| What is Trafficking in Persons? |
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Legal Definition of Trafficking in Persons
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The term ‘trafficking in persons’ is defined by Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (UN Trafficking Protocol): (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons 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 following table identifies the three elements that must all be present for a situation of trafficking in persons to exist.
Key elements of the international legal definition of trafficking in persons
| Action |
Consisting of recruitment, transportation, transfer, harbouring or receipt of persons. |
| Means |
Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another. |
| Purpose |
Exploitation (including, 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). |
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Definition of Trafficking in Children
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International law provides a slightly different definition for trafficking in children in that it is only necessary to show an ‘action’ such as recruitment, buying and selling, for the specific ‘purpose’ of exploitation. In other words, trafficking will exist where the child was subject to some act such as recruitment or transportation the purpose of which is the exploitation of that child. Because it is unnecessary to show that force, deception or any other means were used, the identification of child victims of trafficking and the identification of their traffickers is likely to be relatively easier.
Key elements of the international legal definition of trafficking in children
| Action |
Consisting of recruitment, transportation, transfer, harbouring or receipt of persons. |
| Purpose |
Exploitation (including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour.1 or services, slavery or practices similar to slavery, servitude or the removal of organs). |
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Key Aspects of the International Legal Definition
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Relevant aspects of the international legal definition include the following:
- Trafficking takes place for a wide range of purposes not limited, for example, to sexual exploitation.
- Women, men and children are trafficked.
- The elements of the crime of trafficking in children are different to the elements of the crime of trafficking in adults.
- An individual does not have to have been exploited for there to be trafficking in human beings. It is sufficient that they have been subject to one of the defining acts, by (in the case of adults) one of the defining means, for the purpose of exploitation.2
- The consent of the victim does not alter the offender’s criminal liability.
- The offence must have been committed intentionally for there to be criminal liability.
- The offence does not, at the domestic level, require a ‘transnational’ element or the involvement of an organized criminal group.3
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Distinguishing Between Trafficking and Other Crimes
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Trafficking in persons is often confused with other crimes and migrant-related phenomena such as illegal migration. While trafficking across national borders may involve a violation of immigration laws (often without the knowledge or consent of the individual being trafficked), this fact is not relevant to a determination of whether or not a crime of trafficking has taken place.
Trafficking in persons is also different to migrant smuggling. The Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention against Transnational Organized Crime (Migrant Smuggling Protocol) defines migrant smuggling as:
‘The 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 permanent resident.’4
Under this definition, migrant smuggling refers only to the illegal movement of persons across international borders. Unlike trafficking, migrant smuggling does not require an exploitative purpose or the elements of force, deception or fraud. It is important to note however, that in practice, the distinction between migrant smuggling and trafficking in persons is not always easy to establish and maintain.
Despite the differences in migrant smuggling and trafficking in persons cases outlined above, many trafficked persons, men as well as women, begin their journey as smuggled migrants – having contracted an individual or group to assist their illegal movement in return for financial benefit. In a classic migrant smuggling situation, the relationship between migrant and smuggler is a voluntary, short-term one – coming to an end upon the migrant’s arrival in the destination country. However, some smuggled migrants are compelled to continue this relationship in order to pay off large transportation costs. It is at this late stage that the end-purposes of trafficking (debt bondage, extortion, use of force, forced labour, forced criminality, forced prostitution) will become apparent.
The link between trafficking and migrant smuggling highlights one of the main obstacles to identification of trafficked persons. As explained above, trafficking involves the intention to exploit. Such intent will often not manifest itself until after the ‘movement’ phase is over. It may therefore be impossible to identify a trafficked person as such until the initial movement is completed, and the victim is trapped in the very exploitative situation, which ‘proves’ that he/she is something other than a smuggled migrant. |
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The Trafficking Phenomenon
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This section considers the phenomenon of trafficking in persons: how it happens, why and to whom. It also seeks to explain the nature of exploitation involved in trafficking as understanding of this aspect is often key to a successful prosecution.
Summary of Trafficking Patterns and Trends
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Trafficking fact patterns (i.e. what happens, how and to whom) vary significantly from place to place and even from time to time. While intelligence is still fairly poor, it is possible to identify the major characteristics of current trafficking patterns in all regions of the world including South East Asia.5
- Trafficking takes place for a variety of end purposes including domestic service, forced marriage and sweatshop labour as well as sexual exploitation.
- Trafficking occurs within as well as between countries. The essence of a trafficking in persons crime is not movement across an international border. That is smuggling. Rather the core activity in a trafficking in persons case is the exploitation of people. Movement is merely incidental to that ultimate goal and that movement may be domestic or international.
- Traffickers use a variety of recruitment methods. Outright abduction is only very occasionally reported and often difficult to objectively verify. Child trafficking generally involves payment to a parent or guardian in order to achieve cooperation and this is often accompanied by a measure of deception regarding the nature of the child’s future employment or position.
- Most traffickers use varying levels of fraud or deception, rather than outright force, to secure the initial cooperation of the trafficked person. A commonly reported situation involves a young person who is deceived about the cost (and repayment conditions) of the migration services being offered her, the kind of work she will be doing abroad and/or the conditions under which she is expected to work.
- By definition, a trafficked person ends up in a situation of exploitation from which it is difficult – or even impossible – to escape. Traffickers and their accomplices use a variety of methods to prevent victims from leaving their situation of exploitation including debt bondage, threats and use of force, intimidation, physical detention and withholding of personal documents.
- Trafficking is sustained and strengthened through public sector corruption, particularly of police and immigration officials who play a key role in facilitating illegal entry and providing protection to trafficking operations.
- Many but not all trafficked persons enter and/or remain in the destination country illegally. Illegal entry increases a trafficked person’s reliance on traffickers and serves as an effective deterrent to seeking outside help.
- Trafficking necessarily requires some level of organization and is therefore suited to the operations of criminal networks. These networks may be informal groups of individuals working together within limited communities, or syndicates operating on a more sophisticated scale, working internationally and controlling every phase of the trafficking process. The essential point is that trafficking in persons is a complex criminal activity that usually requires a group of criminal accomplices working together as a team to achieve the ultimate purpose of producing a continuing stream of income from the exploitation of human beings.
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The Scale of the Problem
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There have been many attempts to estimate the size of the trafficking problem and the amount of money involved. However, both are very difficult to determine. The clandestine nature of the crime, the confusion between human trafficking and migrant smuggling, the absence of an adequate law enforcement and judicial response to the phenomenon, the difficulty of identifying and locating victims, and other factors all result in an absence of reliable data on the extent of the criminal activity.
It is very likely that only a small percentage of trafficking cases ever come to the attention of authorities. Under-reporting, a common problem in relation to many crimes, appears to be particularly severe with regard to trafficking. Laws are relatively new, and experience suggests that many victims may be unaware of their status as victims of crime or be unwilling to report crimes against them to authorities they do not know and do not trust. Criminalisation of victims (as illegal migrants or illegal workers) is very common and often means that victims are arrested or deported before they have a chance to tell their stories.
Given low levels of reporting, it follows that a very smaller percentage of the total number of actual cases of trafficking in persons will ever end up being investigated, prosecuted and adjudicated. For example, it is known that some very serious cases have been dropped for lack of evidence or because victims were unwilling or unable to testify against their exploiters. The huge disparity between the likely extent of the criminal conduct and the limited law enforcement and criminal justice response to the phenomenon represents an enormous challenge to criminal justice officials worldwide. |
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Causes and Vulnerability Factors
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There is much debate about the “causes” of trafficking. However, trafficking is a complex issue that is unlikely to have one cause or set of causes that will apply in all situations. Some of the major factors that are thought to impact on trafficking – and on individual or group vulnerability to trafficking - are discussed briefly below.
Poverty and inequality: A common feature of almost all trafficking cases is the direction of movement: individuals are trafficked from a relatively poorer country or region to a relatively wealthier country or region. Thailand provides a useful example: Thai nationals are trafficked to Australia, Europe, Japan and North America. Internally, there is a history of Thais being trafficked from poorer rural areas to the major cities. Thailand is also a country of destination for individuals from its less developed neighbours including Lao PDR and Myanmar. While the situation for every case will be different, a lack of economic opportunities in the home community appears to be a major factor in encouraging individuals to travel away from family and other support structures in search of work. Their families may decide it is worth going into debt, so they can pay for agent’s fees and other costs associated with migration and recruitment. Once in debt, a long way from home, it can be very difficult for people to leave situations of exploitation and abuse. However, it would be a mistake to think that all victims of trafficking are poor. For example, some experts have noted that it is not the “poorest of the poor” that end up travelling long distances for work, as this generally involves capacity to borrow money, and a level of family assets against which debt can be secured.
Gender discrimination: Gender discrimination is a complex issue that has serious implications for both men and women, and boys and girls. Very often, gender discrimination is understood as “discrimination against women”. For example, in many countries, women and girls are regarded as secondary to men and boys and are discriminated against in relation to family status, education and employment opportunities, property rights and legal protection. Girls are often denied equal opportunity for education. Unskilled and under-educated, they may also be subject to abuse within their own family and community. Some women and girls may have little choice but to leave their homes in order to escape situations of violence and abuse.
While some forms of gender discrimination are very obvious, gender discrimination can also operate in very subtle ways, with particularly serious implications in the context of trafficking. It has been noted that in many countries around the world, there may be very few real employment options for women and girls who need to earn a living. For example, in some contexts, women and girls with limited education and no savings behind them may have very few options other than seeking employment as a domestic worker (which often involves going to live in someone else’s home, a long way from their own community) or in the sex industry (which may be relatively highly paid but also potentially dangerous and/or illegal). Both options involve low status work that is largely unregulated by the government, in locations that are hidden from everyday view. Women and girls in these situations may have few options for change, and relatively little control over their working environments. These are just some of the many structural factors that help to explain why so many trafficking cases seem to involve the abuse of women and girls in private homes and in the sex industry.
Gender discrimination is not just about “women”. Men and boys are also affected by gender stereotypes albeit in different ways. For example, in some contexts, men and boys may be unwilling to report experiences of abuse if this means they will be perceived as “weak” or having “failed” their duty to their families to migrate and earn enough money to make regular remittances. Criminal justice officials may also ignore or trivialise trafficking in men and boys. Men and boys are often expected to assume financial responsibility for their families, which means they will be prepared to do work that is dirty and dangerous, if it means they can feed their family, or to get a visa to live in another country where they think their family might have a better life. All of these gender-related factors have a significant impact on access to opportunity, the willingness of individuals to accept risk, their capacity to exercise meaningful choice in difficult circumstances and willingness to seek or accept help.
Child vulnerability: Around the world, many children help their families by working to earn additional income. When the child is able to realise her or his right to health, education and a family life, this does not need to be a problem. However, children can be particularly vulnerable to abuse and exploitation, particularly if they do not have appropriate care-givers, such as their parents or other relatives, to help ensure their best interests. Also, there are some forms of work that are particularly harmful to children’s development and welfare. This includes work that interrupts their education, that is harmful to their health, or that involves sexual or other forms of physical abuse and/or exploitation.
Cases of parents selling their children into trafficking situations have been reported in many parts of the world. More commonly, parents have been known to hand over their children to people whom they trust for a small sum of money. The traffickers often promise that the child will be well taken care of and given a good education, perhaps in exchange for some light domestic or farm work. It is thought that children living in situations of conflict, in orphanages or with distant relatives, without a strong network of social or family support, may be especially vulnerable to exploitation and abuse, including trafficking.
Violence, conflict: The existence of violence and / or sexual abuse within the family is frequently identified as a “push” factor within the supply chain, especially in relation to children and young adults. There is also some evidence that trafficking may increase in situations of internal unrest and conflict. Certainly, the risk of harm from conflict, breakdown in civil society and absence of the rule of law can all combine to make victims even more vulnerable to trafficking situations. Conflict can also lead to internal displacement and the additional vulnerabilities that come when people are not near their homes and families.
Lack of opportunity for safe and legal migration: Safe and legal migration to the preferred destination countries is becoming more and more restricted, particularly for the unskilled. This situation can lead individuals into the arms of unscrupulous ‘facilitators” who may be traffickers or smugglers.
Statelessness: Statelessness or lack of citizenship may prevent children and adults from accessing state services and benefits such as education, healthcare and employment services and hinder their freedom of movement and access to legitimate labour markets within and across borders. These are all factors which increase a person’s vulnerability to exploitation and trafficking. (Lack of access to a birth certificate or some form of legal identity may also prevent trafficked persons from receiving the protection and support they need and complicate repatriation. It also makes it more difficult to establish whether or not the victim is a child).
Lack of ‘safety nets’ and family crises: Many of the factors highlighted above are interlinked and are present in the case histories of the victims of trafficking. Factors such as poverty, lack of education, unemployment, family abuse and discrimination can go hand-in-hand to make the day-to-day life extremely difficult for many people. Situations of hardship can become compounded by family or personal crises, such as the death of a breadwinner, severe illness requiring expensive medical care or crop failure. These factors can combine to create an environment in which people may have very few legal or viable means by which they can escape from their circumstances and change their situation for the better. This can lead to situations where people have debts they cannot repay, medical bills they cannot afford and children they cannot feed. In these circumstances, people may be willing to tolerate or accept the possibility – or even the reality – of highly exploitative situations that would be intolerable to those in different circumstances.
Demand and supply:6 Trafficking feeds into a global market that seeks cheap, unregulated and exploitable labour and the goods and services that such labour can produce – labour that can be supplied most profitably through traffickers. Sex tourism, including child sex tourism, the recruitment of domestic labour from developing countries, internet pornography and organized marriages between women from developing countries and foreign nationals are examples of new forms of actual or potential exploitation made possible through trafficking. Demand, in this context, generally refers to two quite different things: employer demand for cheap and exploitable labour; and consumer demand for the goods or services produced or provided by trafficked persons. Demand may also be generated by exploiters and others involved in the trafficking process such as recruiters, brokers and transporters who rely on trafficking and victims of trafficking to generate income. Finally, demand cannot be considered separately from supply – not least because supply may well generate its own demand. For example, the availability of a cheap and exploitable domestic labour force can itself contribute to generating demand for exploitative domestic labour at a level that may not otherwise have existed. Similarly, it is possible that an increase in the supply of cheap, ‘controllable’ sex workers could lead to greater demand for the services of these workers.
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The Gender Dimensions of Trafficking
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Gender affects all aspects of the trafficking process, from the factors that contribute to trafficking (see further: “gender discrimination”, under Causes and vulnerability factors, above); to the nature of the laws and policies developed to deal with it.
Women, men, boys and girls can all be victims of trafficking crime. There is an overwhelming perception that only women and girls are trafficked. While it is increasingly recognised that men and boys are also victims of trafficking crime, there is a tendency to equate the terms “trafficking victim” or “trafficked person” with a woman or child (usually a girl). Until recently, many laws in South East Asia only criminalised trafficking in women and children. As awareness has increased, these laws and policies have been revised to criminalise trafficking in men and to protect male victims of trafficking. As a result, more men and boys are being identified and, importantly, assisted as victims of trafficking.
Trafficking in Persons is a highly gendered phenomenon. Women and girls are often trafficked in different ways to men and boys, and for different reasons. Furthermore, a person’s sex or physical characteristics can determine or contribute to that person’s experience of trafficking. For example,men and boys are predominantly amongst those identified as victims of trafficking in the agricultural and fishing (boats, platforms) sectors7 whereas women and girls are predominantly amongst those trafficked into domestic service, commercial sexual exploitation, forced surrogacy8 and forced marriage.9
The personal and social costs experienced by the trafficked person may also be particular to that person because of their sex. Sexual harassment and sexual violence are more commonly perpetrated against women and girls, the latter exposing them to health related risks such as sexually transmitted diseases. Stigmatisation, compulsory health checks and ‘moral rehabilitation’ are also more likely to be experienced by women and girls during return and reintegration. On the other hand, the assistance and avenues of redress provided for trafficked men (and boys to a lesser extent) are limited.
The commonly held notion that ‘men migrate, but women are trafficked’ has meant that national criminal justice agencies often appear to be slower to investigate and prosecute trafficking cases involving men. Perceptions about men’s and women’s ‘natures’ and the 'differences’ between them are often reflected in their treatment as victims of crime. Measures taken in the name of protecting victims and preventing trafficking, such as the detention of victims10 or restricting the movement of unaccompanied young women11, can also operate in a discriminatory manner. Criminal justice responses to trafficking in persons must respect the rights of all persons, and the gender implications of trafficking should be an integral aspect of the response. |
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A Brief Note on Terminology
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| This site refers to both ‘trafficked persons” and “victims of trafficking". In relation to the latter term, it is important to note that individuals who have been trafficked are likely to be both victims of crime and “victims of human rights violations". These categories are important because they will determine the nature and scope of rights and entitlements under both international and national law.12 |
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1. " “Forced labour” is not defined in the Protocol. There are, however, several international instruments in this regard, for example: the 1930 Convention concerning Forced or Compulsory Labour (Convention No. 105) of the International Labour Organization; and the 1957 Convention concerning the Abolition of Forced Labour (Convention No. 105) of the International Labour Organization. “Slavery” is not defined in the Protocol, but numerous international instruments, as well as the domestic laws of many countries, define or deal with slavery and similar practices (see, for example, article 4 of the 1948 Universal Declaration of Human Rights; the 1926 Slavery Convention, as amended by the 1953 Protocol (United Nations, Treaty Series, vol. 212, No. 2861); the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (United Nations, Treaty Series, vol. 266, No. 3822); the 1999 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Convention No. 182) of the International Labour Organization; article 11, paragraph 1, of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Assembly resolution 45/158, annex); and article 4 (Prohibition of slavery and forced labour) of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms) ", UNODC Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocol thereto, p. 268 (note.14), available at http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html
2.
This point is made in the UNODC Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocol thereto, p. 268 (para. 33) and the Commentary to the European Convention (para. 225), available respectively at http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html and http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Convntn/CETS197_en.asp#P643_55759
3. This point is made in the UNODC Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocol thereto, p. 275 (para. 45) as well as in the Interpretive Notes for the Official Records (Travaux Preparatoires) of the Negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (A/55/383/Add.1) at para. 59 (available at http://www.unodc.org/unodc/en/treaties/CTOC/background/General-Assembly-documents.html). Note that application of the Protocol at the international level would require a ‘transnational’ element or the involvement of an organised criminal group.
4. Article 3, Migrant Smuggling Protocol, available at http://www.unodc.org/unodc/en/human-trafficking/smuggling-of-migrants.html
5. The information presented in this section is drawn from: Anne Gallagher, International Law of Human Trafficking, Cambridge University Press, (forthcoming, 2010).
6. This section is drawn from A. Gallagher, Commentary to the United Nations Principles and Guidelines on Human Rights and Human Trafficking (OHCHR, forthcoming, 2009) (references omitted).
7. Trafficking of Cambodia men on fishing vessles is documented in UNIAP, Exploitation of Cambodian Men at Sea, April 2009, available at http://www.no-trafficking.org/siren_reports.html
8. For discussion on trafficking in unborn children see J H Pascoe, ‘International Conference on Child Labour and Child Exploitation: Trafficking in Unborn Children’ (2008) and '5th World Congress on Family Law and Children's Rights: How trafficking in expectant women affect the rights of the child' (2009).
9. These are the sectors that are also often not protected by labour laws nor covered under state-sanctioned migration policies.
10. For further discussion this, see the ARTIP Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, available here.
11. Commission for Human Rights, Report of the Special Rapporteur, Ms. Radhika Coomaraswamy on Violence against women, its causes and consequences, U.N. Doc. E/CN.4/2000/68 (2000), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/e29d45a105cd8143802568be0051fcfb?Opendocument
12.
See, for example, United Nations, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005, available at http://www2.ohchr.org/english/law/remedy.htm
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