Peace Palace Library

Human Trafficking or Smuggling: Guidance Needed?

d.zwaagstra — Fri, 24 May 2013 14:27:43 +0000

On the first of July this year the Netherlands are commemorating the 150th anniversary of the abolishment of slavery. Although slavery has officially been abolished, the modern slave trade, also called human trafficking, is still continuing, not only in the Netherlands but everywere. Forms of human trafficking such as forced labour, sexual exploitation, domestic servitude, forced begging, exploitation for the purpose of criminal activities, organ trafficking, and other exploitation flourish, although at the end of the last century the political landscape changed radically. Suddenly human trafficking was high on the political agenda leading to international and regional initiatives against trafficking such as the Palermo Protocol, where human trafficking has been defined specifically for the first time in international law (2000). Human trafficking figured and figures prominently in the news. Also at the end of the last century international legal scholars started writing articles and books on divers topics of trafficking. If you search the catalogue of the Peace Palace Library for the subject human trafficking 982 publications will appear at the moment, almost all published after 1995. The Research Guide on Human Trafficking of the Peace Palace appeared last year and can also help to guide you further in the subject of human trafficking.

But what is human trafficking and what is the distinction between trafficking and human smuggling?

On the basis of the definition given in the Trafficking in Persons Protocol (see below), it is evident that human trafficking has three constituent elements;

The Act (What is done)

Recruitment, transportation, transfer, harbouring or receipt of persons.

The Means (How it is done)

by threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim.

The Purpose (Why it is done)

for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.

Human smuggling is a crime involving the procurement for financial or other material benefit of illegal entry of a person into a State of which that person is not a national or resident. Human smuggling primarily relates to illegal immigration and the violation of immigration laws and basically involves mutual consent between the illegal immigrants and their smugglers while there is no real consent from the trafficked person. The legal distinction seems artificial but as countries around the world draft criminal law provisions relating to the crime of human trafficking the distinction becomes relevant.

It may be difficult to make a determination between smuggling and trafficking in the initial phase. According to the US Department of State trafficking often includes an element of smuggling, specifically, the illegal crossing of a border. In some cases the victim may believe they are being smuggled, but are really being trafficked, as they are unaware of their fate. Conversely, persons being smuggled may sometimes willingly enter into “contracts” with the smugglers to work off a smuggling debt. Whether a particular circumstance constitutes human trafficking depends therefore on the willingness of victims to make a statement, the interaction between offender and victim, and evidence gathered. Having good laws is another. Last month, Scotland’s police made a radical policy shift, announcing they would no longer seek to prosecute people brought to the UK to work against their will. “This new approach to protecting the victims is key to guaranteeing the human rights of trafficked people, who have committed crimes only because they have been compelled to do so”, Maria Giammarinaro notes (Special Representative and Co-ordinator for Combating Trafficking in Human Beings at the Organization for Security and Cooperation in Europe (OSCE)). “It is an essential step to reducing victims’ reluctance to appear in court and helping law enforcement bodies to increase prosecutions”. Add to this the judgment Rantsev v. Cyprus and Russia where the European Court of Human Rights indicated that states might have to take measures beyond legislation to protect a victim known to be at risk, it is clear that that the international community and international law can help to positively influence the acts of states. As Anne Gallagher writes: “States are making choices about trafficking every day, choices that could be different and better if they were confronted with clear and unambiguous evidence of their international legal obligations”. The publications by international legal scholars included in the collection of the Peace Palace Library and the Research Guide on Human Trafficking in particular seek to contribute to a future in which this clarity can be given on the topic of human trafficking.

‘Evolving standards’ of international law should overturn anti-sodomy law: Belize lawsuit

Ingrid Kost — Fri, 24 May 2013 10:00:52 +0000

Ten years ago, the late, great American jurist Robert Bork wrote a short book entitled Coercing Virtue: The Worldwide Rule of Judges. He described how the “American disease” of judicial legislating—activists using constitutional courts “to outflank majorities and nullify their votes” on controversial social issues—was becoming a global phenomenon.

By Piero Tozzi

Source: LifeSiteNews

Genocide and War Crimes in National Courts: the Conviction of Rios Montt in Guatemala and its Aftermath

Ingrid Kost — Fri, 24 May 2013 09:54:01 +0000

After nearly two months of riveting testimony and procedural rollercoasters, a trial court in Guatemala on May 10, 2013 found former president Efrain Rios Montt guilty of genocide and war crimes under Guatemalan law and sentenced him to a total of eighty years in prison. The court acquitted his military intelligence chief, Jose Mauricio Rodriguez Sanchez. Ten days later, on May 20, 2013, the country’s Constitutional Court (the highest court) annulled the verdict and the last part of the trial based on alleged violations of the defendants’ due process rights, sending it back to the trial court. The defendants were on trial for crimes committed in the northern Quiche area of Guatemala against the Ixil Maya people during 1982-83, the height of Guatemala’s thirty-year long armed conflict. This Insight provides an assessment of the Rios Montt trial, the first time that a former head of state had been convicted of genocide in a national court.

By Naomi Roht-Arriaza

Source: ASIL

China continues to repress fundamental rights of Tibetans, says Amnesty International

Ingrid Kost — Fri, 24 May 2013 07:54:35 +0000

A new report on China has painted a grim picture of the world’s most populous country’s human rights record and revealed that Chinese authorities in Tibet continue to repress the fundamental rights of the Tibetan people.

Source: Phayul

Stopping International Tax Avoidance: What Are the Best Alternatives?

Ingrid Kost — Fri, 24 May 2013 07:47:34 +0000

Both the Washington Post and the New York Times have articles today on a topic of great importance for the tax debate in advanced economies. The pieces discuss how officials from the UK and European economies are being pushed by their citizens to go after the type of tax avoidance engaged in by Apple, Google, GE, and countless other multinationals.

By Jared Bernstein

Source: Huffington Post

South Sudan: No Justice for Protester Killings

Ingrid Kost — Fri, 24 May 2013 07:44:37 +0000

South Sudan state authorities have failed to carry out adequate investigations into the killing of eight peaceful protesters in December 2012 by government security forces, Amnesty International and Human Rights Watch said today.

Source: Human Rights Watch

Transitional Justice Strategy for Bosnia and Herzegovina

Ingrid Kost — Thu, 23 May 2013 14:00:47 +0000

Ethnic and conflicting interpretations of the legacy of human rights violations and war crimes between 1992 and 1995 continue to burden political development in Bosnia and Herzegovina (BiH), simultaneously poisoning inter-ethnic relations between Bosnian communities. Understanding that dealing with the past is a key precondition for conflict prevention and the creation of a stable future, the government of BiH has started the process of creating a state-level Transitional Justice Strategy.

By Dr. Goran Šimić

Source: Transconflict

Mugabe signs Zimbabwe’s new constitution into law

Ingrid Kost — Thu, 23 May 2013 11:00:36 +0000

President Robert Mugabe signed Zimbabwe’s new constitution into law yesterday, clearing the path to crucial elections later this year.
The 89-year-old, who has ruled Zimbabwe since independence from Britain in 1980, signed the document two months after it was overwhelmingly approved by Zimbabweans at a referendum.

Source: Arab News

An Exit Strategy From Detention at Guantanamo

Ingrid Kost — Thu, 23 May 2013 09:00:22 +0000

It is time to close the detention facility at Guantanamo Bay, Cuba (GTMO). Until it is closed, it will remain a symbol of attempts to avoid the rule of law.

By Adam Smith

Source: Huffington Post

Argentina Judicial Reform: A Farewell to thee Rule of Law and the Separation of Powers.

Ingrid Kost — Thu, 23 May 2013 07:57:12 +0000

During the week of 22 April 2013, the Argentine Congress, controlled by a Peronist majority responding to Cristina Fernández de Kirchner (known as “CFK”), passed a set of laws, after an urgent push from the Executive, whose main effect is to obliterate the independence of the judiciary and hand over the sum total of power to the Executive Branch, directly or indirectly.

By Rodolfo Arrate

Source: Merco Press