This article explores the conceptual relationship between trafficking in human beings, enslavement and crimes against humanity. The analysis of case law of the International Criminal Tribunal for the Former Yugoslavia and the European Court on Human Rights reveals that, while trafficking in human beings and enslavement are increasingly overlapping, they still do not coincide. Moreover, enslavement is only a crime against humanity if it is committed in a widespread or systematic manner by an organization which displays State-like features. In the opinion of the author, the qualification of human trafficking as “modern slavery” is therefore confusing. The fact that human trafficking covers a wide array of offences influences the choice of forum in respect of criminal law enforcement. While enslavement as a crime against humanity may belong to the jurisdictional realm of international criminal tribunals and the International Criminal Court (provided that domestic jurisdictions have proved to be “unwilling” or “unable”), other forms of human trafficking are, in the view of the author, best left to national courts.
1. Trafficking in human beings is a depressing phenomenon that affects people in all nations of the world. According to estimations of the International Labour Organization, 20.9 million people are victims of forced labour globally, which includes victims of human trafficking for labour and sexual exploitation, although the proportion of victims of forced labour as a result of trafficking is unknown.1
2. As trafficking reduces human beings to commodities, it thwarts Kant's famous postulate that humans should be treated as ends in themselves. Nowadays, trafficking in persons is often qualified as a “modern form of slavery” by international organizations, politicians and scholars.2 It is a powerful contention that conveys the message that we should not indulge in moral complacency, believing that slavery is a thing of the past, because it surreptitiously resurfaces in new guises. Others even claim that trafficking in human beings can be considered as a crime against humanity.3
3. Trafficking in human beings, on the one hand, and slavery and enslavement as a crime against humanity, on the other, certainly do overlap, but those who equate these concepts tend to ignore that the latter imply institutionalized repression with governmental approval or even involvement. Trafficking in human beings also—and even predominantly—connotes private enterprise. Human trafficking is a multi-faceted phenomenon that is notoriously difficult to categorize. That problem is aggravated by the fact that the scope and the perpetrators of the crime are often hard to identify. A brief reflection on the complex situation in Southeast Asia may clarify that point. In commenting on the changing nature of human trafficking, Indonesia's representative of the International Organization of Migration, Denis Nihill, observed that the shift from sex industry to labour migration made human trafficking far more difficult to detect. Moreover, he pointed to the increasing trend of internally trafficked people, which prevents the crime from being discovered by public officials.4 Such developments not only hamper effective criminal law enforcement, they also obfuscate our perception of the true nature and ramifications of the crime.
4. This article has a twofold objective. Firstly, it seeks to explore the conceptual relationship between trafficking in human beings, slavery and enslavement as a crime against humanity. Secondly, it endeavours to find out what level of criminal law enforcement—national, regional or supra-national—would be most appropriate to counter trafficking in human beings. In my opinion, the two topics are closely connected. The nature of the crime influences the choice of criminal law enforcement. Scholars have emphasized the seriousness of trafficking, its transnational character and the prevalence of official complicity as arguments to sustain their plea for universal jurisdiction or prosecution and trial by international criminal tribunals or the International Criminal Court (ICC).5
5. The first part on the substantive elements of trafficking in human beings (compared with enslavement) starts with an analysis of the primary sources of international conventions (Section II.A), which is followed by case law of the International criminal Tribunal for the Former Yugoslavia (ICTY) (Section II.B) and judgments of the European Court of Human Rights (ECtHR) (Section II.C).
6. The second part proceeds with an investigation into national criminal law enforcement in respect of trafficking in human beings. The underlying issue is whether moving the prosecution and trial of trafficking in human beings to the supra-national level is really necessary. Obstacles in the realm of national prosecution of trafficking in human beings might pertain to defective jurisdiction, problems of international co-operation in criminal matters and a lack of consistent interpretation of the elements of crime, shared by most or all States. Although this is not an empirical study, and I do not pretend to draw a comprehensive picture of the state of the art, I will briefly touch upon these aspects in separate sub-sections (Sections III.A—III.E). Section IV discusses the feasibility and appropriateness of involvement of regional or supra-national courts in the fight against human trafficking. And the final Section V summarizes the main findings while integrating the substantive and procedural parts of the essay.
Slavery and trafficking in human beings in legal instruments and case law
7. The most straightforward way to detect similarities and differences between the concepts of slavery and trafficking in human beings is to compare the definitions included in international conventions which have been concluded to suppress those practices. Case law of the ICTY and judgments of the ECtHR have refined our understanding of the legal nature of these concepts and will be analysed subsequently.
Slavery and trafficking in human beings in international conventions
8. During the 19th century, the gradual abolition of slavery and the slave trade was accomplished by the conclusion of bi-lateral treaties, mainly propelled by the United Kingdom and the United States, in which parties committed themselves to prosecute and inflict severe punishment on slave traders.6 The first multi-lateral treaty was adopted by the League of Nations in 1926.7 Article 1(1) of this Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” According to article 1(2), the slave trade includes “all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.” In other words, the article distinguishes between a static situation in which a person is reduced to a mere commodity and a dynamic process, enumerating all those commercial acts that are inherent in legal ownership. Article 6 of the Convention enjoins “those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention to undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions.”
9. The 1926 Slavery Convention was still very much tailored to the 19th century's “chattel slavery”, and the 1956 Supplementary Convention sought to update the law by extending the applicability of the Convention over slavery-like institutions and practices, including debt bondage and serfdom.8 The Convention obliges States Parties to criminalize both the act of enslaving another person (art. 6) and “slave trade” (art. 3)—including attempts of, complicity in and conspiracy to accomplish those acts—considering slave trade as a more serious crime than the act of enslavement itself.
10. New international initiatives already indicated that the existing legal framework did not suffice to counter all forms of (commercial) abuse of human beings. The major gap to be filled was that the Slavery Conventions referred to efforts to obtain permanent ownership over persons and did not cover more volatile endeavours to acquire benefits from the temporary commercial exploitation of humans.9 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“UN Protocol”), supplementing the United Nations Convention against Transnational Organized Crime of 2000 (UNCTOC) was established to fill the gaps.10 The Protocol offers a comprehensive definition of trafficking in human beings that has served as an authoritative model for all other subsequent treaties. The definition of article 3 contains three elements:
an action, mirroring the dynamic component of the Slavery Convention: “the recruitment, transportation, transfer, harbouring or receipt of persons”;
certain means that have been employed: “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”;
and a purpose—exploitation—which “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”.
11. Article 3(b) adds that the consent of a victim shall be irrelevant where any of the means, just mentioned, have been used, and sub-section (c) stipulates that any recruitment, transportation etc. of a child—id est a person under eighteen years of age—for the purpose of exploitation shall be considered “trafficking in persons”, even if this does not involve the use of any of those means. As the Protocol is supplementary to the UNCTOC, its scope of application is restricted to offences of a transnational character that involve an organized criminal group (UN Protocol, art. 4). However, that limitation only concerns the obligation of States Parties to co-operate; it is not part and parcel of the definition of the conduct which States Parties are expected to incorporate as a criminal offence in their legal systems.11
12. The Council of Europe Convention on Action against Trafficking in Human Beings of 2005 (hereinafter: CoE-Convention) has explicitly deleted the transnational and organized crime elements, in order to broaden the scope of application, but has left the definition of the UN Protocol unaltered.12 This Convention has considerably reinforced the protection of victims, provides for more specific punishments and draws attention to prevention by promoting measures to discourage demand—whereas the UN Protocol puts more emphasis on criminal repression of supply of human beings for the purpose of exploitation.13 EU instruments have been enacted to serve similar goals, but have, like the CoE-Convention, faithfully copied the definition of the UN Protocol.14
13. It would seem from the previous exposition of the relevant treaty provisions that the main difference between enslavement and trafficking in human beings is to be found in the purpose. Slavery (or practices similar to slavery) only constitutes one of the forms of exploitation, being the purpose of trafficking. This might suggest that “trafficking in human beings” is the wider legal concept, encompassing slavery as a subset.15 On the other hand, one might wonder whether other forms of exploitation—like forced labour and sexual exploitation—are nowadays perhaps considered as “slavery”. In the next sections, I will inquire whether the case law of the ICTY and the judgments of the ECtHR clarify this quandary.
Enslavement as a crime against humanity: The Kunarac case
14. The Statute of the International Criminal Tribunal for the Former Yugoslavia stipulates that the Tribunal has jurisdiction over enslavement as a crime against humanity.16 In Kunarac, the Tribunal had the opportunity to shed some light on the contours of this crime.17 Kunarac and Kovač were charged with enslavement and rape of Muslim women whom they had detained during six months and abused for their own sexual gratification. After having scrutinized the judgments of the Nuremberg and Tokyo Military Tribunals, relevant provisions of the Geneva Conventions, the findings of the UN International Law Commission and human rights instruments, the Trial Chamber reiterated the classic definition of the Slavery Convention—exercise of any or all of the powers attaching to the right of ownership over a person—but observed that “enslavement as a crime against humanity” may be “broader than the traditional and sometimes apparently distinct definitions of slavery, the slave trade and servitude or forced or compulsory labour found in other areas of international law”.18 In search of the proper limits of the crime, the Trial Chamber identified a number of factors. Physical and psychological control—“control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape”—was an important indication of enslavement.19 Secondly, the Trial Chamber stressed the relevance of the use of force, threat of force or other forms of coercion, rendering the determination of (lack of) consent or free will of the victim irrelevant.20 Other important factors include duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.21 As examples of exploitation, the Trial Chamber mentioned “the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship, sex and prostitution.” Human trafficking was presented as a separate indication of enslavement.
15. On appeal, the appellants claimed that the Trial Chamber adopted too broad a definition of the crime of enslavement, emphasizing in particular the requirements of lack of consent and duration as constituent elements of the crime22 The Appeals Chamber did not agree and corroborated the Trial Chamber's findings. It held that lack of consent does not have to be proved by the Prosecutor as an element of the crime, adding that the circumstances in the particular case were sufficient to presume the absence of consent.23 In respect of the time period, the Appeals Chamber conceded that duration was one factor—but not an indispensable element—of the crime, explaining that the quality of the relationship between the accused and the victim was decisive.24 On a more general note, the Appeals Chamber sought to distinguish the “various contemporary forms of slavery” from classic “chattel slavery”:
In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with “chattel slavery”, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of “chattel slavery” but the difference is one of degree.25
16. The “factor-approach”, as presented by the Trial Chamber and approved by the Appeals Chamber, while having the merit of flexibility, is problematic from the perspective of legality, because one does not know how these factors are weighed and which of them will be decisive in a particular situation. It will obviously be conducive to the well-known “case-by-case” assessment. The broadening of the concept of enslavement has undeniably blurred the conceptual borders between enslavement and trafficking in human beings. After all, the Appeal Chamber's considerations on irrelevance of consent, exercise of control, the use or threat of force and the purpose of exploitation, are all reminiscent of the definition of trafficking in human beings as developed in the UN Protocol. As argued above, the distinguishing feature between the two crimes is the intensity and degree of (intended) exploitation, but the Kunarac decision has at least partially subverted that factor, by holding that “duration” or “permanence” is not a requirement of the crime. The gist of enslavement—the exercise of any or all of the powers attaching to the right of ownership—though rather abstract, may give some guidance and may guard against dilution of the concept. It is to be observed that the definition of “[e]nslavement” as a crime against humanity in the Rome Statute explicitly connects trafficking in human beings to the exercise of such powers of—presumed—ownership.26
17. But even if “trafficking in human beings” can, at least in the opinion of the ICTY, largely be assimilated to enslavement, that does by no means imply that it qualifies as a crime against humanity, eligible for prosecution and trial by the International Criminal Court and international criminal tribunals. In that case it has to meet the well-known “contextual elements”: it must be “widespread or systematic and directed against a civilian population, with knowledge of the attack”. Moreover, for the International Criminal Court to have jurisdiction, the attack must be “pursuant to or in furtherance of a State or organizational policy”.27 The Elements of Crimes of the ICC clarify that the “policy to commit such an attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.28
18. Could a—private—criminal organization that engages in the business of trafficking in human beings commit a crime against humanity? That depends on the definition and interpretation of the concepts “policy” and “organization”. In the Bemba confirmation decision, the Pre-Trial Chamber of the ICC held that:
[T]he requirement of a “State or organizational policy” implies that the attack follows a regular pattern. Such a policy may be made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be formalised. Indeed, an attack which is planned, directed or organized—as opposed to spontaneous or isolated acts of violence—will satisfy this criterion.29
19. The issue of the specific features of organizations that would potentially be covered by Article 7 of the Rome Statute kept the Pre-Trial Chamber in the Kenya decision divided. The bone of contention was whether such organizations should display State-like qualities. The Majority of the Pre-Trial Chamber confirmed the Bemba dictum that the litmus test for an “organization” in the sense of Article 7 Rome Statute is whether the group “has the capability to perform acts which infringe on basic human values.”30 It specified this finding by identifying a non-exhaustive list of factors:
whether the group is under a responsible command, or has an established hierarchy;
whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;
whether the group exercises control over part of the territory of a State;
whether the group has criminal activities against the civilian population as a primary purpose;
whether the group articulates, explicitly or implicitly, an intention to attack a civilian population;
whether the group is part of a larger group which fulfils some or all of the abovementioned criteria.31
20. The majority of the Pre-Trial Chamber did not exclude the possibility that non-State, “private” groups can engage in crimes against humanity. It found support in the opinions of the International Law Commission which has determined that “the article does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article [on crimes against humanity]; in that case, their acts would come under the Draft Code.”32
21. For Judge Hans-Peter Kaul, this approach was too liberal. He applied a more rigorous standard and argued that the organization should have some of the characteristics of a State.33 The legal refinements of the different opinions are beyond the scope of this essay.34 Suffice it to observe that the requirements for organizations that might qualify as falling under the scope of Article 7 of the Rome Statute are quite demanding. Even if we apply the more flexible standards of the Majority, the vast majority of criminal organizations that engage in human trafficking would by no means meet the threshold. They would simply lack the resources, power and institutional features to carry out large scale attacks on the civilian population. That becomes immediately transparent if we compare the requirements of “organization” in the Kenya decision with the definition of “organization” in Article 2 of the UNCTOC:
“Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences, established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.35
22. This definition does not mention some of the factors that have been identified by the majority in the Kenya decision, like “responsible command” or control over territory. One might argue that the capacity to commit serious crimes against civilians would suffice to qualify as an organization in the sense of Article 7 of the Rome Statute, but that would obliterate each meaningful distinction between powerful State-like groups and motor gangs or other criminal organizations.36 To put it differently: Article 2 of the UNCTOC encompasses small entities who incidentally commit crimes for profit and who would never be capable of engaging in mass atrocities.
23. In view of these observations, the opinion of Obokata that “it may be reasonably argued that trafficking in human beings can be elevated to a crime against humanity” is untenable, at least insofar he suggests that all trafficking in human beings amounts to crimes against humanity.37
Enslavement and trafficking in human beings in the case law of the European Court of Human Rights
24. Article 4 of the European Convention on Human Rights (ECHR) qualifies the protection against slavery or servitude—together with forced or compulsory labour—as an absolute right that allows no derogation. The European Court has had the opportunity to elaborate on the concept of slavery and its connection to trafficking in human beings in two cases.
25. In the case of Siliadin v. France, the applicant, who was of Togolese origin, had initially come to France in order to visit school and find subsequent employment. It had been agreed that she would work until her air ticket had been reimbursed, but in reality she was lent to a couple, Mr. and Mrs. B, who employed her as a general housemaid. Miss Siliadin had toiled during several years, for seven days a week and fifteen hours a day, virtually without remuneration and without a day off.38 Mr. and Mrs. B had faced criminal proceedings and had actually been convicted for having obtained the performance of services from a vulnerable individual without appropriate payment—a criminal offence under Article 225–13 of the French Criminal Code. However, they had been acquitted of the charge of exposing an individual to working or living conditions that are incompatible with human dignity, an offence under Article 225–14 of the Criminal Code.
26. The applicant had complained that French criminal law did not contain specific criminal provisions on slavery, servitude or forced or compulsory labour, consequently flouting its positive obligations under the Convention to protect its citizens against such abhorrent practices. Instead, the legislator had left the courts with the particularly vague concept of “infringement of human dignity” subject to random interpretation.39 The Court confirmed in general terms that the positive obligations under Article 4 entailed the penalization and effective prosecution of any act that purported to maintain persons in such situations. In assessing whether the position of the applicant was covered by the concepts featuring in Article 4, the Court distinguished between “slavery” and “servitude”, denying that the applicant was exposed to the former situation. While the Court acknowledged that the applicant had clearly been deprived of her personal autonomy, “she had not been held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, reducing her to the status of an ‘object’.”40 Nevertheless, the Court adopted the Commission's findings in Van Droogenbroeck v. Belgium that servitude entailed “particularly serious forms of denial of freedom, including the obligation for the ‘serf’ to live on another person's property and the impossibility to alter his condition” and therefore had to be linked with the concept of slavery.41 The Court concluded that the applicant had been held in servitude, and agreed that the French legislation and its application by the courts, exhibiting several flaws, had been inadequate to protect her. New legislation had introduced trafficking in human beings as a separate criminal offence, but had not been applicable to the applicant's situation. Consequently, France had violated its positive obligations under Article 4 of the Convention.42
27. Despite the favourable outcome for the applicant, the decision of the Court has been criticized for suggesting a rigid and narrow interpretation of the concept of slavery.43 Indeed, the definition as contemplated by the Court is strongly reminiscent of the classic understanding of the concept in the 1926 Slavery Convention, which has been significantly amended (and broadened), at least in the case law of the ICTY. One of the reasons for these diverging interpretations in international criminal law and human rights law might be that Article 4 of the ECHR enumerates several concepts, suggesting some hierarchy of seriousness between them, and that the availability of adjacent and corresponding notions invites the Court to apply a rigid interpretation of the most “serious”, to wit slavery.44
28. In Siliadin, the Court did not address the question whether trafficking in human beings would equal “slavery” or “servitude”, probably because French legislation at the time did not even contain criminal provisions on trafficking in human beings that could be tested on their conformity with the obligations emanating from Article 4. In the later and only other case on trafficking—Rantsev v. Cyprus and Russia—the Court could not evade the issue, because the applicant explicitly raised the relationship between the concepts.45 The case concerned the death under obscure circumstances of a Russian girl who had come to Cyprus in order to find employment as an “artiste” in a cabaret, a term that has become synonymous in Cyprus to “prostitute”.46 Having earlier expressed that she was tired and wished to return to Russia, Ms. Rantseva was found dead on the street below a balcony on the upper floor of an apartment where she had been staying. The police had discovered a bedspread looped through the railing of the smaller balcony and had reasoned that she had made a lethal fall, in an effort to escape her captivity.47 Both Cyprus and Russia had conducted (criminal) investigations in respect of the tragic incident, but they concluded that the evidence did not reveal criminal liability of a third person and that her death was the result of an accident.48
29. The applicant, the father of the deceased girl, openly suggested that his daughter had been a victim of trafficking, accused both States of failing to protect her from trafficking and sexual exploitation, and deplored the inadequate investigations into the dark circumstances which were conducive of her death. He pointed out that neither Cyprus nor Russia had specific criminal provisions addressing trafficking in human beings, implying that a lack of legal framework that would sustain the necessary protection and investigations produced a violation of Article 4 of the Convention.49
30. Interestingly, Cyprus and Russia took a slightly different approach to the issue at hand. Cyprus admitted that it had violated its positive obligation under Article 4 in “failing to take any measures to ascertain whether Ms Rantseva had been a victim of trafficking in human beings or had been subjected to sexual or any other kind of exploitation.”50 Apparently, Cyprus accepted that trafficking in human beings was within the scope of Article 4 of the Convention. While Russia did not explicitly deny this, it bluntly held that Ms. Rantseva's treatment was not within the purview of that provision, as she had voluntarily entered the country and had obtained a work permit, while there was insufficient evidence to support a finding that she was held in servitude and forced to work.51 This position is somewhat ambiguous, as it can be interpreted in two ways. For one thing, it might imply that, in the Russian view, trafficking in human beings in general does not meet the threshold of seriousness, inherent in the concepts of Article 4. However, a more plausible reading is that the situation to which Ms. Rantseva was exposed could not be qualified as trafficking in human beings.
31. The Court addressed head-on the question whether (the prohibition of) trafficking in human beings was covered by Article 4 of the Convention, but circumvented the thorny relationship between trafficking and slavery. First, it reiterated the features of trafficking that have been identified in previous case law as well:
The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions. It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the worldwide slave trade. The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place “under a regime of modern slavery”.52
32. The Court summarized the mainstream opinion that tends to depict trafficking in human beings as a form of (modern) slavery, but did not necessarily agree with that point of view. The tension was therefore mounting: would the Court adopt a similar position? The next paragraph provided the answer:
There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the convention in the light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the UN Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention.53
In other words, assuming that the treatment of Ms. Rantseva can be qualified as trafficking in human beings, the Court leaves open whether this particular instance of trafficking can be categorized as “slavery”, “servitude” or “forced and compulsory labour”. Anne Gallagher, while calling the decision “significant”, has also expressed some disappointment, as the Court fails to explain why trafficking falls within the scope of Article 4.54
33. The expansion of the notions of “slavery” and “enslavement”, propelled by the ICTY in the Kunarac case, has obscured the limits of these concepts. The proper relationship between slavery and trafficking in human beings in particular is still left in abeyance. On the face of it, the European Court of Human Rights in Rantseva appears to retract from its earlier restrictive interpretation, as expounded in Siliadin, by moving beyond the parameters of chattel slavery. However, we cannot even be certain about that. The incorporation of trafficking in human beings within the scope of Article 4 is not decisive, because that provision encompasses several concepts, next to slavery, and the ECtHR refrains from indicating under which tag trafficking can be brought.
34. The developments in case law of the ICTY and the ECtHR do not prove that trafficking in human beings can simply be equated with slavery. This position seems to be corroborated by the findings of a national—Australian—court in the case of R v. Tang.55 The High Court in this case did not explicitly address the relationship between trafficking in human beings and slavery, but moved to identify the confines of the latter concept.56 The inquiry into the content of the concept of “slavery” in the 1926 Slavery Convention and the corresponding provision in national law—which only deviated from the international model in minor respects—centred around the question whether slavery could be understood both de jure and de facto. Obviously, the background of the issue was that “ownership over a person” is not accepted in law. Confirming that the international legal definition included de facto slavery, the High Court proceeded by identifying the core of the concept, cautiously manoeuvring between the restrictive “chattel slavery” approach and the rather broad and loose interpretation in Kunarac. On the one hand, Gleeson, speaking for the majority, held that chattel slavery “falls within the definition, but it would be inconsistent to read the definition as limited to that form of slavery”.57
35. On the other hand, however, the High Court defined the gist of “slavery” as a complete disposition and control over another person for commercial purposes, in an obvious intent to distinguish it from less complete exercise of power. Instructing the jury how to make a distinction between slavery and harsh and exploitative conditions of labour, Gleeson held:
The answer to that, in a given case, may be found in the nature and extent of the powers exercised over a complainant. In particular, a capacity to deal with a complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services.58
36. The High Court even explicitly warned against dilution of the concept of slavery:
It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery. An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee's freedom of movement. Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to the right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.59
37. This is a wise admonition not to indulge in “semantic inflation”.60 After all, the dilution of crimes against humanity trivializes the category which historically originated in the unimaginable atrocities of the Holocaust.
38. The qualification of trafficking in human beings as “modern slavery” is ambiguous. On the one hand, by using the adjective “modern”, it acknowledges that it is an anachronism to compare a contemporary phenomenon with a dismal institute of the past. On the other hand, it invites us to attach a similar moral opprobrium and legal consequences to trafficking. Those who are in favour of this equation find support in the judgment of the ICTY in the Kunarac case which reveals an expanded understanding of slavery. But they forget or ignore that trafficking in human beings is a very broad concept itself. It covers widely different actions and situations, ranging from the lover boy who exploits the physical attractions of his “girlfriend” to huge organizations that reap millions of dollars from their ignoble trade. It would be advisable to reserve the pejorative term “enslavement” for the most serious of such crimes, both in scope and in implications for the victims.
39. Due to the expanded notion of slavery in the Kunarac case, it is not easy to draw the line between slavery and human trafficking. One of the experts in the field, Anne Gallagher, is rather cautious: “… despite indications that legal conceptions of slavery have expanded to embrace practices that go beyond chattel slavery, it is difficult to sustain an absolute claim that trafficking, in all its modern manifestations, is included in the customary and jus cogens norm prohibiting slavery and slave trade.”61 Gallagher seems to confirm that not each and every form of human trafficking would correspond to enslavement. The definition of enslavement as a crime against humanity in the Rome Statute gives a guideline for the distinction between the two concepts. Trafficking in human beings only amounts to slavery if the perpetrator arrogates control over another person, as if he owns that person as a “thing” or commodity. Such powers appear from strict control over movement and complete financial subservience. More ephemeral forms of control, while undoubtedly constituting serious crimes, would not qualify as slavery. Traffickers in human beings who merely intend to incidentally exploit the labour or attractions of their victims, leaving them some physical freedom of movement and financial remuneration, do not commit the crime of “enslavement”. It should be emphasized in this respect that the definition of enslavement in the Rome Statute concerns the physical act itself; only if enslavement is combined with the contextual elements (“widespread or systematic attack against civilian population”) will it qualify as a crime against humanity.62
40. One may wonder whether enslavement always constitutes trafficking in human beings, which would imply that trafficking is the wider concept encompassing enslavement. Conceptually, that need not be the case. Enslavement may be undertaken for other purposes than exploitation and “slavery” may be accomplished by other means than the ones enumerated in the definition in the UN-Protocol.
41. For the purpose of this article, the conclusion is that trafficking in human beings and enslavement are not to be conflated because they do not fully coincide. This raises questions as to the most appropriate method and level of criminal law enforcement, a topic to which I will turn in the next section.
National prosecutions and trials of trafficking in human beings: an impression of the state of the art
42. As we have seen in the previous chapter, enslavement as a crime against humanity can—and in practice will—be prosecuted and tried before international courts or tribunals, while trafficking in human beings falls within the remit of national courts. This division of labour is not self-evident. Trafficking in human beings belongs to the realm of “transnational crimes” which are somewhere in between ordinary crimes and international crimes stricto sensu. There may be good principled and practical reasons to move trafficking in human beings to the category of international crimes under the jurisdiction of the International Criminal Court or other international tribunals. Both dimensions are neatly captured by Cryer et al.:
Particular transnational crimes may in the future come to be dealt with as international crimes within the jurisdiction of an international jurisdiction, if States believe that the values they conflict with are sufficiently important to the international community and that international prosecution is an effective way of dealing with them.63
43. The assumption that international courts will dispense justice of better quality or that their involvement is needed in view of the seriousness and effects of the crimes suggests that domestic jurisdictions are doing a poor job or are less effective in these respects. And, indeed, it has been argued that trafficking in human beings exceeds the powers and resources of national jurisdictions.64 The combined effects of limited jurisdiction, inadequate implementation of substantive legal provisions and deficient co-operation in criminal matters impede effective prosecution and trial of traffickers in human beings. Moreover, the complicity of public officials tends to aggravate the situation.65 This breeds impunity, the ending of which is precisely one of the motives underlying the establishment of the International Criminal Court. Therefore, the protagonists of this view favour the prosecution and trial of trafficking in human beings by international or regional criminal courts, as an alternative to, or at least complementary to, national jurisdictions.66
44. In this section, I intend to explore this argument further by investigating whether the elevation of trafficking in human beings to another—international or regional—level of jurisdiction is really necessary, apart from its obvious norm-expressive or symbolic significance. To that purpose, I will address the elements that allegedly constitute obstacles for law enforcement by national jurisdictions: lack of jurisdiction, disparities in substantive legal provisions and deficient co-operation in criminal matters. A brief introductory section on the question of how these elements are inter-related will be followed by distinct sections on these respective elements in which each time a survey of the normative standards, prescribed in conventions, will precede short impressions of legal practice, on the basis of national case law. My purpose is to inquire whether the proposition that national law enforcement is ill-equipped to deal with trafficking in human beings is fully corroborated by the facts.
Obstacles to national law enforcement of trafficking in human beings
45. The national criminal law enforcement in respect of trafficking in human beings, being of a volatile nature, is often a complicated and protracted affair. Ideally, criminal proceedings against all the suspects are to be concentrated within one jurisdiction. In that case, the criminal process enables a gradual reconstruction of the course of events by the building up of evidence that witnesses may provide, displaying a comprehensive picture of the historical truth and the role and functions of all those involved. Moreover, such “mammoth” proceedings arguably offer best chances for participation of and redress for victims. However, efforts to engage in the prosecution of all culprits involved in trafficking are often doomed to fail, due to the fact that the separate stages of trafficking are usually scattered over different States. The State where the exploitation of trafficked women in a brothel actually takes place may lack jurisdiction over foreigners who have recruited the women in another State. And that other State may be unable to pursue criminal proceedings against recruiters, because it has not, or has only partially, implemented the substantive legal provisions that have been determined in international conventions. Deficiencies in the implementation of substantive legal provisions will often impede co-operation in criminal matters, in view of the double criminality rule, which prescribes that the conduct for which co-operation is sought constitutes a criminal offense both in the requesting and in the requested State. In other words: even if a State adopts broad interpretations of (territorial) jurisdiction and is prepared to start criminal proceedings against a host of perpetrators residing in different countries, it may not be able to obtain evidence or physical custody over a suspect from other countries. Moreover, an acquittal in one State, due to lack of evidence or imperfections in the substantive criminal law, will generally preclude criminal proceedings in another State, in view of the double-jeopardy rule or “non bis in idem” principle.
46. This brief exposé already demonstrates that the obstacles are strongly intertwined and tend to reinforce each other. Extradition serves to reconcile jurisdictional competence and physical power over the fugitive and international co-operation in criminal matters is usually a prerequisite for a successful completion of criminal proceedings with international ramifications. In its turn, the availability of adequate provisions of substantive law is a precondition for both the exercise of jurisdiction and the rendering of (mutual) assistance in criminal matters. International conventions on the repression of transnational criminal law, including those on trafficking in human beings, have therefore always focused on the establishment of adequate bases for jurisdiction, harmonization of substantive provisions and encouragement of international co-operation. Whether these efforts have yielded the desired results is the topic of the next sections.
Jurisdiction in respect of trafficking in human beings
47. Provisions on criminal jurisdiction in respect of trafficking in human beings in the several conventions do not differ a lot inter se, although each of them displays some particularities. All relevant conventions stipulate that State Parties shall ensure that they are able to exercise jurisdiction in respect of crimes that are committed on their territory, both the UNCTOC and the CoE Convention extending jurisdiction over crimes that are committed on board a vessel or an aircraft flying the flag of that State Party (the “flag principle”).67 All conventions incorporate the active nationality principle, attaching to the nationality of the perpetrator, as well, whereas the UNCTOC and the CoE Convention equalize Stateless persons, having their habitual residence in the territory of a State, to “nationals”.68 All conventions provide for the (possible) establishment of jurisdiction on the basis of passive personality (attaching to the nationality of the victim).69 Finally, the UNCTOC and the CoE Convention contain an “aut dedere, aut judicare” provision, enjoining each State Party to establish jurisdiction for situations when the alleged perpetrator is on its territory and it does not extradite him—remarkably, however, only in case the requested person is a national.70 Only the UNCTOC explicitly mentions the possibility of a wider application of aut dedere, aut judicare, not restricted to nationals.71 One may be inclined to question whether the restricted aut dedere, aut judicare is not largely redundant, in view of the rather wide acceptance of the nationality principle. The UNCTOC is the only instrument that contemplates extension of (territorial) jurisdiction over conspiracies or criminal organizations that act abroad, but envisage a crime on the territory of the State Party in question.72
48. The last mentioned provision of the UNCTOC suggests a broad interpretation of the principle of territorial jurisdiction that befits the character of the crime. Trafficking in human beings is a protracted process that can be divided into several—temporal and spatial—segments, involving different activities and agents. However, all these parts display a functional coherence and the common aim of making a profit through the exploitation of human beings. Trafficking can be qualified as a continuous crime par excellence and this justifies an integral criminal law response, implying the exercise of jurisdiction over all participants, even if they performed their contribution abroad.
49. The extensive interpretation of the principle of territorial jurisdiction has been followed by criminal courts from both common law and civil law systems. For the purpose of this article, some examples will suffice.
50. In the Sneep case, before a Dutch criminal court, the suspects had allegedly co-operated in a criminal organization which had recruited women in Belgium, Germany and Turkey, and had transferred these women to the Netherlands for the purpose of their sexual exploitation. According to the indictment, the organization was notorious for its particularly violent and intimidating behaviour, showing no respect at all for the mental and physical integrity of the victims.73 Counsel for the defense had argued that the Prosecutor should be declared inadmissible in its claims, because the court lacked jurisdiction over the recruitment of one of the women which had been performed abroad by a foreign suspect. The Court did not share counsel's opinion and held that:
[O]n the basis of Article 2 of the Dutch Penal Code, Dutch criminal law is applicable on each person who commits an offence on Dutch territory. The suspect is charged with trafficking in human beings, which, in so far as it concerns one and the same victim, should, in the opinion of the court, be considered as a continuous crime that is realized by a composition of activities performed at different places. The suspect is charged with different executing activities which have taken place both in the Netherlands and in Belgium. If other places, outside Dutch territory, can be considered as places where the criminal offence has been committed, prosecution in the Netherlands is possible, also in respect of those elements of the criminal offence that took place outside the Netherlands.74
51. In other words, the aim of States to enforce the criminal law within the boundaries of their territory urges courts to consider transnational crimes as a single threat, consisting of several constituent elements and prompts them to extend jurisdiction over those activities that occur beyond this territorial realm.
52. A similar broad interpretation and application of the territoriality principle has been exhibited by courts of other jurisdictions. In the case of García and others, young Colombian women had been recruited by a criminal organization and transported to different places abroad (Hong Kong, Singapore and Indonesia) where they had been received and subjected to prostitution and other types of sexual exploitation.75 The defendants had claimed that the Colombian District Court did not have competence to hear the matter and that each defendant should be heard in the place where they allegedly had contact with the victims. The Court held, however, that the offenses were not limited to a specific place and could potentially cover conduct committed as part of an international human trafficking network which transported, received, placed and sexually exploited victims abroad. It added that the charges included all actions carried out by the organization of which the suspects were a part and found that the actions carried out by each and every one of the members in the framework were attributable to all the members of the organization. The Court concluded that when a crime takes place in several locations, the issue of territorial jurisdiction is decided on the basis of “the place where the Prosecution decides to start the prosecution, among the different places that have been scenery of the criminal conduct, and where the fundamental elements of the accusation remain”. In other words, by making use of the legal concept of conspiracy and the concomitant mutual attribution of acts of all the members of the organization, the Court was able to try those parts of the offence that occurred abroad.
53. The Supreme Court of Paraguay has explicitly placed the extensive application of the territoriality principle in the key of protection against human trafficking under Paraguayan law.76 In this case, the defendants had deceived the victim into thinking that she was travelling to Spain in order to work in a grocery store, but when she arrived, she discovered that she was to work in a brothel. Initially, an appellate court had acquitted the defendants for lack of jurisdiction, invoking Article 37(5) of the Code of Criminal Procedure which provides that when a punishable act is prepared or started in one place but executed in another, the court of the last place will have jurisdiction. However, the Supreme Court overturned the Court of Appeal's decision by affirming that the Paraguayan courts had jurisdiction. The Supreme Court noted that human trafficking has three well-defined stages, the recruitment, the transfer and the harbouring or reception. The Court found that the location element of the jurisdiction had been satisfied because the first two stages—recruitment and transfer—took place in Paraguay, and the third stage fit under Article 8 of the Penal Code, which establishes jurisdiction for acts performed abroad that go against universally protected legal rights. The Court held that universal rights provisions envisaged protections against human trafficking, so the Court had territorial jurisdiction over all three stages. The Paraguayan Supreme Court thus not only asserted jurisdiction over inchoate components of the offence that occurred on Paraguayan territory, but also expanded its jurisdictional powers over extra-territorial portions that depicted and completed the entire scope of the venture.
54. The High Court of Fiji addressed the question whether it had jurisdiction over a defendant who had cajoled seven Indian citizens to pay him sizable amounts of money in return for the service of arranging work for them on a farm in New Zealand.77 The defendant had provided the men with false documents, had booked flights to Fiji and, on arrival and questioned by immigration officers, denied that he knew them, apparently with the intention to leave the victims in Fiji and return to India. While the defendant was charged with trafficking in human beings, defense counsel contended that the allegations of trafficking and obtaining property by deception arose entirely in India, and the Fiji courts had no jurisdiction over the matter. The court rejected this argument. Whilst the alleged deception indeed occurred in India, the court found that a result of that alleged conduct was the unintended entry of seven men into Fiji. On that basis, the High Court of Fiji was able to exercise jurisdiction over the matter.
55. These decisions exemplify a wider and growing inclination of courts to harbour an expansive interpretation of (territorial) jurisdiction. They cast doubt on the quest for further extension of jurisdiction. Nina Tavakoli deplores the fact that the UN Trafficking Protocol does not provide for universal jurisdiction and she advocates the reclassification of human trafficking as “slavery”, in order to repair that deficit.78 Apparently, she suggests that the upgrading of human trafficking to the realm of international crimes stricto sensu does not merely concern the quibbling over semantics, but serves the purpose of improved criminal law enforcement. Although one can appreciate Tavakoli's commitment, her arguments in favour of universal jurisdiction are unconvincing for the following reasons. Universal jurisdiction is meant to compensate for a territorial State's inability or unwillingness to effectively prosecute very serious crimes and serves as a default option. The admittedly small anthology of cases presented above offers the impression of courts' increasing dedication and capacity to counter human trafficking, including offences that have been committed beyond their borders. More generally, they demonstrate that limited jurisdiction is not the major bottleneck in the national prosecution and trial of trafficking in human beings.
Harmonization of substantive law on trafficking in human beings: constituent elements and concepts of criminal responsibility
56. All conventions aim to achieve a high level of harmonization of (substantive) criminal law between the States Parties by instructing them to implement the constituent elements of the standard definition of human trafficking in their own legislation.79 Additionally, the Council of Europe Convention encourages States Parties to consider adopting legislation in order to criminalize the use of services of a victim and obliges States Parties to criminalize acts relating to travel or identity documents, like forging or procuring such documents.80 Not only principal perpetrators who actually commit the offence should incur criminal responsibility, accomplices and those who attempt the offence should be covered by criminal law provisions as well.81
57. While the legal obligations pertaining to the implementation of substantive law are clear, and the normative framework is both detailed and sophisticated, the pertinent question is whether national jurisdictions are inclined to abide by these international standards. I will briefly discuss two cases from distinct legal systems (Israel and the Netherlands) in which the courts addressed the relationship between national criminal law provisions and their international models.
58. In the case of Frudenthal v. Israel, the appellant (Mr. Frudenthal) had been tried and convicted for trafficking in persons for the purpose of employing them as prostitutes, as well as for the additional crimes of pimping for prostitution, threats and false imprisonment.82 On appeal, counsel for the defense argued that his client's activities could not be qualified as trafficking. In introducing the crime of trafficking in persons as a separate offense, the legislature had criminalized the “sale” or “purchase” of a person for the employment in prostitution, but had not criminalized any “other transaction”. These specific legal concepts should be interpreted in their narrow sense, according to the Sale Law 1968 and other civil laws. According to counsel, his client did not own the women and did not have the option to sell them for full consideration.
59. The Court rejected counsel's representation. Qualifying trafficking as a “vile scourge”, the Court emphasized that the phenomenon violated “fundamental human rights including the rights to liberty, bodily integrity and human dignity”. The Court added that “there is no doubt that substantively, every link in the chain is an act of trafficking, so long as it permits people to be treated as property or chattel that can be transferred for trade”. A narrow, civil law interpretation of “selling” and “purchasing” would go against the grain of the purpose of the criminal law prohibition: “It makes no difference whether it is a ‘business arrangement’ under the guise of ownership, rental borrowing, partnership, or any other means of creating a property interest in a person. All of these are considered trafficking under the provisions of section 203A(a).”83
60. In expounding its position, the Court explicitly referred to the UN Convention on Transnational Organized Crime and the UN Protocol:
As part of its efforts to join the international struggle against trafficking in persons, Israel signed the United Nations Convention Against Transnational Organized Crime, including the Protocol to Prevent, Supress, and Punish Trafficking in Persons which supplements the Convention. The Convention and the Protocol, which will enter into force shortly, have yet to be ratified in Israel, but Israel's joining the Convention expresses its aspiration to take an active part in the norms that the family of nations has created around this issue …. We therefore should interpret the provisions of the Israeli Statute in accordance with the spirit of the Convention, which seeks to prevent the exploitation of power in the form of transferring people and trafficking in them for the purpose of prostitution or slavery.84
61. The Dutch case concerned the prosecution of the owner of a Chinese restaurant who had employed Chinese persons, illegally residing in the Netherlands, making them toil for 11 hours a day on average, during six days a week, in exchange for food and housing, with no or very little financial remuneration. The Court of Appeal had acquitted the accused of the charges of trafficking in human beings, finding insufficient proof of “compulsive exploitation”.85
62. The Supreme Court extensively quoted the Explanatory Memorandum on the introduction of new legislation on trafficking in human beings in the Netherlands which revealed that the new provisions had been incorporated in order to implement regional and international instruments. Whereas former provisions specifically addressed (involuntary) prostitution and other forms of sexual exploitation, the new legislation—in conformity with the international regulations—applied to all kinds of commercial exploitation. Article 273f (new) of the Dutch Penal Code literally copies the definition as provided in the UN Protocol and the Supreme Court proceeded to clarify two legal elements. The first issue concerned the required mens rea of the perpetrator in respect of “the abuse of a position of vulnerability”, being one of the means of trafficking. The Supreme Court held that for the proof of “abuse” it would suffice that the perpetrator had been aware of the relevant factual circumstances from which a position of preponderance ensued—or could ensue—in the sense that the perpetrator had dolus eventualis in respect of those circumstances. The Court of Appeal had erred in requiring that the perpetrator had “purposefully abused” the vulnerable position of the victim. Nor was it necessary, as the Court of Appeal had wrongly held, that the perpetrator had actively created the situation of exploitation, or that he had taken the initiative to bring the victims into their vulnerable position.86 Secondly, the Supreme Court inquired what factual circumstances yielded “exploitation” and whether the Court of Appeal had correctly interpreted and applied that concept. While the Supreme Court admitted that an abstract and general definition could not be advanced, the Court identified a number of factors, such as the nature and length of the employment, the limitations it involved for the employees and the economic advantages for the employer, that should be taken into consideration. Moreover, these and similar factors should be gauged against prevailing standards in Dutch society. In view of these parameters, the Supreme Court found the Court of Appeal's conclusion that no exploitation could be proven from the facts, wanting and incomprehensible, as they earned extremely low salaries, had to work for 11 to 13 hours a day and had to share small bedrooms with others.87
63. Both these decisions provide useful clarification of international standards that still require further elucidation and interpretation. What they also have in common, though, is that they both take the international definition as authoritative guideline and endeavour to apply national law in the spirit of the international model. Again, two cases do not evince that all courts faithfully comply with the definition as advanced in the UN Protocol. However, they demonstrate that the efforts at the international level to further harmonize substantive provisions at least have yielded results.
International co-operation in respect of trafficking in human beings
64. While States may be inclined to extend their jurisdiction over criminal activities relating to trafficking that occur abroad, and while they may possess the necessary legal tools, for a successful criminal procedure they have to rely on the assistance of other States. After all, suspects will often reside abroad and the evidence may also be dispersed over several jurisdictions.
65. The relevance of international co-operation in criminal matters is emphasized in the conventions that deal with the repression of trafficking in human beings. The United Nations Convention against Transnational Organized Crime in particular covers the whole gamut of forms of international co-operation. With respect to extradition, Article 16 requires States Parties to consider trafficking as an extraditable offence. If the State Party makes extradition conditional on the existence of a treaty, it may consider the UNCTOC as an adequate legal basis and States Parties are deemed to include trafficking as an extraditable offence in each and every treaty that exists between them and that they are still to conclude.88 As has previously been observed, these obligations only apply to transnational crimes, involving an organized criminal group. However, States Parties are invited to apply these provisions also in respect of serious offences that lack those features.89 The Council of Europe Convention on Trafficking is far less elaborate and simply enjoins parties to adopt legislation, threatening trafficking in human beings with sanctions that can give rise to extradition.90 While all these conventions prescribe the criminalization of trafficking in human beings and aim at harmonization of criminal law, the eventuality of diverging legislation, possibly impeding international co-operation, is still anticipated, as transpires from Article 16(1) of the UNCTOC, which restricts the application of the provision to situations in which the offence for which extradition is sought is punishable under the domestic law of both the requesting and the requested State. It is noteworthy in this context that trafficking in human beings features on the list of offences in respect of which the Framework Decision on the European Arrest Warrant has partially abolished the requirement of double criminality.91
66. Mutual assistance in criminal matters, in particular with a view to the obtaining and exchange of criminal evidence, is the topic of the longest provision—Article 18—of the UNCTOC, counting no less than 30 sections. With the usual disqualifications—the provision only applies to transnational, organized crimes—section (1) starts by imploring States Parties to afford one another “the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention”. Section (3) immediately makes clear that procurement and supply of evidence is at the top of the list of priorities.92 In unprecedented detail, Article 18 regulates the procedural aspects of mutual legal assistance, enumerating the formal requirements of requests and stressing the importance of “spontaneous” transmission—id est without previous request—of information. In its efforts to further mutual assistance, the Convention encourages States Parties to restrain the grounds for refusal, explicitly mentioning the possibility of waiving the requirement of double criminality.93 In this context, it should be observed that the EU Framework Decision on the European evidence warrant has followed the system of the European arrest warrant by abolishing the double criminality requirement in respect of trafficking in human beings.94
67. Provisions on international co-operation for purposes of confiscation (art. 13), transfer of sentenced persons (art. 17), joint investigation teams (art. 19), co-operation in the field of special investigative techniques (art. 20) and transfer of criminal proceedings (art. 21) complement the impressive body of regulations on international co-operation in criminal matters of the UNCTOC. As indicated before, all these provisions are applicable mutatis mutandis to trafficking in human beings.
68. The Council of Europe Convention is far more frugal than its UN counterpart. Article 32 simply admonishes States Parties to “co-operate with each other … to the widest extent possible, for the purpose of … investigations or proceedings concerning criminal offences established in accordance with this Convention.” However, that is not surprising, as this Convention is established within the wider institutional framework of an organization that has been the world's pioneer in the realm of international co-operation in criminal matters and has created a host of conventions. The absence of more detailed provisions connotes deference to an already established regime.95
69. While the normative framework thus seems to be rather comprehensive and sophisticated, we must investigate how this works in practice. How do States perform in the realm of international co-operation in criminal matters with respect to trafficking in human beings? The press is mixed. In their searching study on developments in criminal justice responses to human trafficking, Gallagher and Holmes at first strike a pessimist note.96 They refer to the paucity of extradition requests and observe that States have had great trouble in overcoming the manifold political and practical hurdles, both in respect of extradition and the execution of requests for mutual legal assistance. However, the authors perceive a marked improvement “over the last years”, especially with regards to less formal police co-operation:
In Europe there has been a noticeable increase in the number of simultaneous, proactive cross-border trafficking investigations coordinated by the Europol Agency between two or more European Union States. Many of these investigations have led to the coordinated arrest of suspects as well as to simultaneous and coordinated financial investigations and sequestrations of identified assets derived from trafficking related exploitation.97
70. Gallagher and Holmes wrote their article some five years ago, and more recent trends in international co-operation in respect of trafficking seem to corroborate and even reinforce their findings. In Europe in particular, centralized and specialized agencies, such as Eurojust and Europol, increasingly play a pivotal role in planning and orchestrating concerted action between States. Two operations illustrate the growing vigour and effectiveness of joint police operations supported by these institutions.
71. Operation Golf was started in the United Kingdom, in response to an outburst of theft and pick-pocketing in London in 2005 committed by very young Roma children.98 At first, their provenance was unknown, until contacts with the Romanian police revealed that they had investigated the disappearance of over 1000 children from one single town. The connection was quickly made, especially when it transpired that destitute Roma parents had “given away” their children to criminals promising them huge profits from the revenues of their children's criminal activities. However, the parents had to pay in advance for the transport and nutrition of their children, leaving them no other option than to enter into debt peonage which they only could settle by going out stealing and begging themselves. “Police found that the criminals behind these lucrative operations consisted of members of Roma clans, some of them independent organised groups. These clans are highly hierarchically organised, family and clan-based and with the heads of family running things from their gigantic houses back in Romania.”99 In September 2008, a Joint Investigation Team (JIT) was established between the Metropolitan Police and the Romanian National Police, supported by Europol, Eurojust, the UK Crown Prosecution Service and the Romanian Prosecutors Office. The JIT soon was successful. In April 2010, it assisted the Romanian authorities in the arrest of 26 individuals from the organized criminal network from Tandarei. They faced charges in Romania for trafficking and criminal exploitation of 181 named children, being members of an organized criminal network and money laundering.100 As members of the criminal organization had endeavoured fraudulently to obtain social benefits from the UK security system for the children and parents they had trafficked, the emphasis of the Prosecution Service in the United Kingdom was more on those charges. In November 2010 six members of the criminal organization were convicted on counts of (conspiracy to commit) fraud to prison sentences ranging from 12 months to three years.
72. Operation Koolvis was triggered by a Dutch lawyer who addressed the Dutch expert centre for human trafficking and smuggling, expressing her suspicion that one of her Nigerian clients was a victim of human trafficking.101 Investigations at Schiphol Airport revealed a huge influx of Nigerian women in the Netherlands between October 2005 and May 2006 and the subsequent disappearance of Nigerian women from shelters for victims of human trafficking. The Pekari-project, which was initiated to gather intelligence on trafficking from Nigeria, divulged that the Netherlands were used as transit country in order to transport the women to their final destination in Italy or Spain where they were forced into prostitution. The Koolvis project, which aimed at stopping the trafficking and exposing the organizations behind this trade in Nigerian women, involved a large number of institutions, including Europol and Interpol, and Dutch law enforcement authorities who worked in close co-operation with colleagues from Nigeria, Belgium, the United Kingdom, the United States, Spain, Germany, France and Italy. The project entailed a neat division of labour, with Nigerian police officials trying to prevent the influx of Nigerian women and Dutch law enforcement authorities engaging in the tracking down of the women who had vanished from the shelter-centres. Through the identification of 140 victims, the police officers of the States involved in the project were able to arrest several suspects, among them Nigerian madams who had ordered the women and three “leaders” who were found in the UK, Ireland and the USA. Parallel prosecutions took place in Italy, Nigeria and the Netherlands, and in the latter country this resulted in several convictions on charges of trafficking in human beings, smuggling of migrants and membership of a criminal organization. One of the accused was dismissed from the charges, though, because of a previous acquittal in Italy.102
73. Operation Golf and operation Koolvis represent two success stories which display a number of common features. Both concerned the involvement of huge organizations with hierarchical structures, whose criminal activities affected several countries. This prompted law enforcement authorities to seek close co-operation, which was encouraged and orchestrated by supra-national institutions like Europol and Eurojust. The fairly recent instrument of the Joint Investigation Team offers ample opportunities for such concerted action.103
74. However, in academic literature, it is observed that large, hierarchical organizations do no longer prevail and are replaced by loose networks of specialists who all perform a specific function.104 The phenomenon of the “loverboy” who works alone and is keen on making quick profit challenges even more strongly the general picture that trafficking is conducted by “organized crime”.105 This organizational shift has two consequences. Firstly, if the threshold of a “criminal organization”, as defined in the UN Convention on Transnational Organised Crime, is not reached, States are not under an obligation to afford each other the widest measure of assistance. And secondly, the incentive to co-operate may be lesser if criminal activities have no longer ramifications in different countries, although one might observe that the establishment of, for instance, a JIT in such cases is not necessary, if allowed at all.106
75. While these sobering last remarks slightly dampen the high hopes, they do not distract from the general conclusion that international co-operation in criminal matters in respect of trafficking is gradually maturing.
The alternative: criminal law enforcement by international or regional courts
76. The previous section has attempted to give an overview of national criminal law enforcement in respect of trafficking in human beings. It cannot pretend to give more than “an overview”, because a more comprehensive survey would require the analysis in comparative perspective of many domestic jurisdictions, an exercise that would clearly exceed the limits of this article.107 Still, some observations can be made and some cautious conclusions can be drawn.
77. International Conventions on the suppression of Transnational Crimes in general, and on trafficking in human beings in particular, aspire to reinforce the legal framework for national law enforcement by identifying a number of issues which are considered as critical to that purpose: jurisdiction, substantive law and international co-operation. The findings in the previous section reveal that the performance of domestic jurisdictions in none of these fields is alarmingly wanting, urgently requiring a different approach. International law allows States leeway to determine the scope of their territorial jurisdiction and States have used this discretion to extend their jurisdiction over acts which are committed abroad but are completed or have effects on their territory. The UN Protocol has introduced a clear and detailed definition of trafficking which has been copied by other conventions and which serves States as a source of inspiration, thus contributing to the harmonization of substantive law. And States are gradually overcoming political and legal hurdles in their quest to intensify international co-operation in criminal matters.
78. Still, these positive developments require some qualification. Academic literature focuses strongly on European legal practice, which is being embedded in the institutional structures of the Council of Europe and the European Union, by far the most sophisticated and advanced. While there are some indications of increasing co-operation between European countries and—for instance—African countries (vide Operation Koolvis), the performance of non-Western States is largely uncharted terrain.108 Furthermore, the UN Protocol and its progenies have been mainly preoccupied with organized crime engaging in trafficking, whereas currently looser networks are on the rise. As legislation and multi-lateral assistance treaties may not be attuned to these forms of “un- or less- organized” crime, the perpetrators may easily fall between the cracks of law enforcement.
79. In view of these potential shortcomings of national law enforcement, the involvement of international or regional courts and institutions is worthy of consideration. What are the options? For several reasons it seems unwise, if not impossible, to expand the jurisdiction ratione materiae of the ICC with a separate crime of trafficking in human beings. The ICC has always been considered as a default mechanism which is called to intervene whenever national criminal justice is not available. That idea has of course been embodied in the famous complementarity principle. The unavailability of national criminal justice may have different causes, the most important of them being the involvement in massive human rights violations of the State itself.109 But the State may also be unable to cope with a rival organization, contending its monopoly of power and engaging in atrocities, or its judicial system may have suffered severe blows due to protracted armed conflict. None of these conditions seems to apply to trafficking in human beings. While State officials may incidentally be involved in trafficking, these are not crimes that are usually committed or condoned “on a massive scale” by the State. Unless, of course, they are “common practice” and sanctioned by official policy, in which case they would qualify as crimes against humanity (see the discussion of Kunarac in Section II). Most organizations that engage in human trafficking will not have the power and resources to seriously challenge the dominant position of the State, an idea that is even more far-fetched in view of the quantitative shrinking of organizations, as noticed above. In short, though States may have problems in prosecuting traffickers in human beings, they are not chronically “unwilling or unable” to do so.110 In this context, it is telling that trafficking in human beings does not feature on the list of “missing crimes” which were proposed to be included in the Rome Statute during the preparatory meetings.111
80. Another possibility would be the establishment of a—regional or international—tribunal, exclusively dealing with the crime of trafficking, modelled after the piracy court which has been considered as one of the options to counter the threat of Somalian pirates. This court has only received lukewarm support, in view of its potentially infinite caseload.112 And indeed, the disadvantages appear to outweigh the advantages, the major objection arguably being that the restricted jurisdiction of such a court would impede it from prosecuting and trying connected crimes, like for instance social security fraud (compare the case of Operation Golf, discussed in Section III.D).
81. A more comprehensive solution has been discussed and endorsed by Neil Boister.113 He propagates the establishment of a transnational criminal court (TCC) that should have jurisdiction over all kinds of transnational crime and should operate within a horizontal, non-hierarchical setting. States would be entitled to seize the court, as a third option instead of aut dedere, aut judicare, and the court would apply the national criminal law of the State that has taken the initiative. In Boister's opinion, this TCC would serve as an auxiliary institution, protecting the autonomy of the State, rather than undermining it.114 In order to protect the TCC against an overwhelming caseload, Boister suggests the introduction of admissibility thresholds, including the gravity of the crime, the transnationality of effect and the involvement of criminal organizations.115 But that would precisely prevent the Court from addressing the volatile, loosely structured networks that currently cause national law enforcement a lot of trouble. While Boister's proposal deserves further study, it does not resolve all problems.
82. Finally, one could envisage the involvement of regional courts in the prosecution and trial of trafficking in human beings. An asset of this option is obviously that one could build on existing structures and institutions. Trafficking in human beings features on the list of crimes which will prospectively belong to the jurisdiction of the African Court of Justice and Human Rights.116 And Article 86(1) of the Treaty on the European Union explicitly provides for the establishment of a European Public Prosecutor's Office (EPPO). While Article 86(2) restricts the prosecutorial powers of the EPPO to offenses that damage the financial interests of the European Union, section (4) envisages an extension of the Office's competence over serious crime with a transnational aspect. As Article 83 of the Treaty explicitly mentions “human trafficking and the exploitation of women and children” as one of the topics on which the European parliament and the Council are competent to enact directives, it is rather self-evident that these offences would qualify for being pursued by the EPPO.117
83. On the other hand, one should not overestimate the progress made in this respect. The plans of the African Union to extend the jurisdiction of the African Court are rather premature and are often considered as a political move to eclipse the ICC.118 Moreover, the project of a European criminal court has lost momentum.119 One of the great drawbacks of regional courts in relation to transnational crime is that they are by nature inward-looking and introspective. They would have jurisdiction over crimes committed on the territory of the closed group of States belonging to the region, but they would usually not have the legal instruments to persuade—let alone compel—third States to render assistance.
84. In conclusion, while international or regional courts adjudicating trafficking in human beings should not be excluded a priori, all options reveal shortcomings. In the opinion of the author, one should give priority to improvement of national law enforcement, rather than bet on international or regional solutions. Two aspects deserve particular attention. For one thing, the geographical scope of international co-operation in criminal matters should be reinforced and extended, linking countries of provenance and countries of destination. Secondly, States should make efforts to invest in the effective investigation, prosecution and trial—including international co-operation—of loosely structured networks that do not exhibit the features of criminal organizations. In both respects, the institutional framework of the European Union makes promising overtures. Article 26(a) of the EU-Decision on Eurojust, stipulates that Eurojust may establish and maintain co-operative relations with third States, while Article 27(b) allots a co-ordinating role to Eurojust in the execution of requests from third States and the transmission of requests for co-operation to third States.120 Moreover, none of the EU Framework Decisions makes the obligation of Member States to render mutual assistance dependent on the involvement of a criminal organization in human trafficking.
85. The notion of slavery has expanded over the course of time. It is no longer restricted to the classic “chattel slavery”, but encompasses also other forms of domination and exploitation that entail—in the words of the ICTY Appeals Chamber in Kunarac—the destruction of the juridical personality. As a consequence, the boundaries between trafficking in human beings and enslavement have blurred. At first sight, the authoritative definition of trafficking in human beings in the UN Protocol seems to suggest that slavery is a subset of human trafficking, by qualifying it as one possible form of exploitation, but that inference obscures that severe forms of sexual exploitation and forced labour or servitude are increasingly considered as “slavery”. There is therefore a growing overlap between the concepts of trafficking and enslavement.
86. In this article, I have attempted to demonstrate that these notions do not yet coincide. The distinctive feature of enslavement is the exercise of powers attaching to the right of ownership. Lighter forms of exploitation where traffickers, while reaping benefits from other people, still recognize the humanity of their victims would in my view not qualify as enslavement. Conversely, not all slavery is accomplished by the means and methods that are enunciated in the UN Protocol on Human Trafficking. In other words, not all forms of human trafficking constitute enslavement and not all slavery is human trafficking. Moreover, only enslavement that is part of a widespread or systematic attack committed against a civilian population by an organization with State-like features qualifies as a crime against humanity.
87. The fact that human trafficking covers a wide array of offences bears upon the choice of criminal law enforcement. While enslavement as a crime against humanity falls within the jurisdiction of international criminal tribunals and the ICC, other forms of human trafficking, including slavery, should in my view best be left to national criminal law enforcement. I would like to emphasize that this point of view by no means entails a disparagement of the seriousness of the crime. My preference for national criminal law enforcement hinges on two considerations. Firstly, as I have tried to demonstrate in Section III, the record of domestic jurisdictions is gradually improving, as they are increasingly capable of overcoming the traditional hurdles of lack of jurisdiction, poor implementation of substantive law and ineffective co-operation. Secondly, it is questionable whether international criminal tribunals can offer a better alternative. Their involvement has a strong symbolic connotation, but their performance and effectiveness is not necessarily superior. Criminal law cannot, of course, cure all societal ills, but it can play a modest role and is best left in the hands of States which can mobilize their resources and integrate criminal law enforcement with other measures that will counter the scourge of trafficking in human beings.
Debt peonage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security of a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;
Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;
Any institution or practice whereby:
A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any person or group; or
The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or
A woman on the death of her husband is liable to be inherited by another person.
Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.
… a State Party may also establish its jurisdiction over any such offence when:
c) The offence is
(i) One of those established in accordance with article 5, paragraph 1, of this Convention and is committed outside its territory with a view to commission of a serious crime within its territory;
(ii) One of those established in accordance with article 6, paragraph 1 (b) (ii), of this Convention and is committed outside its territory with a view to the commission of an offence established in accordance with article 6, paragraph 1 (a) (i) or (ii) or (b) (i), of this Convention within its territory. Article 5 and article 6 refer to criminalization of participation in an organized criminal group and criminalization of the laundering of the proceeds of crime respectively.
“if the request is not made in conformity with the provisions of this article;
if the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests;
if the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;
if it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.”