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.
A selection of relevant publications from the Peace Palace Library collection
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as 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 shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
- Gallagher, A., The International Law of Human Trafficking, Cambridge, Cambridge University Press, 2010.
- Gozdziak, E. and M.N. Bump, Data and Research on Human Trafficking: Bibliography of Research-Based Literature, Washington, Georgetown University, 2008.
- Kleemans, E.R., "Expanding the Domain of Human Trafficking Research: Introduction to the Special Issue on Human Trafficking", Trends in Organized Crime, 14 (2011), Nos. 2-3, pp. 95-99.
- Scarpa, S., Trafficking in Human Beings: Modern Slavery, Oxford, Oxford University Press, 2008.
- US Department of State Factsheet Distinctions between Human Smuggling and Human Trafficking, 2006.
- Winterdyk, J. (et al.) (eds.), Human Trafficking: Exploring the International Nature, Concerns, and Complexities, Boca Raton, FL, CRC Press, 2012.