Human Trafficking & violation of Human Rights

By Marco Sutto

No one would disagree with this simple but effective definition. Nevertheless, due to different cultures and social backgrounds, even almost 20 years later after the adoption of the Palermo protocols, if we try to dig a little bit further in defining trafficking existing different perception of the phenomenon will emerge. The opinion, about what trafficking in human being is, still remains different in every country, at least for those who are not directly involved in its contrast. In order to find a common ground of definitions and legal terms we have to relate with professionals figures.

Actually, the phenomenon is quite complex, hence the difficulty in defining it in a univocal way . Human trafficking involves different types of criminal and non criminal activities that lead to a situation of exploitation of the victims. Internationally the situation remained very confused until the adoption of the United Nations Convention against Transnational organized Crime and its Additional Protocols. These treaties represent an acknowledgment  by the international community of the need to commit into a common endeavor to fight against serious forms of crime. The State Parties, with the adoption of the specific Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,  have recognized Trafficking  as a phenomenon, in its different forms, and as a serious violation of human rights,  that needed to be addressed by a comprehensive common effort supported by an adequate integrated international legislation.

Indeed, Human Trafficking is a world wide industry, incorporating millions of people annually, and generating an annual turnover of billions of dollars. It affects with nefarious effects either countries from which people are trafficked, and the countries to which they are trafficked.

Although it is difficult to accurately measure the impact of trafficking, because of its clandestine nature and the hidden economies in which trafficked people work, several are the implications for the society, including the effects on families and communities left behind, and gender relations in receiving countries in which women are often sold into sexual slavery. From an economic perspective, particularly in contexts where people seeking migration opportunities for employment end up being trafficked, it results in significant remittance losses. Victims trafficked for the purpose of sexual exploitation are at risk of sexually transmitted infections, and of spreading the diseases among wider society. People are trafficked often in dangerous conditions and held, even after they reach their destinations, in circumstances that can have long-term detrimental effects on their mental and physical well-being. It has been verified, that the operations of organized criminal groups responsible of THB, whose illicit activities often extend beyond it, hamper the respect of the “Rule of Law “ and have serious implications in relation to national security of the involved States.[1]

Furthermore, in its resolution 2331 (2016), the UN Security Council unanimously condemned all instances of trafficking in persons in areas affected by armed conflicts, as a violation of the victims’ human rights, potentially amounting to war crimes, and as acts that undermine the rule of law, finance and drive the recruitment of terrorist groups, exacerbate conflict and undermine development.  The UN Secretary General has expressed[2] grave concerns on the activities of terrorist groups such as the Islamic State of Iraq and the Levant and other armed groups engaging in human trafficking both as a method of warfare and as a way of funding their activities. 

In this context, the role of the Anti-trafficking Protocol is of paramount importance in tackling the phenomenon, as it is the first global legally binding instrument with an agreed definition of trafficking in persons.

“Trafficking in persons”, as defined by the Protocol, means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs[3].

As previously said, trafficking is a complex phenomenon and therefore the result could be anything different from a complex definition of the crime, composed by multiple elements that concur to its realization.  We have Activities (recruitment, transportation, transfer, harbouring…), Means (use of force or other forms of coercion, of abduction, of fraud, of deception..) and Purposes (at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour…) and all this factors must concur together to qualify the phenomenon as crime of Trafficking.

The intention behind the definition and the other provisions of the Protocol, is to facilitate convergence in national approaches, with regard to the establishment of domestic criminal offences, and support efficient international cooperation in investigating and prosecuting cases of trafficking in persons. All of which was not possible without a common agreed definition. As a matter of fact, if you are not able to define something you can’t identify it and fight it.

 An additional objective that the Protocol is meant to achieve is that to protect and to assist the victims of trafficking in persons in full respect for their human rights.

Calling for the adoption of such legislative and other measures as may be necessary to establish the conducts of trafficking[4] as criminal offences, the Protocol asks each State Party to ensure that its domestic legal or administrative system contains measures to take care of victims.

States are requested to protect victims’ privacy and identity, assist during criminal proceedings, provide medical, psychological and material assistance, and assure a proper physical, psychological and social recovery system. Age, gender and special needs of victims, in particular the special needs of children should always be taken into account[5].

However, once a common ground of terms is set up, when dealing with trafficking as a crime, we have to consider its dynamicity as a phenomenon. It is dynamic because it usually has a place of origin, a place or places of transit and a destination. The geographic area in which it is perpetrated could be, and often is, very wide, transnational or even transcontinental. This aspect often renders the crime a transnational one, with the necessity of international cooperation to investigate it and protect the victims. Even when it is perpetrated within the national borders of a single country, it is rarely confined to a single area, thus requiring a strong coordination among national units. Moreover, the period during which the three constitutive elements take form (Activities, Means, Purpose) could last for a long period of time.

From the initial moment of recruitment of victims, to the actual exploitation, months could pass and even years before the crime is detected and the authorities can intervene in favor of the victims.

 From the initial moment of recruitment of victims to the actual exploitation months could pass, and even years before such crime is detected and the authorities can intervene in favor of the victims.

As imaginable, any investigation or evidence gathering process to reconstruct the events and prosecute a trafficking case becomes, with these premises, extremely complicated.

An additional characteristic which deserves to be taken into consideration is the deep influence of external causes on the trafficking phenomenon. Local factors related to the place of origin, transit and destination have a great impact on the phenomenon and to consider them is paramount for an effective trafficking prevention and contrast. These external elements are usually classified in push, pull and facilitating factors. “Push factors” are those which put the victims into the hand of traffickers. Poverty and lack of access to resources, marginalization in society - especially women and children; unemployment and poor education; transition, conflicts and post conflict situations; obstacles to legal migration commonly fall under this category. What we refer to as the “Pull factors” are those that lure the victims to a certain place offering to traffickers exploitative opportunities. Among them, we can mention the huge demand for the services of trafficked victims, the profitability of this illegal activity for traffickers and the related high level of impunity for their crimes.

 “Facilitating factors” are those which, somehow, make traffickers’ life easier. Modernization of travel systems and the reduced costs of travelling, the spread of the use of new technologies, corruption; even local cultures and traditions could facilitate the phenomenon.

This, of course, is far from being an exhaustive list of the factors, as many more could be identified. Categorization itself as push/pull/facilitating is everything but a strict one; the majority of the factors could fall under one or another category depending on the situation.

During the course of trafficking numerous separate abuses are committed, which in themselves constitute breaches of both national and international law; it is only the peculiar combination of the elements that allows Trafficking to be considered as an overall crime which is distinct from each single violation.

These specific features characterize Trafficking in Human Being as a hidden crime.   Its composite nature often makes it hard to detect.   It can easily be confused or misperceived with some of its constitutive elements and, in fact, security forces are often prone to intervene only investigating the crime appearing on the surface.

Irregular border crossing, harboring of irregular migrants, unregulated work, sexual abuse and violence, prostitution, begging are just examples of crimes that could be considered as an independent violation of criminal laws or as a constitutive element of the more serious crime of trafficking, requiring thus further investigations.

 

On this matter, quite often, trafficking and migrant smuggling are confused due to their overlap. The distinction may become particularly complicated when an act that begins as smuggling turns into trafficking. Both are crimes that affect human beings and involve criminal networks, nevertheless as clearly stated by the two different Protocols added to the Palermo Convention there are specific differences between them.

In addressing the crime, three are the investigating approaches that law enforcement agencies may usually apply: reactive, proactive and disruptive[6] approach.

Each approach can successfully lead to victims being identified, protected and assisted but the effectiveness in dismantling the responsible criminal organizations and hamper the phenomenon is different.

The Reactive response usually steam out from a contact with the victim or with a “surface crime”, when the police is not directly looking for a trafficking case. This is a victim-led approach, which is reliant most of all on victim testimony. It consistently utilizes standard, and I would say, quite basic, police criminal investigation methods, such as corroboration, identification parade, photo array identification and so forth.

The Proactive way, differently from the previous, is an intelligence-generated approach more efficient in bringing this kind of crime to light. In these situations, the police is specifically looking for trafficking cases. There are initial elements that suggest the existence of a trafficking case and the investigators try to corroborate the preliminary inferences. It entails the possibility to start a trafficking investigation even before the identification of any possible victim, even before the existence of a victim is proved. This approach does not depend solely on the victim’s testimony or cooperation; rather, it relies on utilizing a combination of tools to collect evidence and to build circumstances. Technical means, in these situations are very important, and the gathering of information, to prove the existence of the constitutive elements of the crime (actions, means and purpose) can be done through electronic surveillance such as wiretapping, video surveillance, with the screening and the analysis of the open sources (like the internet social media and so forth), economic investigations (follow the money-type).

Even the so-called human-intelligence techniques, sourced through direct contact with associates of specific criminal groups (police informants) represent an important tool.

This type of approach is for sure more effective in targeting the single perpetrators and the criminal groups but it requires a bigger effort by the security institutions, professionally skilled personnel, resources in terms of equipment and it can significantly be time consuming.

 

The Disruptive methodology is a coordinated multiagency approach to the problem. In this respect, the police investigative initiatives only represent a part of a bigger common effort. This strategy is driven by an initial risk assessment and a detailed analysis of the phenomenon in the area of interest. The dynamics and the nature of the crime are taken into account to tailor the intervention of the institutions to the situation of the considered area and to coordinate the necessary actions at a local, national and international level.

 

The latter approach represents the most effective way in dismantling the organizations behind the trafficking and of addressing the factors (the root causes) which generate and facilitate the crime. It represents a valuable option to protect the victims, to prosecute the crime and to tackle the entire phenomenon. Nevertheless it is not a solely police (or security institutions) business, as it requires a strong political and institutional commitment, even at government level, to set the objectives and to coordinate the multiple involved actors.

 

 

[1] UNODOC- An Introduction to Human Trafficking: Vulnerability, Impact and Action-2008.

[2] Report of the Secretary General on trafficking in persons in armed conflict pursuant to Security Council resolution 2331 (2016)

[3] Article 3 (a) of the Trafficking in Persons Protocol

[4] Article 5 of the Trafficking in Persons Protocol

[5] Article 6 of the Trafficking in Persons Protocol

[6] UNODOC- Global Programme Against Trafficking- Toolkit to combat trafficking in persons-2008.

IOM-Investigating Human Trafficking Cases Using a Victim-centred Approach: A Trainer’s Manual on Combating Trafficking in Persons for Capacity-building of LEOs in Antigua and Barbuda, Belize, Jamaica, and Trinidad and Tobago- 2018.