Trafficking in human beings touches upon a broad variety of issues from organised crime to labour migration and discrimination, and so do the measures to counter the phenomenon ranging from law enforcement operations to the improvement of general working conditions.
It was only in 2000 that United Nations Member States agreed upon a definition for trafficking in human beings as outlined in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Governments developed this treaty in the framework of combating the global growth of organised crime through international cooperation. The Trafficking Protocol supplements the United Nations Convention Against Transnational Organized Crime and specifies three purposes:
- to prevent and combat trafficking in persons, with a particular focus on women and children;
- to protect and assist victims of trafficking; and
- to promote cooperation among States in order to meet these objectives.
While civil society organisations, concerned about the well-being of victims of crime, strongly lobbied for the inclusion of binding provisions addressing assistance and protection of trafficked persons, these provisions remain non-binding in character, (in contrast to the provisions dealing with prosecution and cooperation).
It is important to note that the definition of trafficking in human beings has been laid out in a broad and comprehensive manner, focusing on women, children and men alike as well as providing all purposes for which persons may be trafficked. The central elements in this definition are the threat or use of force, deception, coercion and abuse of power for the purpose of exploitation making the initial consent of a person irrelevant. Trafficking in human beings may also occur within a country’s borders and therefore it is not necessary to prove that a border has been crossed in order to satisfy all elements of the crime.
Recognising the distinction between the crime of trafficking in human beings and the crime of smuggling of migrants, UN Member States elaborated and adopted an additional United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air. Prima facie, the two crimes bear similarities however, even a shallow reading of the two crimes quickly reveals that they are indeed different. It is possible that some situations of smuggling may transform into situations of trafficking, where a person who was initially transported with consent, later falls trap to a situation of labour exploitation – in this case, it becomes clear that we no longer speak of smuggling, but trafficking. The difference between the two crimes is essential to note, as the persons who fall victim to any of the two crimes will need to be afforded different assistance and protection. A lack of understanding of the difference, could therefore lead to a violation of the human rights of a victim, who after having been in fact trafficked into a situation of exploitation, is treated as an illegal smuggled migrant, and for instance, not afforded appropriate assistance and/or deported.
Safeguarding the rights of trafficked persons and vulnerable groups such as irregular migrants need to be at the core of any anti-trafficking work. Even though human rights groups have been drawing attention to slavery, forced labour and other forms of labour exploitation for a long time, it was only with the Trafficking Protocol that broad momentum was generated on the international stage triggering international action for the promotion and protection of victims’ rights. The Office of the UN High Commissioner for Human Rights issued Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002) to adequately address trafficking situations from the legislative to the operational level. The United Nations Children’s Fund, moreover, elaborated Guidelines on the Protection of Child Victims of Trafficking (2003) that set out general principles as well as specific measures that need to be taken into consideration when acting in the best interest of the child.
The Organisation for Security and Cooperation in Europe chose to take a holistic approach and requires various bodies within the organisation as well as OSCE participating States to address trafficking in persons as a cross-cutting issue when implementing the OSCE Action Plan to Combat Trafficking in Human Beings (2003). This action plan most importantly calls for the development and implementation of National Referral Mechanisms (NRMs), this being a national cooperative framework through which state actors in strategic partnership with civil society fulfil their obligations to protect and promote the human rights of trafficked persons.
While these documents prove to be valuable guidance on the policy level, they are of non-binding character. However, Governments took these developments into account and decided to codify them by negotiating a legally binding instrument within the framework of the Council of Europe that would be “geared towards the protection of victim’s rights and the respect of human rights, and aiming at a proper balance between matters concerning human rights and prosecution”. The CoE Convention on Action against Trafficking in Human Beings (2005) entered into force in October 2007.
The trafficking-related pages on Legislationline have been tailored to reflect the discourse on the issue to date, with new developments such as codified reflection periods, compensation but also continuing and projected developments, such as national anti-trafficking frameworks. A lot of additional information may also be found in the “resources” section in the red stripe at the top of the trafficking pages.
Posted: October 2007
Note on the Regulatory Resolution of the Supreme Court of Kazakhstan on the Application of Criminal Legislation on Human Trafficking by
Review of the Legislation Combating Trafficking in Human Beings of the Republic MoldovaDate : 14 December 2011 English [0.66 MB]
Opinion on the Draft Law on Counteracting Trafficking in Human Beings of the Republic of UkraineDate : 05 September 2011 English [0.36 MB]
Forced Labour and Human Trafficking: Casebook of Court Decisions