Schriften zum Migrationsrecht 16 Sarah Krieg Multilevel Regulation against Trafficking in Human Beings A Critical Application Analysis of International, European and German Approaches Nomos
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
Sarah Krieg Multilevel Regulation against Trafficking in Human Beings A Critical Application Analysis of International, European and German Approaches Nomos
Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at http://dnb.d-nb.de a.t.: Berlin, Univ., Diss., 2013 ISBN: HB 978-3-8487-1320-2 epdf 978-3-8452-5414-2 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB 978-3-8487-1320-2 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 978-3-8487-1320-2 1. Edition 2014 Nomos Verlagsgesellschaft, Baden-Baden, Germany 2014. 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.
Abbreviations 13 Tables 15 A. Introduction 13 B. Reading Problem Representations in Law (Critical Application Analysis) 32 I. Critical Policy Analysis Approaches 33 1. Constructing Reality and Social Problems through Policy Formulations: Problem Representation and Framing 34 2. Reading Problem Representations 36 II. Reading Problem Representations in Law 38 1. The Power of Law 38 2. Reading Problem Representations in a Multilevel Context 42 3. Sensitising Questions: Prognosis and Diagnosis 48 4. Underlying Presuppositions and Gender Analysis 52 4.1 Law, Women, Sex and Gender 52 4.2 Preliminary Conclusions: Gender Analysis 60 5. Historical Constitution 64 6. 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 69 1. Early Anti-Slavery and Forced Labour Efforts 72 2. Initial Efforts for Women s Rights and Gender Equality 74 3. International Cooperation in Crime Prevention against Organized Crime 78 4. The UN Palermo Protocol in Historical Context 84 II. The UN Palermo Protocol 85 1. The Drafting Process 86 2. Subject Matter (What s the problem?): The New Exploitation Paradigm 90 7
2.1 From Prostitution to Exploitation 93 2.2 Defining Prostitution and Sexual Exploitation 96 2.3 The Question of Consent 97 2.4 Other Forms of Exploitation: Forced Labour or Services, Slavery or Practices Similar to Slavery, Servitude and Removal of Organs 98 2.5 Special Link between Trafficking and Prostitution 101 2.6 Transnationality and Organized Crime Involvement 103 2.7 Preliminary Conclusions 104 3. Affected Subjects (For whom?): Victims versus Agents 105 3.1 UN High Commissioner for Human Rights Principles and Guidelines 109 3.1.1 Recommended Principles 110 3.1.2 Recommended Guidelines 111 3.1.3 Preliminary Conclusions 113 3.2 Convention Relating to the Status of Refugees 114 3.2.1 Persecution in the Home Country 114 3.2.2 Member of a Particular Social Group 115 3.3 Preliminary Conclusions 115 4. Summary: Problem Diagnosis in UN Palermo Protocol 118 5. Problem Prognosis in UN Palermo Protocol 119 5.1 Human Rights Provisions 119 5.2 Prevention, Cooperation and other Measures 122 5.3 Summary: Problem Prognosis 123 6. Preliminary Conclusions 124 III. The UNCTOC Approach: Anti-Slavery, Women s Rights and Organized Crime 127 1. Anti-Slavery and Forced Labour as a Concern 128 2. Women s and Human Rights Concerns 129 3. International Cooperation to Address Organized Crime 130 D. European Union and Communities 132 I. Historical Constitution 133 1. Cross-Border Cooperation in Justice and Home Affairs 135 2. The Fight Against Illegal Immigration 137 3. 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
1. Subject-matter (What s wrong?) and Affected Subjects (For whom?): Trafficking in Human Beings for Sexual and Non-Sexual Exploitation 145 1.1 Organized Crime 146 1.2 From Trafficking in Women for the Purpose of Sexual Exploitation to Trafficking in Human Beings for Sexual and Labour Exploitation 147 1.3 Special Link between Trafficking in Human Beings and Prostitution 150 2. Cause of Concern (Why is it a problem?) and Attribution of Causation and Responsibility (Who/ What is responsible?): Relative Silence 151 3. Prescribed Action (What should be done?): Criminalization 151 4. Actor(s) (Who should do something?): Member States 152 5. Objective (What is the objective?): Fight and Prevent Trafficking in Human Beings and Foster Cooperation 152 6. Target and Beneficiaries 153 7. Preliminary Conclusions 154 7.1 Prostitution 155 7.2 Undocumented Work, Labour Standards and (Employment) Inequalities 157 7.3 Illegal Immigration as the Problem: Framework Decision versus Directive 159 7.4 Why EU Internal and External Action? 163 8. Summary 171 IV. The EU Directive 2011/36/EU on Trafficking in Human Beings 172 1. Subject-Matter (What s wrong?) and Affected Subjects (For whom?): Organized Crime, Victim s Rights, Migration and International Law 174 1.1 Organized Crime as the Problem 175 1.2 Infringement of Victim s Rights and Interests 177 1.3 Judicial Cooperation in Criminal Matters (Art 82, 83 TFEU) versus Immigration (Art 79 TFEU) 177 1.4 Keeping Pace with International Developments: The CoE Convention 178 1.5 Particularly Vulnerable Victims 180 2. Cause of Concern (Why is it a problem?): Human Rights, Rule of Law and Harmonization 182 3. Attribution of Causation and Responsibility (Who/ What is responsible?): The 18 drivers 183 9
4. Prescribed Action (What should be done?) by Member States 184 5. (Operational) Objectives 186 6. Target and Beneficiaries 188 7. Preliminary Conclusions 189 7.1 The Attribution of Causation in the Impact Assessment s 18 drivers 190 7.2 Root Causes 191 7.2.1 Poverty, Migration and Development 193 7.2.2 Gender Equality in Countries of Origin 197 7.2.3 Criminalize Demand 202 7.3 Victims Rights and Rising the Numbers of Reports, Investigations and Prosecutions 203 7.4 Particularly Vulnerable Victims 206 7.5 Why EU Internal and External Action? 208 8. Summary 210 V. The EU Directive 2004/81/EC on Short-Term Residence Permits 210 1. Subject-Matter (What is wrong?) and Affected Subjects (For whom?): Illegal Immigration 211 2. Cause of Concern (Why is it a problem?): Relative Silence 211 3. Attribution of Causation and Responsibilities (Who/ what is responsible for the problem?): Ineffective Prosecution 212 4. Prescribed Action and Actor(s) (What should be done? By whom?): Granting Residence Permits 214 5. Objective (What is the objective?): Combating Illegal Immigration 215 6. Target and Beneficiary 217 7. Preliminary Conclusions: Trafficking, Smuggling and Illegal Immigration 218 7.1 Trafficking in Human Beings, Human Smuggling and Illegal Immigration 219 7.2 Who to Blame? 223 8. Summary 223 VI. The EU Approach: Between Criminal Law, Human Rights and Border Control 224 1. Law Enforcement versus Human Rights 224 2. Human Rights against Illegal Immigration 227 3. The EU Approach and Multi-Disciplinary Perspectives 228 4. Dimensions of Gender and Gender Equality 230 5. Summary 233 10
E. Germany 235 I. Historical Constitution of German Trafficking Offences 235 II. Human Trafficking for the Purpose of Sexual Exploitation, 232 StGB 241 1. Cause of Concern (Why is it a problem?): Protected Legal Interests and Concurrence of Offences 243 1.1 Sexual Offences 246 1.2 Offences against Personal Freedom 248 1.3 Immigration Offences 248 1.4 Personal Freedom, Sexual Self-Determination, Public Order, (Internal) Security and Morality 252 2. Subject Matter (What is wrong?): Definitional Elements 255 2.1 Exploiting Another Person s Predicament or Helplessness in a Foreign Country 255 2.2 Inducing Persons into Prostitution or Exploitative Sexual Activity 257 2.2.1 Element of Exploitation 259 2.2.2 With or Without Consent 263 2.2.3 More Intense Forms of Prostitution 267 2.3 Inducing a Person under 21 Years of Age 268 2.4 Aggravated Trafficking, 232(3) StGB 269 2.5 Aggravated Trafficking, 232(4) StGB 271 2.6 Assisting in Human Trafficking, 233a StGB 272 2.7 Preliminary Conclusions: Prostitution as the Problem? 274 3. Affected Subjects (For whom?): Gender and Nationality 276 3.1 Crime Statistics 276 3.2 The Term Victim in the German Criminal Code: Gendered and Neutral Language 279 3.3 Human Trafficking vs Trafficking in Women 282 3.4 Where are the (Real) Victims? 285 3.5 Transnational Dimension 287 4. Attribution of Cause and Responsibility (Who/What is responsible?): Organized Crime and the Client 289 4.1 The Division of Labour in the Trafficking Chain 290 4.2 The Client 291 5. Prescribed Action and Actors (What should be done? By whom?): Punishment and Protection 293 5.1 Investigating and Punishing (Organised) Crime 293 5.1.1 Is Human Trafficking a Hidden Crime? 293 5.1.2 Methods and Means of Investigation and Punishment 296 11
5.2 Victim and Witness Protection 298 5.2.1 No Criminal Prosecution and Residency 299 5.2.2 Police Protection of Injured Persons and Witnesses 301 5.3 Procedural Rights and Protections 303 5.3.1 Legal Counsel Assisting Witnesses and Victims 303 5.3.2 Recorded Examinations and their Showing 304 5.3.3 Concealment and Non-Disclosure of the Victim s Identity 305 5.3.4 Proceedings In Camera and Other Measures to Limit the Right to be Present and to Inspect Files 306 5.4 Compensation 307 5.5 Further Rights Beyond Criminal Proceedings 309 6. Objective 310 7. Target and Beneficiaries 313 8. Preliminary Conclusions 313 III. The German Approach 315 1. Prostitution as the Problem or the Problem with Prostitution 316 1.1 Definitional and Regulatory Approaches to Prostitution 317 1.2 German Approach to Prostitution after the ProstG 318 2. Migration as the Problem or the Problem with Migration 323 3. The Silenced Problem of Gender and Gender Equality 324 4. The Term and Meaning of Human Trafficking in Comparative Perspective 327 F. Conclusions 332 I. The UN, EU and German Approach in Context 333 1. The Nested Problem of Prostitution 333 2. The Nested Problem of Migration 336 2.1 Transnational Element 336 2.2 Human Trafficking vs Smuggling in Persons 338 2.3 The Border Control Imperative 340 3. 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 377 12