. In the context of traffi cking of human beings subsequent exploitation
can effectively amount to slavery because the right of ownership is fully exercised and
retained when people are exploited. 91 But not only slavery-like exploitation amounts to
traffi cking.
In Prosecutor v. Kunarac 92 the ICTY elaborated on the meaning of slavery and enslavement
noting that a mere ability, among others, to buy, sell or trade people, although an important
factor to be taken into consideration, is in itself insuffi cient in determining whether or not
the enslavement is committed. 93 Traffi cking may then be treated as slavery simultaneously
mainly when people are exploited afterwards by the traffi ckers themselves – or the same
organisation – as this ensures the continuous exercise of the right of ownership. 94 The
87 Scarpa, S.: Traffi cking in Human Beings – modern slavery. p. 87.
88 (E/CN.4/Sub.2/2003/31).
89 Bales, K.: New Slavery: A Reference Handbook, p. 9.
90 Obokata, T.: Traffi cking of Human Beings from a Human Rights Perspective – towards a holistic
approach. p. 18.
91 Ibid. p. 19.
92 Prosecutor v. Kunarac, IT-96-23, Trial Judgment, 22 Feb. 2001.
93 Kunarac, para 543.
94 Obokata, T.: Traffi cking of Human Beings from a Human Rights Perspective – towards a holistic
approach. p. 20.
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