Innsbruck, 12 November 2015 Trafficking and Smuggling of Migrants under International Law Assessing the Impact of a Problematic Relationship Marco Pertile University of Trento
OUTLINE Importance of trafficking in persons The origin of the concept of trafficking An alluvial legal framework The crucial distinction between trafficking and smuggling and its impacts: - UN SC RES 2240 (2015) - Lack of protection in borderline cases
Trafficking in Persons: A Chameleonic Concept
The international legal framework It changes significantly in time: the regulation has developed in an alluvial way First reference to the concept of trafficking at the international level at the beginning of the 20th century (prodromic phase) There are several related legal concepts and several actors involved
Prodromic Phase: Legal Instruments White Slave Traffic Agreement (1904) (information gathering and repatriation) White Slave Traffic Convention (1910) (criminalization requirement) Convention for the Suppression of the Traffic in Women and Children (1921) (children of both sexes) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) (minimal protection to victims)
Main features of the prodromic phase Focus on women and children Trafficking or Traffic are not defined Abolitionist approach to prostitution Highly paternalistic: consent not relevant There has to be a transnational element
The Prodromic Phase have a watch kept, especially in railway stations, ports of embarkation, and en route, for persons in charge of women and girls destined for an immoral life
Now: Several Legal Instruments Human Rights instruments at the regional and global level, partially overlapping - ICCPR, 1966: (slavery; torture) - ICESCR, 1966: (adequate standard of living) - Child Rights Convention, 1989 (general prohibition) - CEDAW, 1979 (general prohibition) - European Convention on Human Rights (art. 4 as interpreted in Rantsev) - CoE Convention on Trafficking in Human Beings, 2005
Now: Several Actors UNODC UN Supervisory System for Human Rights Protection UN Special Rapporteur on Trafficking International Organizations (ILO, IOM, Council of Europe; European Union) States (and the United States)
An alluvial legal framework
Confusion? Patchy solutions? The International Organization for Migration adopted a definition of human trafficking as follows: an illegal crossing of an international border, voluntary movement, and financial gain for the trafficker, This is almost equal to the modern definition of migrant smuggling. (source: Sarah Pierce, 2014)
The Palermo Protocols They supplement the United Nations Convention on Trans- National Organized Crime 1) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (entry into force: 2003, 169) 2) Protocol against the Smuggling of Migrants by Land, Sea and Air (2004, 142) 3) Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (2005, 114)
The Palermo Protocol on Trafficking Main Features Rapid and extensive ratification (binding on 169 States) 3P approach: prevention; protection; prosecution They provide for a definition, a common language
The Protocol s main Success: A Definition
Full Definition (art. 3a) [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
The Definition of Trafficking Article 3 Action Means Purposes Article 3b - Consent is virtually irrelevant if the means are used
Action The recruitment, transportation, transfer, harbouring or reception of persons
Means The threat or use of force or various forms of non-violent coercion, such as fraud or deception
Purposes 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.
Protocol on Trafficking (content) Criminalise trafficking and impose penalties Accept and facilitate the return of trafficked nationals Ensure this return occurs with due regard for the health and safety of trafficked persons and for ongoing legal proceedings Exchange information aimed at apprehending traffickers Provide/strengthen training for security sector actors Strengthen border controls Implement carrier sanctions and other interdiction measures Improve document security
Protocol on Trafficking (protection) Protect the privacy of victims and provide them with appropriate information about legal proceedings Consider implementing measures to aid in physical and psychological recovery of victims Endeavour to provide for the physical safety of trafficking victims Make available under domestic law the possibility of accessing Compensation Consider granting permission to remain in the destination state in Endeavour to establish policies preventing revictimisation Endeavour to undertake additional measures to prevent trafficking, such as economic development, awareness raising. (non-binding)
Smuggling of Migrants (art. 3 UN Protocol) procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.
The Protocol on Smuggling (content) Criminalise the smuggling of migrants and related offences, including the production, provision and possession of counterfeit documents Ensure document security, including by cooperating to stop fraudulent use Provide training to security sector actors to prevent, combat, and eradicate smuggling of migrants Implement legal and administrative measures (such as sanctions) to stop the use by smugglers of commercial carriers.
Protocol on Smuggling (protection) Ensure that, when criminalising smuggling, situations that endanger life, involve exploitation or inhumane and degrading treatment should be considered as aggravating circumstances Not make smuggled people liable for criminal prosecution Take all appropriate measures to preserve the internationally recognised rights of smuggled persons, particularly the right to life and the right not be subjected to torture or other cruel, inhuman or degrading treatment or punishment Provide protection from violence Assist those who have been put in danger by being smuggled.
Trafficking & Smuggling Four main distinctions between trafficking and smuggling: Exploitation Consent Borders Victim requirement
Victims Migrant smuggling, depending on how it is executed, can be a victimless crime. In human trafficking there is always a victim. Thus confusing human trafficking with migrant smuggling could leave victims without necessary rehabilitation services and reparations. Fair or not, the majority of countries immigration laws treat undocumented immigrants very differently than human trafficking victims. Source: Sarah Pierce, The vital difference between human trafficking and migrant smuggling, November 2014 (https://www.opendemocracy.net/beyondslavery/sarah-pierce/vital-difference-between-human-trafficking-and-migrantsmuggling)
UN Security Council Res. 2240 (2015) The Security Council authorizes member States to intercept, inspect, and seize vessels on the High Seas. Operation Sophia had already started, two days earlier. The original plan was to destroy boats migrants travel on, intercept smugglers at sea, arrest them or even attack them on land in Libya. Trafficking as rethorical element to justify the use of force?
DESTRUCTION OF VESSELS? further action with regard to such vessels, including disposal, will be taken in accordance with applicable international law with due consideration of the interests of any third parties who have acted in good faith.
The Impact of the Distinction Incorrectly labelling smugglers as traffickers conveniently ignores reasons why asylum seekers and migrants chose to leave home such as conflict, widespread human rights abuses, famine and economic destitution. It allows governments of countries they are trying to reach to imply that law enforcement is more important than ensuring asylum seekers can get protection and exercise their right to seek asylum and that actions such as destroying boats is a humanitarian act ( ) Human Rights Watch, Smuggling and Trafficking Human Beings (2015)
Criticism of Resolution 2240 Francois Crepeau, UN Special Rapporteur on the Human Rights of Migrants: In the name of controlling the border, states have lost control of the border because they have no clue who is getting in because the smugglers are in control of the market The assumption is: the only way to get rid of smugglers is to offer mobility to refugees and migrants
Hard cases on the Distinction: the role of consent
Lila, ex. 1 a 19-year-old Romanian girl who was introduced by an acquaintance to a man who offered her a job as a housekeeper/salesperson in the UK When she arrived in the UK, the man sold her to a pimp and Lila was forced into prostitution. She was threatened that she would be sent home in pieces if she did not follow every order. After an attempted escape, her papers were confiscated and the beatings became more frequent and brutal. (Source: Buckland, p. 138)
Ana (ex 2) In 1999 Ana left her home in the coastal state of Bahia [Brazil] to travel to Switzerland at her aunt s invitation. Her aunt promised that she would be able to study, have a good job and also be able to send money to sustain her family living in the countryside. As soon as Ana arrived in Switzerland, she married a Swiss man, probably to arrange a permit to stay. However, her newlywed husband started almost immediately exploiting her with the help of her aunt. They kept all of Ana s earnings. (source: Buckland, pp. 147-148)
Recruiting in India A recruiting agency in India was looking for welders to work at a company in the United States for $10.00 an hour. The agency charged each prospective worker a non-refundable $2,500.00 application fee. Enroute to the United States the workers were given contracts to sign. The contracts obligated the workers to work for the next six months for less than $3.00 per hour. They were told to sign the contracts or they would be sent back home. The workers felt that they could not back out because they had invested all their savings, and were already on their way to the United States. Once they arrived, they were confined to the factory grounds and the owner of the company kept their passports. (Source: The Human Smuggling and Trafficking Center, Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking, 2006)