“Human trafficking is the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them.
Human trafficking is a crime against humanity.” ~ The United Nations
On December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which declared freedom from slavery as an internationally recognized human right. Article 4 of the Universal Declaration of Human Rights states:
“No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.“
Legal Efforts to Curb Trafficking
Sex trafficking has concerned the international community for more than a century. In 1904, a treaty called the International Agreement for the Suppression of the White Slave Trade was ratified by twelve nations, including the United States. Responding to the widespread abduction of girls for the purposes of sexual exploitation in Europe and Asia, this agreement urged governments to prohibit “procuration of women and girls for immoral purposes abroad.”
After World War I, the League of Nations adopted a broad-reaching document against slavery that essentially affirmed the 1904 treaty but added children to the agenda. The League also replaced the term “white slave trade” with the term that enjoys currency today: “trafficking in women and children.”
Then, in 1949, the United Nations General Assembly set out to establish a legal framework to stop the traffic. Known formally as the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, it declared that the enslavement of women and children for the purposes of sexual exploitation was incompatible with fundamental human rights. It called on governments to adopt procedures for punishing any person who sexually exploits another individual or who runs a commercial enterprise that profits from such activity.
Unfortunately, the convention was ratified by fewer than half of the member states of the United Nations (72 out of a total of 185). Today, nearly half a century later, its translation into policy yields widely divergent legal strategies.
What is Human Trafficking?
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, was adopted by General Assembly in 2003. It is the first global legally binding instrument with an agreed definition on trafficking in persons. The intention behind this definition is to facilitate convergence in national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting trafficking in persons cases. An additional objective of the Protocol is to protect and assist the victims of trafficking in persons with full respect for their human rights.
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as:
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.
Elements Of Human Trafficking
On the basis of the definition given in the Trafficking in Persons Protocol, it is evident that trafficking in persons has three constituent elements;
- The Act (What is done): Recruitment, transportation, transfer, harbouring or receipt of persons
- The Means (How it is done): Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim
- The Purpose (Why it is done): For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.
To ascertain whether a particular circumstance constitutes trafficking in persons, consider the definition of trafficking in the Trafficking in Persons Protocol and the constituent elements of the offense, as defined by relevant domestic legislation.
Criminalization Of Human Trafficking
The definition contained in article 3 of the Trafficking in Persons Protocol is meant to provide consistency and consensus around the world on the phenomenon of trafficking in persons. Article 5 therefore requires that the conduct set out in article 3 be criminalized in domestic legislation. Domestic legislation does not need to follow the language of the Trafficking in Persons Protocol precisely, but should be adapted in accordance with domestic legal systems to give effect to the concepts contained in the Protocol.
In addition to the criminalization of trafficking, the Trafficking in Persons Protocol requires criminalization also of:
- Attempts to commit a trafficking offense
- Participation as an accomplice in such an offense
- Organizing or directing others to commit trafficking.
National legislation should adopt the broad definition of trafficking prescribed in the Protocol. The legislative definition should be dynamic and flexible so as to empower the legislative framework to respond effectively to trafficking which:
- Occurs both across borders and within a country (not just cross-border)
- Is for a range of exploitative purposes (not just sexual exploitation)
- Victimizes children, women and men (Not just women, or adults, but also men and children)
- Takes place with or without the involvement of organized crime groups.
For a checklist of Criminalization under the Protocol, click here.
To see how human trafficking differs from migrant smuggling, click here.
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TO REPORT AN INSTANCE OF HUMAN TRAFFICKING, DIAL 1-888-3737-888
OR CALL YOUR LOCAL POLICE DEPARTMENT/DISTRICT ATTORNEY’S OFFICE!