Having introduced the currently valid definition of human trafficking and the legal context from which it emerged, it is necessary to explain the elements of this definition. Before that, however, it is essential initially to reveal the interpretative standpoint. In particular, two interpretative standpoints are highlighted in this chapter. First, the definition of human trafficking is interpreted from the perspective of criminal law. Much of the analysis here is rooted in some basic principles of criminal law, which need to be spelled out from the outset although their relevance will emerge with better clarity in the text that follows. Such principles are personal responsibility, presumption of innocence, fair labelling and legality.Footnote 1 Second, the generosity of the definition is determined from the perspective of delimiting the group of victims of human trafficking in relation to which states have undertaken assistance and protection obligations. It is important to preserve this distinction since the two approaches imply different interpretation techniques.Footnote 2
States’ obligations to prevent the commission of human trafficking do not raise crucial legal issues as to the meaning of the definition.Footnote 3 As long as there is a general understanding from a policy perspective as to what human trafficking is, preventive measures can be undertaken. When it comes to states’ obligation to ensure effective international cooperation between national authorities, however, the legal interpretation of the definition may well raise issues. For example, some states might interpret the definition more liberally than others, and the resulting divergences could hamper international cooperation. This chapter will not offer further insights on this problem. A deeper engagement with it would demand an examination of the applicable conditions under which international cooperation between law enforcement and judicial authorities is conducted in different areas (extradition, request of evidence, etc.) under the CoE regime, the EU law regime or any other relevant international treaties, an objective that is beyond the scope of this book. It can only be mentioned that, for example, in the context of the European Arrest Warrant Framework Decision, divergent national interpretations of the definition of human trafficking are unlikely to cause obstacles, because if the arrest warrant is issued with respect to the crime of human trafficking, double criminality is not required.Footnote 4 Similarly, pursuant to the Council Framework Decision 2008/978/JHA on the European Evidence Warrant, the offence of human trafficking is not subject to verification of double criminality. When it comes to the CoE regime, however, pursuant to the European Convention on Extradition (CETS No. 24), the principle of double criminality is applicable.
The definition of human trafficking has three constitutive elements (the action, the means and the purpose), which will be explained and their uncertainties pointed out. I will return to this topic again in Chapter 7 where the definition of trafficking is compared with those of slavery, servitude and forced labour.
3.1 Not a Form of Exploitation
‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, …
These five actions in the definition were proposed by the United States in the first draft of what was to become the UN Trafficking Protocol,Footnote 5 and were not an object of discussion during the negotiating process.Footnote 6 They refer to a deceptive or coercive process that could potentially lead to exploitation. Human trafficking captures the movement, the preparation for the movement and the receipt of persons after the movement. The five actions can be defined as ‘links in the chain of supply’, thus referring to the act of supplying of migrants in host countries.Footnote 7 They refer to the removal of affected persons from their home environment in order to be exploited for the gain of others in another location.Footnote 8 The five actions in the definition can all qualify as human trafficking in isolation from each other. In other words, it is enough for a person to commit only one of these actions to qualify as a perpetrator of human trafficking as long as the other elements of the definition are also present.
It has been suggested that ‘recruitment’ means any activity leading from the commitment or engagement of an individual to his/her exploitation.Footnote 9 This could imply that ‘recruitment’ means searching for people, encouraging and persuading them to join in an activity; it can be also understood as enlisting them in a role.Footnote 10 It could also cover situations where potential victims seek avenues to migrate and desire to be recruited. The actions of ‘transportation’ and ‘transfer’ relate to the facilitation of the victim's movement and migration. ‘Transfer’ can also include ‘any kind of handing over or transmission of a person to another person’.Footnote 11 It could be also interpreted as making a person an object of transaction.Footnote 12 The EU Trafficking Directive has clarified that the ‘action’ element includes ‘exchange or transfer of control’ over the persons who are recruited, transported, transferred, harboured or received.Footnote 13 I will return to this point in Chapter 7 since the transaction element makes trafficking comparable to slavery.
The ‘harbouring’ of persons has been interpreted as ‘accommodating or housing persons in whatever way, whether during their journey or their final destination or at the place of the exploitation’.Footnote 14 Its meaning has also been extended to circumstances where a person is hold at a place prior to the exploitation.Footnote 15 The action of ‘receipt’ refers to receiving migrants in the countries of destination. It has been proposed that the ‘receipt’ of persons is ‘not limited to receiving them at the place where their exploitation takes place’, but also means ‘meeting victims at agreed places on their journey to give them further information on where to go or what to do’.Footnote 16
These five actions are quite diverse making the legal definition confusing since it conflates qualitative very diverse incidents. If we focus on each of these actions, it becomes clear that the perpetrators of human trafficking might engage in very different activities. As the Explanatory Report to the CoE Trafficking Convention states, these activities are meant to reflect ‘the whole sequence of action that leads to exploitation’.Footnote 17
From the perspective of states’ obligations to identify and assist victims of human trafficking, the concrete actions of concrete perpetrators do not constitute the focal interest since the definition of human trafficking is not applied for the purpose of conviction.Footnote 18 Rather, the overall experiences of the victims are of importance. From this perspective, and in light of the ‘action’ element taken as a whole, human trafficking can be understood as a deceptive or coercive process that could lead to exploitation.
The definition and respectively the human trafficking legal framework thus do not cover the problem of exploitation as such. States adopt obligations in relation to the ‘recruitment, transportation, transfer, harbouring or receipt of persons’ by specific means (deception, coercion, etc.), for the purpose of exploitation. A person who has not been subject to these actions is thus not a victim of human trafficking. The definition of human trafficking also requires the adoption of certain means, which implies that not every recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation is intended to be addressed; but only such as has been executed through those means. As a result, Hathaway argues that the requirement of particular means restricts the scope of abuses that could be defined as human trafficking and are therefore under consideration.Footnote 19 It needs to be taken into account, however, that the ‘means’ element in the trafficking definition can be interpreted expansively. For example, if ‘abuse of position of vulnerability’ is interpreted widely to encompass any socio-economic vulnerability, or if it is interpreted to the effect that the socio-economic disparities between countries of origin and countries of destination denote vulnerability, then the ‘means’ element cannot have the restrictive function that Hathaway predicts. However, if the ‘means’ element is construed restrictively, then Hathaway's concern is well-grounded. The interpretation of the ‘means’ element will be further addressed in detail below.
The crucial issue, however, is not how to interpret precisely the ‘means’ element in the definition, but the entrenchment of a distinction between persons who have been deceived in their migration for the purpose of exploitation, and those who have not but are nevertheless abused and exploited in the destination country. Since the definition of human trafficking refers to a process involving coercion or deception, which could potentially lead to exploitation, it covers only the first group. Accordingly, if migrants have not been, say, transported by the means of deception or coercion, which might imply that they have been smuggled, they are not victims of trafficking and they do not fall within the personal scope of the CoE Trafficking Convention, which envisions certain assistance and protection measures. Footnote 20
Gallagher has responded to the criticism that the definition of trafficking does not focus on the actual exploitation, but instead on the process potentially leading to exploitation. She argues that in its practical application this feature of the definition does not limit its scope or impact.Footnote 21 She explains that
[…] it is difficult to identify a ‘contemporary form of slavery’ that would not fall within its [the definition of human trafficking] generous parameters. Because the definition encompasses both the bringing of a person into exploitation as well as the maintenance of that person in a situation of exploitation, it is equally difficult to identify an exploiter who would not be caught within its scope […].Footnote 22
Gallagher argues that ‘the references to harbouring and receipt operate to bring not just the process (recruitment, transportation, transfer) but also the end situation of trafficking within the definition’. According to her argument, ‘harbouring’ and ‘receipt’ should be interpreted so as to include situations of exploitation in which there was no preceding process. She gives the example of a working environment that changes from acceptable to coercively exploitative, in which case the individuals involved are not trafficked into the exploitative situation; however, they are ‘harboured’ for the purpose of exploitation.
Gallagher's approach has been also followed by other authors,Footnote 23 and indeed the ILO has also officially endorsed a similar line of reasoning. According to the ILO, ‘the definition of forced labour covers most forms of trafficking’,Footnote 24 a view reflected in Article 1(3) of the 2014 Protocol to the Forced Labour Convention, which stipulates that
[t]he definition of forced or compulsory labour contained in the Convention [Convention Concerning Forced or Compulsory Labour (ILO No. 29)] is reaffirmed, and therefore the measures referred to in this Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour.Footnote 25
From the ILO perspective then the meanings of forced labour and human trafficking overlap. In contrast to Gallagher, who has attempted to interpret the ‘action’ element of trafficking in such a way so that it potentially converges with forced labour, the ILO places an emphasis on the ‘means’ element of the definition of trafficking to substantiate its position:
An important element of the definition of trafficking in persons in the Trafficking Protocol, which brings it within the scope of Convention No.29, is the means of coercion used against the individual, including the threat or use of force, abduction, fraud, deception, the abuse of power or a position of vulnerability, which definitely exclude the voluntary offer or consent by the victim [emphasis in the original].Footnote 26
The above-outlined positions, though, lack solid basis for three reasons. First, if Gallagher's expanded vision of the definition of human trafficking is followed, then all the exploitative practices included in the ‘purpose’ element, including slavery, servitude and forced labour, have to be relabelled as human trafficking, based on her interpretation of ‘harbouring’ and ‘receipt’. The result would be complete convergence between the concepts of trafficking, and of slavery, servitude and forced labour, which would defeat the purpose for which these different concepts were introduced in international law. The ILO position similarly defeats the purpose for which a definition of human trafficking with three distinctive elements exists in international law.Footnote 27
The second argument militating against the proposition that human trafficking can be equated to forced labour is that the five actions in the ‘action’ element will be practically voided of meaning. Factual circumstances in which one person was sexually abused by another and the vulnerable position of the former was abused or he/she was deceived, would be sufficient to constitute human trafficking. If Gallagher's arguments are endorsed, it can be argued that the first person is harboured or received by the second by the means of abuse of position of vulnerability for the purpose of sexual exploitation. If human trafficking were to cover these situations, then its standing as a concept capturing a distinct phenomenon would disappear, and it would be possible to label thus all kind of situations, including, for example, individual instances of rape or sexual abuse.
Finally, the argument that the definitional limits of human trafficking cover situations of exploitation without preceding process does not tally with the overall legal context in which the definition was crafted, and with its historical origins. Trafficking in the 1949 Trafficking Convention meant migration for the purposes of prostitution. As Nadelmann has eloquently noted, the real or perceived internationalization of prostitution ‘provided the essential transnational hook needed to pursue the abolition of licensed prostitution and more vigorous efforts against all prostitution around the world’.Footnote 28 The same ‘transnational hook’ was necessary for the purposes of initiating the UN Trafficking Protocol and defining its object of regulation.Footnote 29 Therefore, the transnationality that finds expression in the actions of recruitment, transportation, transfer, harbouring or receipt of persons in the Palermo definition is an inevitable element for conceptualizing abuses given the legal context, viz. transnational criminal law. Accordingly, the historical roots and the particular legal context in which abuses against migrants were addressed presuppose reference to a process of movement and migration across borders. In this regard, one should not lose sight of the fact that the UN Trafficking Protocol was adopted in the context of the UN Organized Crime Convention.Footnote 30 The drafters sought to address the problem of organization of movements perpetrated by a group of perpetrators, and the different actions in the definition of human trafficking are reflective of the different roles that the members of such groups might have.
The position that trafficking can be equated with forced labour is at odds with the legal context in which the trafficking definition was adopted for further reasons. Under the human trafficking legal framework, states adopt obligations requiring international cooperation for combating trafficking, strengthening of border control measures, and betterment of security and control of travel documents. All of these obligations point to a process of transborder movement. Thus the definition cannot be interpreted without consideration of the obligations that states adopt in relation to human trafficking, obligations that pertain to movement across borders. In other words, sight should not be lost of the purpose for which the definition of human trafficking in international law was adopted: basic standardization of the concept so that international cooperation in criminal matters is facilitated. As already explained in Chapter 2, this international cooperation is necessary because the separate stages of trafficking, as reflected in the ‘action’ element, are scattered over different states.
Finally, there is a paradox in the stance adopted by Gallagher and followed by others, in that, on the one hand, they insist on the value and use of the definition of human trafficking as a way of addressing abuses against migrants, without questioning the definition itself. Yet on the other, they are discontent with its ‘action’ element, specifically with the requirement for deceptive or coercive movement, leading them to propose different ways of circumventing this requirement. However, in reality, this requirement is a core element of the definition interpreted in accordance with the ordinary meaning of the terms and the context in which it was adopted.
Has the CoE Trafficking Convention changed anything in relation to the above arguments? Has it added power to the position that trafficking and forced labour converge? The monitoring body of the CoE Trafficking Convention, GRETA, has not taken a clear stance in this regard. However, it can be gleaned from its country reports that GRETA insists that all three elements of the international law definition of trafficking should be included so that trafficking is actually constituted.Footnote 31 If a State Party has excluded the ‘action’ element, thus bringing the meaning of human trafficking closer to what Gallagher suggests, GRETA criticizes this exclusion. Its critical response to the decision by the Norwegian legislator to expunge the ‘action’ element exemplifies this.Footnote 32 Its report on Cyprus is also informative. After stating that the national legislation in Cyprus criminalizes the exploitation of labour and sexual exploitation, GRETA notes that ‘[i]t should be recalled that the Convention requirement is limited to the criminalization of THB and that it does not require to make offences any of the elements of THB taken individually, as clearly stated in the Explanatory Report’.Footnote 33 Accordingly, GRETA asserts that trafficking is different from its constitutive elements, and thus cannot be reduced to one of its elements, including that of exploitation.
While it is true then that, unlike the UN Trafficking Protocol, the CoE Trafficking Convention is not situated in a transnational organized crime framework,Footnote 34 the above arguments pointing to the distinctiveness of human trafficking as opposed to slavery, servitude and forced labour (the latter forming only one element of the definition of human trafficking) are equally valid in the regional context. In addition, the above contextual interpretation, where I referred to the nature of the obligations undertaken by states, is equally relevant in relation to the regional instrument. In particular, the CoE Convention embodies various provisions that point to the transnational nature of the phenomenon addressed. The provisions on border control measures, security of travel documents and international cooperation clearly relate to transnationality.
Some further scrutiny of Article 2 of the CoE Trafficking Convention is required here. Article 2 delineates the scope of the Convention as follows: ‘This Convention shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organized crime’. Thus Article 2 clarifies that human trafficking does not necessarily have to be across international borders.Footnote 35 The provision stipulates that all the elements required to constitute trafficking can occur within the national borders of a single state. This raises additional questions as to the conceptual limits of human trafficking and the meaning of the ‘action’ element. It appears that to move a victim by means of deception from one village to the next, from one street corner to the next, or from one house to another for the purpose of exploitation in that village, street or house could amount to human trafficking. As a consequence, trafficking can cover various factual circumstances that are not only very distant from or even completely unrelated to the original reason for crafting a definition of human trafficking at international level, but trafficking might also converge with conduct traditionally criminalized at national level (e.g. the crimes of fraud, deception, abduction, pimping, procurement, etc.). This raises the question of how to distinguish human trafficking from these traditional crimes and whether the former has a distinctive meaning. This question will have to be resolved by the national criminal law; however, what can be suggested here is that if human trafficking within national borders is to make some sense, as required by Article 2 of the CoE Trafficking Convention, elements denoting distinctiveness have to be included, such as that the perpetrator has moved the victim to an unfamiliar milieu where the latter does not have social contacts. Such situations could transpire if the victim is moved by means of deception or coercion from a village to a faraway city. Another relevant example might be a situation where a perpetrator recruits, transports, transfers, etc. the victim within the territory of one country, taking advantage of the victim’ vulnerability arising from his or her irregular presence in that same country. Whatever choices are made at national level, the reformulation of trafficking as a process that can unfold exclusively within the borders of a single state, with the intended exploitation happening within the same state, is a challenge to the integrity and the distinctive value of the definition of trafficking.
In short, then, human trafficking is not a form of exploitation, but rather refers to the process preceding the exploitation. This should not be interpreted to the effect that trafficking cannot be abusive: since the person is recruited, transported, etc. by force or deception for the purpose of being exploited, this in itself is abusive. In this sense, trafficking is not simply about a process that might result in exploitation but it is an abuse in itself, since the process is violent or deceptive. This essence has been best captured by the UN Special Rapporteur on Violence against Women in the following way:
[…] it is the combination of the coerced transport and the coerced end practice that makes trafficking a distinct violation from its component parts. Without this linkage, trafficking would be legally indistinguishable from the individual activities of smuggling and forced labor or slavery-like practices, when in fact trafficking does differ substantially from its component parts. The transport of trafficked persons is inextricably linked to the end purpose of trafficking. Recruitment and transport in the trafficking context is undertaken with the intent to subject the victim of the coerced transport to additional violations in the form of forced labor or slavery-like practices. (emphasis added)Footnote 36
The Explanatory Report to the CoE Trafficking Convention seems to endorse the above clarification in maintaining that the inclusion of the actions of ‘recruitment, transportation, transfer, harbouring or receipt of persons’ is meant to ‘encompass the whole sequence of action that leads to exploitation of the victim’.Footnote 37 The Special Rapporteur on Violence against Women has also explained that the ‘action’ element of the definition of human trafficking covers different persons in the trafficking chain, including those at the beginning of the chain.Footnote 38 Accordingly, the definition has the objective of including the preparation and the assistance of the potential or actual exploitation. Thus although some perpetrators do not exploit or could be physically distanced from the potential or actual exploitation, they can be held criminally liable as perpetrators of human trafficking since they assist by recruiting, transporting, receiving, etc. the victims. This logic appears to be persuasive. However, significant challenges persist when one considers its actual application in a criminal law context.
The first challenge pertains to the mens rea requirement (the mental state of the perpetrator). More specifically, three questions need to be investigated in detail: what mens rea should be applicable? What level of intent and knowledge should be required of the person who ‘recruits’ or ‘transfers’? Should he/she act with intent, with knowledge or with reckless disregard of the possibility that the victim might end in a situation of exploitation? The second challenge pertains to the establishment of a criminal offence with a very convoluted and complex definition, when, in fact, the undesirable conduct could be targeted in a simpler way through the available modes of criminal liability, which are traditionally used in the national criminal legislation. In particular, it is noteworthy that those who assist in the commission of a crime can still be held criminally responsible under the doctrine of accomplice liability. Accordingly, a person who assists the exploitation by, for example, transporting or harbouring the victim, can still be held criminally responsible as an accomplice. These two challenges will be considered below.
3.1.1 The Mens Rea Attached to the ‘Action’ Element
Crimes are usually analyzed with respect to two elements: the mens rea (the mental element) and the actus reus (the material/objective element). The definition of human trafficking requires that each of the actions of recruitment, transportation, transfer, harbouring or receipt has to be committed ‘for the purpose of exploitation’, a phrase that relates to the state of mind of the perpetrator. The person who recruits and who, in light of the CoE Trafficking Convention Explanatory Report, is at the beginning of the ‘sequence of actions that leads to exploitation of the victim’ has to have the necessary mens rea in order to be convicted for human trafficking.
The rules pertaining to mental states of criminal liability and their definitions vary between different national systems. Therefore, Article 18 of the CoE Trafficking Convention, which stipulates that states have to establish human trafficking as a criminal offence ‘when committed intentionally’, is not enlightening. Different national jurisdictions might interpret intention differently. Despite the variety among national systems of criminal law, some elementary generalizations about their common features can be made.Footnote 39 Under these generalizations, three forms of mens rea are possible: intention, knowledge and recklessness.
Should the person who recruits intend that the victim be exploited? Should the person who transports the victim also intend that the victim be exploited by others? ‘Intention’ as a mens rea requires that the person who, for example, transports the victim means to engage in this conduct of transportation and he/she means to cause the consequence. In other words, he desires or wants the consequence,Footnote 40 and to achieve the prohibited conduct. The mental element must be established in relation to both the act, and the designated purpose of the act.Footnote 41 In relation to the act, it must be demonstrated that the trafficker meant to engage in it by recruiting, transporting, etc. In relation to the purpose of the act, it must be proven that he/she meant to cause it; he/she meant to cause the consequence, namely exploitation.Footnote 42 In sum, intention is the mental element involving the highest threshold. The establishment of individual criminal responsibility requires proof that the suspected trafficker has, for example, recruited the victim with the intention of exploitation.
In cases where the required mens rea is knowledge, the recruiter or the person who transports should know that the victim will be exploited. They do not intend the victim's exploitation; but they are aware that once recruited or transported, exploitation will follow. In contrast to intent, this is a lower threshold. The volitional element is overridden by a cognitive element. However, it still has to be proven that the recruiter or the person who transports actually knew what would happen to the victim once in the country of destination. They should also know that what will happen to the recruited or transported person amounts to exploitation. As will be discussed later, the meaning of exploitation is difficult to articulate, which further complicates the precise finding of the mental state of the alleged trafficker.Footnote 43 The recruiter might know that the recruited person will work, for example, as a prostitute in the destination country; however, does he/she know under what conditions the work will be performed and whether these conditions amount to ‘sexual exploitation’? Was the recruiter aware at the time of recruitment of the conditions under which the migrant was about to work in the destination country? These questions will have to be asked in the course of a criminal trial.
A third mental state, which is of lower threshold in comparison with knowledge, is negligence or reckless disregard.Footnote 44 All that is required is that the person who recruits or transports manifests negligence or disregard as to what might happen to the person once that person is recruited, transferred or transported in the country of destination. The problem is, however, that if this low threshold of mens rea is applied, the alleged trafficker might not be much different from a smuggler, who simply facilitates the migration.
As the definition of human trafficking is formulated, it appears to require intent, which is the highest threshold of mens rea. The Explanatory Report clarifies that:
The interpretation of the word ‘intentionally’ is left to domestic law. It is nonetheless necessary to bear in mind that Article 4(a) provides for a specific element of intention in that the types of conduct listed in it are engaged in ‘for the purpose of exploitation’. For the purposes of the Convention, therefore, there is trafficking in human beings only when that specific intent is present.Footnote 45
Accordingly, at the level of national substantive criminal law states can adopt different approaches, which could be more liberal or more restrictive. States can choose the more restrictive approach, which implies direct intent. This approach finds support in the plain wording of the definition of human trafficking.Footnote 46 Proving this is demanding. It might be hard to prove that, say, the recruiter actually knew what will happen to the victim, let alone that they intended the exploitation. States might opt for a more liberal approach by incorporating the requirement for knowledge or recklessness.
It could be argued that the intent of, say, the persons who transport could be inferred from objective and factual circumstances; this might, however, oversimplify the nature of the required mens rea. In any case, there are major evidential problems since the exploitation has not happened yet, and even if it does, those who transported might not be the ones who abused or determined the abusive conditions under which the victim was held. They might have foreseen the consequences of their actions; they might have foreseen that abuses could be side-effects of their actions; but these might not be sufficient for the establishment of the specific mental element. If the persons who recruit or transport are also those who exploit or are involved in the exploitation, then proving the mental element of the crime might not be that problematic. However, in this scenario the purpose of crafting a definition of human trafficking and the introduction of a specific criminal offence appears defeated since these persons do not simply assist the exploitation; they are, in fact, the exploiters.Footnote 47
Exploitation subsequent to the recruitment, transportation, harbouring and receipt could be used as evidence of prior intent on the part of the those who recruit, transport, etc., but as the definition is structured, it is not conclusive. Those who recruit, transport, etc., must have intended to exploit at the time when they recruited, transported, etc.
In sum, the further any actions from the actual situation of exploitation are, the more difficult it would be to find the subjective element of intent. The actual exploitation could be so remote from the actions of recruitment or transportation that it could be impossible to discern a link between these actions and any relevant harm. Accordingly, at face value, the clarification in the Explanatory Report that the criminalization of the actions of ‘recruitment, transportation, transfer, harbouring or receipt of persons’ is meant to ‘encompass the whole sequence of action that leads to exploitation of the victim’ appears convincing. However, as demonstrated above, a closer examination reveals some profound problems.
One final issue is also worthy of attention. As quoted above, the Explanatory Report recognizes, on the one hand, that states are free to decide what mental element to attach to the crime of human trafficking in accordance with their national criminal law. On the other hand, it takes cognizance of the plain wording of the definition of human trafficking, which contains a specific element of intention and adds that ‘[f]or the purpose of the Convention, therefore, there is trafficking in human beings only when that specific intent is present.’ (emphasis added)Footnote 48 What is the significance of this clarification in the Explanatory Report? For the purposes of the CoE Trafficking Convention, which embodies a number of provisions on assistance and protection, the personal scope of migrants considered as victims of human trafficking might be limited to those who have been recruited, transported, etc. by deception or coercion with the specific intention of exploitation.Footnote 49 Therefore, the Explanatory Report appears to suggest that there could be divergent approaches to the ‘for the purpose of exploitation’ element in the context of national criminal law and in the context of delineating the personal scope of individuals that have to be assisted and protected.
3.1.2 Accomplice Liability and the ‘Action’ Element
Certainly, individuals who assist in the exploitation of migrants should be held criminally responsible as long as the necessary subjective and objective elements of the crimes are proven. Criminal law has tools for addressing such kind of situations, tools that pertain to the different modes of participation in crimes. Besides principal liability, there are also secondary forms of criminal liability (accessory/accomplice liability) that are meant to encompass assistance. There are variations at national level as to how different modes of criminal liability are conceptualized.Footnote 50 Despite this variety, however, a basic distinction is made between the principal (the person who carries out the offence and who carries primary liability) and secondary parties who assist and facilitate by aiding, abetting, counselling or procuring the commission of that offence.Footnote 51
A person who recruits migrants for the purpose of their exploitation can be held criminally responsible as an accomplice: by recruiting he/she aided the exploitation, which is the actual crime, committed by another. If the principal perpetrator maintains somebody in conditions amounting to forced labour, individuals who recruit or transport the victims could be accomplices, since they assist the principal in engaging in the proscribed conduct. Therefore, individuals who are in the beginning of the ‘sequence of action that leads to exploitation of the victim’ can be held criminally responsible for their own actions in accordance with the different modes of criminal liability under criminal law. From the perspective of the national criminal law, this might be a much simpler approach for convicting facilitators of exploitation than an approach following the definition of human trafficking given that the latter is defined in a complex manner requiring certain means and specific intent.
It has to be noted that secondary participation is not a crime per se. It operates as a conduit to some other form of criminal wrongdoing. It is a derivative liability since the liability of the accomplice is dependent on the violation of the law by the principal.Footnote 52 As a general rule, if the principal does not commit a crime, the accomplice cannot be held liable. Footnote 53 This means that if the actual exploitation does not happen, the person who has transported or recruited the victim for the purpose of exploitation cannot be held criminally liable.
In comparison, as human trafficking is defined, the persons who recruit, transport, etc. can be held criminally responsible even if exploitation never occurs. Therefore, the crime of human trafficking places the culpability on the intention and on the guilty mind of the persons who recruit, transport, etc. with that special intention. In addition, as the definition of human trafficking is formulated, recruitment, transportation, etc. for the purpose of exploitation, are actions made into offences on their own right. The criminal liability of the person who assists by recruiting or transporting is constituted by his/her own actions and intentions, and arises independently of whether the relevant substantive offence (exploitation) is ultimately committed.
The level of punishment related to the different modes of criminal liability also has to be taken into consideration. The law usually draws a line between, on the one hand, the punishment of principals and, on the other hand, the punishment of accomplices who facilitate the principal in engaging in the proscribed conduct. It could, therefore, be argued that complicity in, for example, the crime of forced labour could result in lower punishment than the commission of human trafficking. This possibility should be contemplated; however, it should be also considered that it is contingent on the specific national criminal law. There is also the possibility that all individuals who act together with a common purpose (for example, the person who recruits, the person who transports and the person who uses the victim by keeping him/her in abusive conditions) are tried and punished as principal offenders. Thus the distinction between joint principal offenders and accessories is a subtle one.Footnote 54 In addition, even upon conviction for the crime of human trafficking, the punishment varies depending on the degree of involvement of the actual perpetrator. Any general assertions that conviction for the crime of human trafficking leads to higher penalties in comparison with conviction as an accomplice in, say, forced labour, are thus suspect.
A final objection to the arguments developed here has to be considered. Even if the accomplice liability approach is simpler, the label of human trafficking is preferable because it also implies facilitation of international cooperation, which might be necessary when crimes are committed across international borders. This is a valid objection and its premises were considered in Section 2.3 above and will be also taken note of in Section 7.3 below, where it will be further elaborated that the definition of human trafficking is meant to serve as a tool enabling the functioning of the international cooperation. However, in no way does this undermine the specific technicalities (as outlined in this section) that have to be accounted for when the crime of human trafficking is applied in the national criminal law context and the ensuing difficulties.
3.2 Deceptive and Coercive Process
For trafficking to be constituted the above-discussed five actions must be committed
[…] 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, […]
Two issues are critical in relation to the ‘means’ element. First, at what point in time is it a relevant consideration? That is, at what point in the sequence of events is coercion or deception determinative of the migrant's victimization and dispositive of the perpetrator's criminal responsibility? Second, what is the required threshold of coercion or deception so that a migrant qualifies as a victim of trafficking and the crime of human trafficking is constituted?
3.2.1 The Timing
There are at least two possible ways of approaching the first question. The focus could be placed on the initial coercion or deception at the time of recruitment when the person is still in the country of origin or at the time of the transportation. Alternatively, the focus might be on the migrant's working and living conditions and his/her ability to change them or escape from them once in the host country. These two approaches yield different outcomes in terms of the scope of migrants that could be recognized as victims and in terms of establishing the constitutive elements of the crime for the purpose of conviction.
The plain reading of the definition of human trafficking suggests that it endorses the first approach, which implies a focus on the initial coercion or deception. As the definition is framed, the ‘means’ element relates to the ‘action’ element.Footnote 55 This approach will be applicable in the following circumstances. For instance, in the context of prostitution, the woman did not intend to work as a prostitute. At the stage of her recruitment, transportation, etc., she was deceived as to the nature of the work that she had to perform in the country of destination. Alternatively, she intended and knew that she would work as a prostitute; however, she was deceived as to the conditions.Footnote 56 In the context of, for example, construction work, the migrants might have been initially deceived as to their working and living conditions. Conversely, if the migrants had initially consented to these conditions, irrespective how abusive they might be, there is no original deception.
The evidential implications from the first approach need to be underscored here. Evidence will be hard to produce because it mainly draws on the will of the affected person.Footnote 57 As the trafficking definition suggests, the will of the person is assessed in relation to the ‘action’ element. It is, however, difficult to prove what the migrants knew and whether or not they were deceived originally.Footnote 58 It is equally difficult to prove what the intentions of the alleged traffickers were. Even if it is proven that there was some form of deception, in the absence of abusive conditions once in the country of destination, it is not likely that the migrant will be viewed as a victim for the purpose of affording protection.
If one were to adopt the second approach, then the focus of the enquiry would be on the abusive circumstances under which migrants are exploited. What the migrants knew or were deceived about at the time of their recruitment, transportation, etc. would not matter. Importantly, the focus on the abusive conditions might imply fewer evidential problems because the abusive circumstances might be objectively verifiable. Assessment of the abusiveness of the working conditions can still be part of the analysis in relation to the third element of the definition of human trafficking, namely the ‘exploitation’ element. In fact, the definition of trafficking is supplemented with the following sentence: ‘[t]he consent of a victim of “trafficking in human beings” to the intended exploitation […] shall be irrelevant where any of the means […] have been used’. Therefore, the means are clearly pertinent to the assessment of whether exploitation has occurred. However, the ‘means’ element needs to be also understood separately from the ‘exploitation’ element; otherwise the addition of means in the definition would not make any sense.Footnote 59 Therefore, as the trafficking definition is framed, the addition of the ‘means’ element requires an assessment of a set of circumstances different from the abusive circumstances under which migrants are exploited. These circumstances appear to be precisely those related to the initial coercion or deception, as discussed above.
Chuang has alluded to arguments against the second approach: ‘[t]he disadvantage, however, of the immediate conditions analysis is that it could fail to take adequately into account how the fact of the initial coercion might have affected the range of options currently available to the woman’.Footnote 60 Chuang explains that if the original coercion or deception approach is applied, then the economic hardships in the country of origin can be taken into account for making the assessment whether the person was deceived or coerced. While this does appear a plausible explanation, to what extent can these socio-economic hardships be taken into consideration? From the perspective of determining the group of migrants who are victims of human trafficking, taking into consideration the conditions in the countries of origin, can expand the range of victims to a breaking point, given that all migrants from poor countries face socio-economic hardship. From the perspective of the application of the criminal law, channelling broad socio-economic problems into the criminal culpability of some individuals (the alleged traffickers) appears dubious. Despite these two problems, Chuang's argument does highlight an important issue: it might be difficult to understand the exploitation of a migrant in the country of destination without looking into the preceding process and, in particular, the relationship between him/her and the exploiter or the traffickers prior to the actual exploitation. For example, it might be difficult to understand why the migrant stays in an exploitative situation without gaining some insights into the preceding process that led to this exploitation. This is a significant revelation because it prompts us to assess the exploitation in the country of destination not in isolation, but within a broader context.
Could there be any other advantages to the original deception or coercion approach? There might be. It adds power to the argument that since, in contrast to smuggled migrants, trafficked migrants have not truly consented to originally migrate or to defy the host state's immigration control rules, they need to be treated differently. In other words, they need preferential treatment since their migration was a result of deception and coercion. As a consequence, they arguably should not be punished for breaches of immigration law, should be granted residence permits and should not be involuntarily returned. While the applicable international legal framework offers some of the above, these benefits are very contingent.Footnote 61 From the perspective of providing victims with assistance and protection, ultimately any benefits that one might expect from the original coercion or deception approach are therefore limited and uncertain.
Overall, then, the definition of human trafficking can be read as requiring original coercion or deception. If it is interpreted to the effect that the original coercion or deception is determinative of the migrant's victimization and dispositive of the perpetrator's criminal responsibility, this is prone to create evidential problems when the initial coercion or deception needs to be demonstrated. However, if we approach the definition of human trafficking as a tool for better understanding the exploitation of migrants in host countries by looking into the preceding process and the initial coercion or deception, this could be of value, because it might explain why migrants stay in exploitative conditions.
3.2.2 The Threshold
The definition of human trafficking contains a long list of means. Some of them, namely ‘threat or use of force or other forms of coercion, of abduction, of fraud’, might be easier to interpret since these might be familiar to the national criminal legislation of many states. The other means in the list, however, have poorly defined limits. There is no certainty as to how inclusive the notions of ‘deception’ and ‘abuse of power or of a position of vulnerability’ have to be for the purposes of justifying the establishment of criminal conviction.Footnote 62 This uncertainty is also troubling for the purpose of defining the category of victims of human trafficking who might be eligible for assistance. Pursuant to the definition, when one of the means has been used, the consent of the trafficked persons is rendered irrelevant. However, the issue of consent cannot be resolved by simply stating that it is irrelevant when one or more of the means has been used. As discussed below, the means in the definition are amorphous and the question of consent reappears when their meaning is under consideration.Footnote 63 Below, I consider various sources that could be of assistance for resolving this uncertainty, leading to the conclusion that the indeterminacy still persists.
It has been suggested that deception refers to the nature of the promised work or service, or to the conditions under which an individual is to undertake that work or perform that service.Footnote 64 There is no hint of clarity, however, as to what conditions the person has to be deceived about and how much he/she has to be conceived about. Generally, there is no clear conceptual framework for the deception standard in the definition of trafficking.
The meaning of abuse of power or of position of vulnerability was highly disputed during the drafting of the Trafficking Protocol, and is similarly vague.Footnote 65 The lack of clarity as to what abuse of position of vulnerability meant, allowed space for conflicting interpretations on the divisive issue of prostitution,Footnote 66 to which I will return in the next section. In one of the initial drafts of the Trafficking Protocol, it was proposed that ‘abuse of a position of vulnerability’ is present when ‘the person has no real and acceptable alternative but to submit to the abuse involved’.Footnote 67 This clarification was omitted in the final version of the definition and it was added in an Interpretative Note to the Trafficking Protocol.Footnote 68 Belgium suggested clarifying vulnerability by reference to the status of an alien in a foreign country: ‘particular vulnerability of an alien due to that person's illegal or precarious administrative status’.Footnote 69 The Special Rapporteur on Violence against Women held a position similar to that of Belgium, holding that trafficking should be construed as a crime involving the movement of a person to a community other than the one in which that person lived; this movement renders the person particularly vulnerable to exploitation.Footnote 70 Ultimately, abuse of a position of vulnerability remained undefined in the definition.
The Explanatory Report to the CoE Trafficking Convention provides the following detailed explanation:
By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim's administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce.Footnote 71
Article 2(2) of the EU Trafficking Directive reproduces the first sentence of the above quotation and in this way makes an important contribution in concretizing the notion and harmonizing its minimum content. Some countries, however, have followed a more expansive understanding of the meaning of abusive of power or of position of vulnerability.Footnote 72 As a result, subtle forms of deception, non-physical and non-violent forms of coercion against migrants can be perhaps more easily captured. In contrast, other countries apply a more limitative understanding.Footnote 73
The UN Office on Drugs and Crime has issued a Guidance Note on ‘Abuse of Position of Vulnerability’ as a Means of Trafficking in Persons. The Note is underpinned by a criminal law approach, and thus seeks to interpret the expression for the purpose of prosecuting. It advocates against an expansive interpretation by emphasizing that the ‘means’ must be ‘of a sufficiently serious nature’. It also states that
[t]he mere existence of proven vulnerability is not sufficient to support a prosecution that alleges APOV [abuse of position of vulnerability] as the means by which a specific ‘act’ was undertaken. In such cases both the existence of vulnerability and the abuse of that vulnerability must be established by credible evidence [emphasis in the original].
[…]
Abuse of a position of vulnerability occurs when an individual's personal, situational or circumstantial vulnerability is intentionally used or otherwise taken advantage of, to recruit, transport, transfer, harbour or receive that person for the purpose of exploiting him or her, such that the person believes that submitting to the will of the abuser is the only real or acceptable option available to him or her, and that belief is reasonable in light of the victim's situation.
Thus the Guidance Note has contributed to the debate by distinguishing between, on the one hand, the existence of vulnerability, and on the other hand, abusing the vulnerability. The latter would imply that the alleged traffickers intentionally took advantage of the vulnerability. This insight might be useful for restricting the contours of the ‘means’ element so that it can become operational in a criminal law context.
Finally, many states have completely removed the ‘means’ element from the definition of the crime of human trafficking at national level.Footnote 74 In this way, they have easily resolved the interpretative problems discussed above. The choice made by these states testifies to the virtual meaningless of the ‘means’ element owing to its vagueness. At the same time, the jettison of the ‘means’ element could be viewed as a positive development since the prosecutor does not have to prove that the process was deceptive or coercive, or that the victim was deceived or coerced, circumstances that might be challenging to furnish as discussed in Section 3.2.1 above. The abandonment of the ‘means’ element could also expand the scope of migrants recognized as victims of human trafficking and thus assisted. However, the removal of the ‘means’ element seriously questions the integrity and usefulness of the definition of human trafficking as a tool for conceptualizing abuses. Human trafficking refers to deceptive or coercive process, and once the ‘means’ element is removed the process is no longer deceptive and coercive.
3.3 For the Purpose of Sexual Exploitation
3.3.1 Drafting the ‘Purpose’ Element
The purpose element of the definition of human trafficking is formulated in the following way:
[…] 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.
The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
The concept of exploitation was present from the very beginning of the drafting of the UN Trafficking Protocol and was clearly link to prostitution.Footnote 75 This is hardly surprising, since in the late 1990s when the drafting process was initiated, the most recent international agreement on the issue of trafficking was the 1949 Trafficking Convention, which replaced the expression ‘immoral purposes’ used in the trafficking instruments of the early twentieth century with the expression ‘exploits the prostitution of another person’. As discussed in the previous chapter, pursuant to the 1949 Trafficking Convention, to ‘exploit the prostitution of another person’ implied that the consent and the agency of the person engaged in prostitution, including actual harm to physical integrity, were irrelevant. Thus the lineage of the term exploitation is the 1949 Trafficking Convention.
At a certain point in the process of drafting, there was an attempt to define ‘sexual exploitation’.Footnote 76 However, there were opposing views as to whether the word ‘forced’ should be included before ‘prostitution’. On the one hand, there was a concern that it might be difficult for victims of prostitution to prove that they had been forced. There were, however, actors in the process of drafting who insisted that it was essential to distinguish ‘victims of prostitution from those who had chosen to engage in prostitution’.Footnote 77 Against the backdrop of this debate, an informal working group was convened, which proposed a version for the definition in which the purpose of human trafficking in effect did not have to be defined.Footnote 78 This formula used ‘exploitation’ as a generic concept. Under this formulation, which was eventually endorsed with some modifications, all that the delegations had to agree upon were examples of exploitation. This formulation was further developed when Mexico proposed the addition of the following purpose: ‘exploitation of the prostitution of others’,Footnote 79 a proposal that was eventually endorsed. A definition of servitude was also proposed:
the condition of a person who is unlawfully compelled or coerced by another to render any service to the same person or to other and who has no reasonable alternative but to perform the service, and shall include domestic servitude and debt bondage.Footnote 80
However, it was subsequently decided that any definition of servitude should be deleted.Footnote 81 References to the existing definitions of forced labour and slavery under international law were also rejected for inclusion in the text of the trafficking definition.
Late in the drafting process, ‘removal of organs’ was proposed as another example of exploitation. It was noted that while ‘trafficking in persons for the purpose of removing organs was within the mandate of the Ad hoc Committee, any subsequent trafficking in such organs or tissues might not be’.Footnote 82 Accordingly, a distinction has to be made between trafficking in organs and trafficking in persons for the purpose of removal of organs, the former not being covered by the definition of human trafficking.Footnote 83
In sum, the divisive issue of prostitution proved to have a key role for the framing of the definition of human trafficking. The ‘purpose’ element of the definition of human trafficking was articulated as ‘exploitation’. ‘Exploitation’ itself was not defined; instead, an illustrative list of examples was included. Since, as it will be explained later, there were diametrically different approaches to the issue of prostitution, an Interpretative Note to the UN Trafficking Protocol gives the following guidance on the prostitution debate:
The protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms ‘exploitation of the prostitution of others’ or ‘other forms of sexual exploitation’ are not defined in the protocol, which is therefore without prejudice to how States parties address prostitution in their respective domestic laws.Footnote 84
Similar clarification can be found in paragraph 88 of the Explanatory Report to the CoE Trafficking Convention. Two comments are required at this point. First, the prostitution debate always moves into the context of a particular society at national level. On that level and within that context, there is a diversity of approaches to prostitution and its regulation. Accordingly, there is no uniformity and no universal signifier of assistance in interpreting the expressions ‘sexual exploitation’ and ‘exploitation of the prostitution of others’ in the definition of human trafficking. This can be illustrated by the fact that the countries within the CoE and the EU have taken different approaches in relation to prostitution.Footnote 85 Accordingly, when the definition of human trafficking is incorporated at national level for the purpose of criminalization, and for the assistance of individuals, the debate about prostitution re-emerges. This implies re-emergence of the debate about what is actually human trafficking in connection with its ‘purpose’ element.
The second point refers to how the clarification that the human trafficking legal framework addresses ‘sexual exploitation only in the context of trafficking in persons’ should be understood. The clarification implies that irrespective of the different approaches to prostitution at national level, the coercive or deceptive process itself, viz. the trafficking, needs to be addressed; the actions pertaining to this process (recruitment, transfer, etc.) need to be criminalized, and migrants who have been subjected to this coercive or deceptive process need to be viewed as victims. At this juncture, it is important to emphasize that in this respect the above-cited clarification confirms the arguments already made above that the definition of human trafficking captures deceptive or coercive processes, not the actual exploitation. If the contrary were to be correct, the clarification about prostitution would hardly make any sense. The clarification also reinforces the argument advanced in Section 3.2 above that it is the original deceptive or coercion that appears to be determinative in the trafficking definition. If states are free to adopt their own approaches to prostitution, including perceiving all prostitution as inherently abusive, as the clarification asserts, then the coercive conditions in the destination country must be irrelevant. Rather it is the deception or coercion in relation to the migration process that is of relevance.
The clarification thus seems to suggest that the debate about prostitution should not actually re-emerge since human trafficking pertains to the deceptive or coercive process. There are, however, two reasons why this in practice cannot be the case. First, as explained above, there is indeterminacy as to the levels of coercion and deception involved. There are also evidential issues that are difficult to resolve. Second, given that ‘for the purpose of exploitation’ is an indispensable element of the definition of human trafficking, without some basic understanding as to the meaning of exploitation, it is difficult to achieve an understanding of what human trafficking actually is given that it remains necessary that the ‘action’ element is undertaken with a view of exploitation.
3.3.2 Actors in Opposition to the Term ‘Exploitation’
Throughout the drafting process, there were actors who opposed the inclusion of the concept of exploitation in the definition of human trafficking. The Netherlands was one of these. It proposed limiting the purpose element to slavery, servitude or forced labour and defining these by reference to the already existing definitions in international law.Footnote 86 The UN High Commissioner for Human Rights had an identical proposal. The Commissioner expressed strong discontent with the term sexual exploitation and recommended its exclusion since this would ‘serve to avoid the implementation difficulties inherently associated with undefined, imprecise and emotive terms such as “sexual exploitation” when used in connection with adults’.Footnote 87 The Commissioner reaffirmed this position with a second note submitted jointly with the UN Children's Fund and the International Organization for Migration. The note reiterated the initial position that abuses have to be conceptualized as ‘slavery, forced labour (including bonded labour or debt bondage) and servitude’. The Note clarified that as opposed to the term exploitation, the references to slavery, servitude, forced labour, bonded labour and servitude are consistent with existing international law.Footnote 88 The ILO also proposed deletion of the references to sexual exploitation and was in favour of including the concepts of forced labour and serfdom.Footnote 89 The Special Rapporteur on Violence against Women also intervened in the drafting of the UN Trafficking Protocol, suggesting that the phrase sexual exploitation should be deleted since
the term was subject to a wide range of divergent interpretations, according to whether all activities in the sex industry constituted ‘sexual exploitation’ per se or whether only sex work under exploitative or slavery-like conditions could qualify as ‘sexual exploitation’.Footnote 90
The Special Rapporteur was in favour of the phrase ‘trafficking in persons into slavery-like conditions’. In her opinion, ‘slavery-like conditions’ encompassed ‘domestic work, forced marriages and forced motherhood, which were not traditionally encompassed under the term “forced labour”’.
In sum, there were actors who clearly warned against the inclusion of the concepts of exploitation and sexual exploitation. They voiced their concerns about their imprecision, and were also concerned about the moral underpinnings of the concepts originating from the 1949 Trafficking Convention and the associated controversies around the approach to prostitution and women's sexuality. The opposition to the term sexual exploitation was, however, without prejudice to the conviction that forced prostitution should be addressed. These actors rather expressed preference for adopting already established concepts and terminology from human rights law.
3.3.3 Feminist Clashes at Palermo
The drafting of the UN Trafficking Protocol was accompanied by intense lobbying by feminist organizations with opposing ideological positions on the issue of prostitution. The most notable among these organizations were the Human Rights Caucus and the Coalition against the Trafficking in Women. The former perceived prostitution as work, and as long as there was no violence and coercion involved, it viewed prostitution as legitimate labour. The Coalition perceived all prostitution as inherently exploitative and an inherent manifestation of violence. These organizations’ advocacy projects at Palermo illuminated the discussions on the Trafficking Protocol and in particular the crafting of the definition.Footnote 91
Chantal Thomas has described the two feminist camps as representing ‘individualist’ feminism and ‘structuralist’ (radical) feminism. Pursuant to the ‘individualist’ approach endorsed by the Human Rights Caucus, the definition of human trafficking must recognize the possibility of an individual choice to engage in prostitution. The Caucus's main focus was ensuring that the UN Trafficking Protocol protected the human rights of trafficked persons. This position left space for the legalization of prostitution and activities surrounding prostitution.
The ‘structuralist’ approach advocated that all prostitution was necessarily trafficking and thus coerced; all prostitution was violence because it ‘reproduces and enforces subordination of women by men’ and because it reflected and reproduced wider conditions of domination over women.Footnote 92 The 1949 Trafficking Convention and the definition therein are in line with this latter position. The Coalition against the Trafficking in Women advocated for making prostitution illegal and for punishing clients, brothel owners and other ‘third parties’, and embraced the power of criminal law. In their view, women prostitutes should be rescued, not criminalized; however, criminal law should be used to stigmatize clients, brothel owners, managers and any third party assisting women to travel and work in the sex industry.Footnote 93
Despite the ideological division, the two camps had one thing in common: both were in favour of the elaboration and adoption of an international agreement on trafficking. Both regarded the adoption of an international instrument on trafficking as a positive development and used the momentum to pursue their views on the issue. There was, however, an alternative position, which entailed rejecting the term ‘trafficking’ and the need for elaboration of international trafficking legal instrument. This was the stance taken by sex-workers’ rights organizations. They were represented at Palermo since they were part of the Human Rights Caucus. However, as Jo Doezema reports, they faced a dilemma:
On the one hand, we recognized that working through a lobby was necessary if we hoped to have any influence on the Protocol. On the other, because sex workers questioned the legitimacy of the anti-trafficking framework, we were reluctant to lend support to the creation of an international anti-trafficking agreement.Footnote 94
They resolved their dilemma by exercising overt resistance to the drafting of the Trafficking Protocol and stealthy support for the Human Rights Caucus lobby. The overt position of the Network of Sex Work Projects, an organization supporting sex workers’ rights, on the initiative to draft a new instrument was the following:
Historically, anti-trafficking measures have been more concerned with protecting women's ‘purity’ than with ensuring the human rights of those in the sex industry. This approach limits the protection afforded by these instruments to those who can prove that they did not consent to work in the sex industry. It also ignores the abusive conditions within the sex industry, often facilitated by national law and places (migrant) sex workers outside of the range of rights granted to others as citizens and workers.Footnote 95
The representatives of the Network of Sex Work Projects pointed out that the term ‘trafficking’ was confusing and misleading. They took the stance that rather than protection, the new legal document would punish and marginalize prostitutes. The Network proposed abandoning of the term, finding ‘alternatives to the term trafficking’ and developing ‘new language to describe abuses in labour migration and abusive conditions in the sex industry separate from national interests in protecting borders’.
The disagreement between the two opposing feminist camps on the issue of prostitution, which was reflected in the positions adopted by the negotiating states, could not be solved on its substance. To a certain extent, it was the concept of exploitation that offered a solution to the conflict since ‘exploitation’ could be interpreted to the advantage of both conflicting positions at the same time. Nevertheless, the mere retention of this term from the 1949 Trafficking Convention appears more to favour the radical feminist position.
Thus both feminist camps claimed victory in the adoption of the Trafficking Protocol. The radical feminists have emphasized the elements of ‘exploitation’ and ‘abuse of position of vulnerability’ to argue that any migration for prostitution meets the definition of trafficking. The position of the ‘individualist’ feminists has been more ambivalent. On the one hand, they have recognized that ‘exploitation’ was intentionally left undefined in the human trafficking definition since ‘countries have different laws and policies on adult sex work and that many countries would not want or be able to sign the Trafficking Protocol if it forced them to change their prostitution laws’. On the other hand, however, the Human Rights Caucus has recommended total omission of the expressions ‘exploitation of the prostitution of others or other forms of sexual exploitation’ from domestic laws since ‘forced or coerced adult sex work (and any other forced or coerced work) and all child participation in sex work is covered in the Trafficking Protocol in the context of slavery, forced labour or servitude’.Footnote 96
The bottom line, however, is that although the two camps could pursue their agendas at Palermo to gain support from the negotiating states, it was the radical feminists’ position that fits better into the human trafficking legal framework. The main tool of this framework is criminal law, which corresponds to radical feminism's reliance on robust criminal law response. The position that all migrant women working in the sex industry are victims of trafficking also neatly matches the prominent migration control aspect of the human trafficking legal framework since it legitimizes enhancement of border control measures as necessary to protect all migrant women from allegedly migrating towards their future exploitation. And, finally, the retention of the concept of ‘exploitation’ from the 1949 Trafficking Convention is a success for the radical feminists.
One can sympathize with their position, since it reinforces the idea that all migrant women who engage in prostitution need to be assisted and supported and there would be no need to prove coercive circumstances. In this way, the most significant weakness of the sex-work position that it may often be difficult to draw the line between voluntary and forced prostitution, can be avoided. Yet in light of the scope of positive obligations under the human trafficking legal framework, which states have actually adopted to assist and protect, this initial sympathy might wane. In addition, arguments in favour of exponentially expanding the group of beneficiaries of assistance and protection have a curbing effect as to the scope of assistance and protection measures that states will be willing to become bound to afford.Footnote 97
The radical feminists’ persistence thus appears difficult to defend since their position was advanced in the context of the drafting of a legal framework that was not truly meant to be about protection and assistance of migrants, including migrant women who are prostitutes. It was rather meant to be predominantly about dispersal of criminal law by obligating states to criminalize certain conduct and effective cooperation between states in relation to the application of the criminal law. Most importantly, if violence is to be perceived as something integral to any prostitution, then we will not able to distinguish egregious forms of abuses in the eyes of the law. I will elaborate further upon this very issue later, in Chapter 7, where I discuss how the definition of human trafficking can equally refer to both voluntary non-abusive migration and severe forms of abuses, and how this renders the definition ineffective for reflecting the gravity of abuses against migrants.
3.4 For the Purpose of Labour Exploitation
With the trafficking definition, the term exploitation is meant to be applied in contexts other than prostitution, including labour exploitation. The dilemma here is how to distinguish between abuses that should be an object of criminalization and abuses that are an expression of general socio-economic inequalities and injustices, and which are not intended to be captured by the criminal law. The problem is how to recognize the point at which socially undesirable situations cross the line and enter the realm of criminal law. A similar dilemma is present when defining the group of migrants to be assisted as victims of human trafficking. The question that needs to be addressed is what level of gravity is required for it to be determined that the person has to be assisted as a victim of human trafficking.
In this section, I first emphasize the uncertain meaning of the term exploitation. I then consider propositions as to how exploitation could be understood. While still doubtful whether exploitation could be a useful conceptual tool, I suggest that proportionality assessment could be a conceivable way of introducing more clarity.
The term exploitation is not defined in international law. However, the definition of human trafficking gives examples of certain exploitative practices, namely forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs. The EU Trafficking Directive has added forced begging and exploitation of criminal activities to this list. The former, however, is covered by the ‘purpose’ element only if it is a form of forced labour. This is made explicit by Article 2(3) and Recital 11 of the preamble. Thereby, the EU Trafficking Directive has simply clarified that a person can be subjected to forced labour in the context of forced begging. Recital 11 of the preamble of the directive also attempts to define exploitation of criminal activities. However, the definition is circular since it basically says that ‘exploitation of criminal activities’ is a form of exploitation.
Allain has argued that exploitation does not have to be defined:
[…] exploitation – the taking of unfair advantage of another person – is not defined in international law, nor does it need to be. Exploitation is categorical rather than definitional; it is a large tent under which the international community has sought to address specific issues over the last two hundred years.Footnote 98
Allain correctly points out that the definition of human trafficking enumerates certain abuses under the heading of exploitation and leaves open the possibility of the inclusion of other abuses. Yet the plain reading of the text of the definition does not suggest that exploitation is only categorical. In addition, the categories provided as examples of exploitation include the term exploitation, e.g. ‘sexual exploitation’, ‘exploitation of the prostitution of others’, ‘exploitation of criminal activities’.
The definition of human trafficking indicates that exploitation shall include, ‘at a minimum’ the abuses of slavery, servitude, etc. This might be interpreted as a suggestion that exploitation is more expansive since it might conceivably be interpreted to include other abuses potentially involving a lower level of harm. For example, the clarification in Article 4(b) of the CoE Trafficking Convention that consent to the intended exploitation is irrelevant when some means (coercion, deception, abuse of position of vulnerability, etc.) has been used, could justify the suggestion that exploitation could be interpreted in light of the ‘means’ element in the definition of human trafficking. This suggestion, however, cannot be uncritically accepted since the rationale behind Article 4(b) of the CoE Trafficking Convention is not to provide a definition of exploitation. It is rather to enumerate circumstances when consent to exploitation is irrelevant, which might have the effect of making the absence of consent crucial for the purpose of defining exploitation.
The dilemma of how to conceptualize exploitation needs to be ultimately resolved at national level,Footnote 99 since international law does not offer a solution.Footnote 100 Nevertheless, it is worth considering what solutions could be advanced.
Various authors have engaged with the meaning of exploitation in a criminal law context and in other legal contexts. Let it suffice here to mention that moral values and unfairness have been advanced as the bottom line for assessing whether a conduct is exploitative.Footnote 101 Marks has argued that socio-economic injustices in the existing system produce exploitative relations.Footnote 102 Marks has claimed that exploitative relations are legitimized by the law and that they are within the logic of the existing system. These insights might be correct; however, they are not operational for the purpose of convicting alleged traffickers. They might be useful for the purpose of categorizing migrants as victims of human rights violations because they draw attention to structural factors; however, one can also question whether structural factors could be sufficient to categorize a migrant as a victim for the purpose of affording protection and assistance as envisioned by the human trafficking framework.
Other authors have argued that exploitation should be perceived as a continuum covering a spectrum that ranges from decent work to situations of forced labour.Footnote 103 This explanation is equally unhelpful for the purposes of convicting perpetrators and identifying migrants in need of assistance. From the perspective of the national criminal law, the argument that exploitation can be defined as a continuum could be of relevance in terms of determining the penalties that need to be imposed on convicted traffickers. From a policy-orientated perspective, the continuum model could be illuminating since it reminds us that we should not focus only on the worst forms of abuses. However, from a formal legal perspective, the continuum argument offers little leverage.
Generally, exploitation is associated with denial of decent working conditions and of fair remuneration. Reference to socio-economic rights as enshrined in human rights law might have some explanatory power. More specifically, the right to ‘the enjoyment of just and favourable conditions of work’, which includes fair wages, is pertinent.Footnote 104 This right, however, is qualified since it can be progressively realized. Notably, there is no uniformity with regard to working conditions and wages around the globe, including within the CoE. In connection with this, Noll has asked the following questions as to how to evaluate exploitation in a migration context:
Could it be the unequal benefits derived from trafficking? This would be a reasonable thought, leading us to exercises in comparison. What is to be compared? Most likely, the benefits of the trafficker with the benefits of the person to be trafficked. […] What comparison will be constitutive for the benefit of the trafficked person? Will we compare his or her benefit in the destination country to that derived by staying put in the country of origin? Or we shall compare to a person in a comparable situation in the country of destination? While a salary below the minimum wage of the destination country might make us associate it with exploitation, that salary may very well exceed the one realistically available to the trafficked person in the country of origin.Footnote 105
These questions point to the lack of certainty as to the meaning of exploitation, especially in a migration context. Clearly, if we use the conditions in the countries of origin as a factor for assessing whether migrants in host countries are exploited, then the scope of the concept will shrink. Accordingly, we might choose another benchmark against which to test whether certain practices are exploitative. Host states might choose their own labour legislation for that purpose. In this sense, the yardstick will be the generally accepted conditions in the host country as reflected in the applicable national legislation. Indeed, some authors have proposed exactly this yardstick:
[…] exploitation is understood as taking unfair advantage of another person in a work situation, where the element of ‘unfairness’ is established against a benchmark established in law. Thus, a person will be exploited where they have been taken unfair advantage of by another person acting unlawfully – be it by reference to criminal, human rights or employment law – for example by deducing unlawful charges from a payslip or demanding hours of work in excess of what is legally prescribed. The reverse is also true, that an employer who is acting lawfully is not exploiting his or her employee.Footnote 106
This solution could be acceptable for the purpose of triggering states’ obligation of assisting and protecting migrants who are identified as victims of human trafficking; although, it also seems to expand the category quite a lot. If this standard is followed, then a migrant who works ‘in excess of what is legally prescribed’, including by being paid below the minimum salary, will be a victim of human trafficking provided that the other elements of the definition are also present.
It is certainly highly questionable, however, whether such an understanding of exploitation is appropriate in a criminal law context. After all, states have not criminalized any violation of their labour legislation, even though they might choose to do so in the context of human trafficking. In this sense, organizing the migration of a person by means of deception for the purpose of his/her exploitation, understood as subjecting him/her to working conditions not in compliance with the national employment legislation (e.g. payment of lower wages), might be criminalized as human trafficking. In sum, although payment of lower wages as such is not criminalized, when it constitutes an element of human trafficking, it could be criminalized. In any case, the flaw of the above-quoted proposition is that it mixes criminal law, labour law and human rights law, which are distinct legal frameworks with distinct purposes and standards. Finally, there is another major weakness. On the one hand, the yardstick in the above quotation might be too low for reasons already explained, leading to a very broad meaning of exploitation. On the other hand, however, the benchmark of ‘what is legally prescribed’ might be too high and thus completely unacceptable, because there might be workers excluded by the design of the national legislation from labour protection. I shall return to this point below.
Another possible option for conceiving exploitation is by reference to the national criminal legislation. Thus any movement by means of deception or coercion for the purpose of some illegal activities could constitute human trafficking.Footnote 107 The national criminal law or certain activities criminalized at national level would thus constitute a benchmark for gauging exploitation. However, if any activity criminalized by the national legislation can constitute the ‘purpose’ element of human trafficking, then the conceptual limits of human trafficking will be extremely indeterminate. Various practices could be lumped together under the heading of human trafficking, leading in effect to conceptual disintegration. In addition, all work where the activity itself is illegal will be perceived as exploitative, which might expand the concept too much. For example, cannabis production as such without any deception, force or restraints, will be perceived as exploitative. A presumption that all work where the activity itself is illegal may be exploitative is thus problematic.
Finally, the EU Employer Sanctions Directive could be helpful for addressing the definitional uncertainty surrounding the term exploitation. The directive obliges Member States to establish the following criminal offence: the employment of illegally staying third-country nationals accompanied by ‘particularly exploitative working conditions’.Footnote 108 Most importantly, Article 2(i) of the EU Employer Sanctions Directive defines ‘particularly exploitative working conditions’:
[…] working conditions, including those resulting from gender based or other discrimination, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity.
A similar benchmark could be used for defining exploitation as the purpose of human trafficking.Footnote 109 The application of this benchmark requires a comparison between the conditions required by the applicable labour legislation (salary, working hours, days off, etc.) and the actual conditions. Then, a test of severity would have to be applied. This would involve an assessment of how gross the differences between the required conditions and the actual working conditions were. The effects on the migrant's health and safety could be relevant factors in the application of the severity test. The EU Employer Sanctions Directive, then, points to a proportionality analysis and a severity threshold as tools for assessing exploitative circumstances. While these tools appear workable, a serious deficiency has to be acknowledged: the terms of employment of legally employed workers in certain occupations where the workers happen to be predominantly migrants (domestic workers, agricultural workers, etc.) might be very bad with little legal protection. As a consequence, no migrant domestic worker is treated disproportionately badly since all of them are treated badly or some are simply treated worse. Thus there might be no proper comparability benchmark. Chapter 6 will suggest similar proportionality analysis and a severity threshold as useful tools for defining forced labour. It will also propose a corrective so that the above deficiency can be remedied. Thus if this approach is followed, eventually, exploitation and forced labour might refer to the same level of harm, in that both might refer to circumstances where abusiveness is gauged by way of a proportionality test.
3.5 Conclusion
It might be hard to make the definition of human trafficking workable in the context of criminal law and for the purpose of identifying migrants who need to be assisted and protected. Human trafficking pertains to a process that might or might not result in exploitation, a process that can be perceived as abusive since it is done by certain means (deception, coercion, etc.) for the purpose of exploitation. The addition of the ‘purpose’ element can lead to considerable evidential complications in terms of proving the specific intent of perpetrators who are distanced from the actual exploitation and when the actual exploitation has not yet happened. In addition, when the actual exploitation, i.e. slavery, servitude, etc., is criminalized, and as I will argue in Chapter 8 states are in fact obliged to do so, individuals who recruit, transport, etc. can be still held criminally responsible as assistants. This analysis suggests that from the perspective of the application of the national criminal law, there are already existing and perhaps simpler tools for holding perpetrators who assist the exploitation of individuals, criminally responsible. Moreover, there is no clarity as to the required thresholds of coercion and deception. Accordingly, neither broad interpretations nor restrictive interpretations are excluded. This ambiguity further undermines the usefulness of the definition of trafficking. Similar definitional uncertainty characterizes the ‘purpose’ element. Ultimately, it is the national legislation where these definitional ambiguities have to be resolved, and I have suggested possible ways of delimiting the meaning of exploitation. In particular, if exploitation is interpreted with reference to a proportionality test, i.e. exploitation is constituted when there is a severe disproportion between the actual and the legally required working conditions, it should not refer to a level of abuses different from those intended to be covered by the term forced labour, whose meaning will be scrutinized in Chapter 6. Thus the concept of exploitation, which has been placed at the heart of the definition of human trafficking, might not have any added value. If exploitation is construed more widely, then its definitional limits cannot be determined at the level of international law, which makes the concept difficult to understand. However, indeterminacy is a salient feature not exclusive to the definition of human trafficking. It could be noted that the definitions of slavery, servitude and forced labour might be equally unclear. Whether this is indeed the case and whether the introduction of the definition of human trafficking has led to betterment of conceptual clarity are questions that will be answered in Chapter 7.
The lack of certainty as to the thresholds of coercion, deception and exploitation might not be as troubling in the context of identifying migrants to be assisted and protected since the principle of lex certa is not pertinent and, thus, expansive interpretations can be regarded as acceptable. Nevertheless, the lack of definitional certainty implies lack of certainty as to which migrants can be considered victims of human trafficking. This uncertainty is detrimental to conceptual clarity and can lead to poorly justified decisions, an example to this effect being the Rantsev v. Cyprus and Russia judgment delivered by the ECtHR, which will be examined in Chapter 7.
