Multilevel Regulation against Trafficking in Human Beings

Transcription

1 Schriften zum Migrationsrecht 16 Sarah Krieg Multilevel Regulation against Trafficking in Human Beings A Critical Application Analysis of International, European and German Approaches Nomos

2 Schriften zum Migrationsrecht Herausgegeben von Klaus Barwig, Akademie der Diözese Rottenburg-Stuttgart Prof. Dr. Ulrike Davy, Universität Bielefeld Prof. Dr. Andreas Fischer-Lescano, Universität Bremen Prof. Dr. Dr. h.c. Kay Hailbronner, Universität Konstanz Prof. Dr. Winfried Kluth, Universität Halle-Wittenberg Band 16

3 Sarah Krieg Multilevel Regulation against Trafficking in Human Beings A Critical Application Analysis of International, European and German Approaches Nomos

4 Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at a.t.: Berlin, Univ., Diss., 2013 ISBN: HB epdf British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB Library of Congress Cataloging-in-Publication Data Krieg, Sarah Multilevel Regulation against Trafficking in Human Beings A Critical Application Analysis of International, European and German Approaches Sarah Krieg 402 p. Includes bibliographic references. ISBN Edition 2014 Nomos Verlagsgesellschaft, Baden-Baden, Germany Printed and bound in Germany. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, re-cording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under 54 of the German Copyright Law where copies are made for other than private use a fee is payable to Verwertungs gesellschaft Wort, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the autor.

5 Abbreviations 13 Tables 15 A. Introduction 13 B. Reading Problem Representations in Law (Critical Application Analysis) 32 I. Critical Policy Analysis Approaches Constructing Reality and Social Problems through Policy Formulations: Problem Representation and Framing Reading Problem Representations 36 II. Reading Problem Representations in Law The Power of Law Reading Problem Representations in a Multilevel Context Sensitising Questions: Prognosis and Diagnosis Underlying Presuppositions and Gender Analysis Law, Women, Sex and Gender Preliminary Conclusions: Gender Analysis Historical Constitution Preliminary Conclusions: Critical Application Analysis of Multilevel Regulation Against Trafficking in Human Beings 65 C. International Law of the United Nations 68 I. Historical Constitution Early Anti-Slavery and Forced Labour Efforts Initial Efforts for Women s Rights and Gender Equality International Cooperation in Crime Prevention against Organized Crime The UN Palermo Protocol in Historical Context 84 II. The UN Palermo Protocol The Drafting Process Subject Matter (What s the problem?): The New Exploitation Paradigm 90 7

6 2.1 From Prostitution to Exploitation Defining Prostitution and Sexual Exploitation The Question of Consent Other Forms of Exploitation: Forced Labour or Services, Slavery or Practices Similar to Slavery, Servitude and Removal of Organs Special Link between Trafficking and Prostitution Transnationality and Organized Crime Involvement Preliminary Conclusions Affected Subjects (For whom?): Victims versus Agents UN High Commissioner for Human Rights Principles and Guidelines Recommended Principles Recommended Guidelines Preliminary Conclusions Convention Relating to the Status of Refugees Persecution in the Home Country Member of a Particular Social Group Preliminary Conclusions Summary: Problem Diagnosis in UN Palermo Protocol Problem Prognosis in UN Palermo Protocol Human Rights Provisions Prevention, Cooperation and other Measures Summary: Problem Prognosis Preliminary Conclusions 124 III. The UNCTOC Approach: Anti-Slavery, Women s Rights and Organized Crime Anti-Slavery and Forced Labour as a Concern Women s and Human Rights Concerns International Cooperation to Address Organized Crime 130 D. European Union and Communities 132 I. Historical Constitution Cross-Border Cooperation in Justice and Home Affairs The Fight Against Illegal Immigration Violence against Women, Women s Rights and Gender Equality 141 II. Contemporary Regulation and Programmes: An Overview 143 III. The EU FD 2002/629/JHA against Trafficking in Human Beings 144 8

7 1. Subject-matter (What s wrong?) and Affected Subjects (For whom?): Trafficking in Human Beings for Sexual and Non-Sexual Exploitation Organized Crime From Trafficking in Women for the Purpose of Sexual Exploitation to Trafficking in Human Beings for Sexual and Labour Exploitation Special Link between Trafficking in Human Beings and Prostitution Cause of Concern (Why is it a problem?) and Attribution of Causation and Responsibility (Who/ What is responsible?): Relative Silence Prescribed Action (What should be done?): Criminalization Actor(s) (Who should do something?): Member States Objective (What is the objective?): Fight and Prevent Trafficking in Human Beings and Foster Cooperation Target and Beneficiaries Preliminary Conclusions Prostitution Undocumented Work, Labour Standards and (Employment) Inequalities Illegal Immigration as the Problem: Framework Decision versus Directive Why EU Internal and External Action? Summary 171 IV. The EU Directive 2011/36/EU on Trafficking in Human Beings Subject-Matter (What s wrong?) and Affected Subjects (For whom?): Organized Crime, Victim s Rights, Migration and International Law Organized Crime as the Problem Infringement of Victim s Rights and Interests Judicial Cooperation in Criminal Matters (Art 82, 83 TFEU) versus Immigration (Art 79 TFEU) Keeping Pace with International Developments: The CoE Convention Particularly Vulnerable Victims Cause of Concern (Why is it a problem?): Human Rights, Rule of Law and Harmonization Attribution of Causation and Responsibility (Who/ What is responsible?): The 18 drivers 183 9

8 4. Prescribed Action (What should be done?) by Member States (Operational) Objectives Target and Beneficiaries Preliminary Conclusions The Attribution of Causation in the Impact Assessment s 18 drivers Root Causes Poverty, Migration and Development Gender Equality in Countries of Origin Criminalize Demand Victims Rights and Rising the Numbers of Reports, Investigations and Prosecutions Particularly Vulnerable Victims Why EU Internal and External Action? Summary 210 V. The EU Directive 2004/81/EC on Short-Term Residence Permits Subject-Matter (What is wrong?) and Affected Subjects (For whom?): Illegal Immigration Cause of Concern (Why is it a problem?): Relative Silence Attribution of Causation and Responsibilities (Who/ what is responsible for the problem?): Ineffective Prosecution Prescribed Action and Actor(s) (What should be done? By whom?): Granting Residence Permits Objective (What is the objective?): Combating Illegal Immigration Target and Beneficiary Preliminary Conclusions: Trafficking, Smuggling and Illegal Immigration Trafficking in Human Beings, Human Smuggling and Illegal Immigration Who to Blame? Summary 223 VI. The EU Approach: Between Criminal Law, Human Rights and Border Control Law Enforcement versus Human Rights Human Rights against Illegal Immigration The EU Approach and Multi-Disciplinary Perspectives Dimensions of Gender and Gender Equality Summary

9 E. Germany 235 I. Historical Constitution of German Trafficking Offences 235 II. Human Trafficking for the Purpose of Sexual Exploitation, 232 StGB Cause of Concern (Why is it a problem?): Protected Legal Interests and Concurrence of Offences Sexual Offences Offences against Personal Freedom Immigration Offences Personal Freedom, Sexual Self-Determination, Public Order, (Internal) Security and Morality Subject Matter (What is wrong?): Definitional Elements Exploiting Another Person s Predicament or Helplessness in a Foreign Country Inducing Persons into Prostitution or Exploitative Sexual Activity Element of Exploitation With or Without Consent More Intense Forms of Prostitution Inducing a Person under 21 Years of Age Aggravated Trafficking, 232(3) StGB Aggravated Trafficking, 232(4) StGB Assisting in Human Trafficking, 233a StGB Preliminary Conclusions: Prostitution as the Problem? Affected Subjects (For whom?): Gender and Nationality Crime Statistics The Term Victim in the German Criminal Code: Gendered and Neutral Language Human Trafficking vs Trafficking in Women Where are the (Real) Victims? Transnational Dimension Attribution of Cause and Responsibility (Who/What is responsible?): Organized Crime and the Client The Division of Labour in the Trafficking Chain The Client Prescribed Action and Actors (What should be done? By whom?): Punishment and Protection Investigating and Punishing (Organised) Crime Is Human Trafficking a Hidden Crime? Methods and Means of Investigation and Punishment

10 5.2 Victim and Witness Protection No Criminal Prosecution and Residency Police Protection of Injured Persons and Witnesses Procedural Rights and Protections Legal Counsel Assisting Witnesses and Victims Recorded Examinations and their Showing Concealment and Non-Disclosure of the Victim s Identity Proceedings In Camera and Other Measures to Limit the Right to be Present and to Inspect Files Compensation Further Rights Beyond Criminal Proceedings Objective Target and Beneficiaries Preliminary Conclusions 313 III. The German Approach Prostitution as the Problem or the Problem with Prostitution Definitional and Regulatory Approaches to Prostitution German Approach to Prostitution after the ProstG Migration as the Problem or the Problem with Migration The Silenced Problem of Gender and Gender Equality The Term and Meaning of Human Trafficking in Comparative Perspective 327 F. Conclusions 332 I. The UN, EU and German Approach in Context The Nested Problem of Prostitution The Nested Problem of Migration Transnational Element Human Trafficking vs Smuggling in Persons The Border Control Imperative The Crime Approach 341 II. Dimensions of Gender and Gender Equality 345 III. Multilevel Legal Interaction and the EU s Role In-Between 352 IV. Outlook: Connecting Needs and Accepting Vulnerability Beyond the Trafficking Threshold 355 List of Cases, Legislation and Documents 361 Bibliography