Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children
Part I - Purpose, scope and criminal sanctions (Articles 1-4)
Articles 1, 2 and 4 set out the relationship between the Protocol and its parent instrument, the UN Convention against Transnational Organized Crime, the basic purpose of the Protocol and its scope of application. The Protocol is not a stand-alone instrument. It must be read and applied together with the parent Convention, and each country is required to become a party to the Convention in order to become party to the Protocol. Protocol offences are deemed to be Convention offences for the purposes of extradition and other forms of cooperation, and most of the provisions must be read together.
The Convention has general powers for dealing with transnational organized crime, while each Protocol has additional provisions that supplement those of the Convention and that focus on the specific subject matter of the Protocol. This is an important asset for national legislators, prosecutors and law enforcement agencies because of the complexity of major criminal organizations and the diverse range of crimes in which they engage: the combination of the Convention and one or more Protocols makes it possible for countries to attack trafficking in the broader context of the organized criminal groups and not just as one distinct area of criminal activity.
The application of the Protocol is governed by the same rules as is the application of the Convention: between States Parties, both instruments apply in any case involving the investigation or prosecution of an offence that is suspected of being “transnational in nature” and involving an “organized criminal group”, as defined in the Convention. These conditions govern international cooperation between parties but not the domestic law adopted pursuant to the Convention and its Protocols. Domestic law should apply regardless of whether trafficking or other illicit activities involve transnational organized crime, so that prosecutors do not need to prove these elements in domestic courts: trafficking in human beings is a crime whether it crosses national borders or not and regardless of whether it can be linked to organized crime.
The basic purpose of the Protocol is to prevent and combat trafficking, to protect and assist victims and to promote international cooperation. Victims and witnesses are also dealt with in the parent Convention, but the protection of, and assistance to, victims is specified as a core purpose of the Protocol in recognition of the acute needs of trafficking victims and the importance of victim assistance, both as an end in itself and as a means to support the investigation and prosecution of trafficking crimes.
Definition of “trafficking in persons”
"Trafficking in persons" is defined in Article 2 of the Protocol, the first time that the international community has developed and agreed to a definition. Essentially, trafficking consists of actions in which offenders gain control of victims by coercive or deceptive means or by exploiting relationships, like those between parents and children, in which one party has relatively little power or influence and is therefore vulnerable to trafficking.
Once initial control is gained, victims are moved to a place where there is a market for their services and where they often lack language skills and other basic knowledge that would enable them to seek help. Destinations are commonly in foreign countries, but that is not always the case – international borders do not have to be crossed. Upon arrival at their destination, victims are forced to work in difficult, dangerous and usually unpleasant occupations, such as prostitution, the production of child pornography or general labour, in order to earn profits for the traffickers. Like other smuggled or trafficked commodities, victims are sometimes simply sold from one criminal group to another, but unlike other commodities, they can be made to work for long periods after arrival at their final destination, generating far greater profits for traffickers at all stages of the process.
Article 3, paragraph (a) of the Protocol defines trafficking as follows:
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
Several significant issues were resolved in developing this definition and other Protocol provisions. The broad range of forms taken by modern trafficking was difficult to cover in a single provision, particularly with the degree of clarity needed to form the basis of criminal laws adopted by national legislatures. The definition, criminalization requirements and other elements of both the Convention and its Protocols, therefore, set only minimum standards, which countries can exceed or supplement in accordance with their needs. The definition uses language such as “...at a minimum...” to express this principle, and Article 34, paragraph (3) of the Convention expressly authorizes measures that are “more strict or severe” than those required by the instruments.
The role of victim consent was also a difficult issue. On one hand, negotiators were aware that victims often consent to their initial recruitment based on deception or misinformation about where they will be taken and what will happen when they arrive. The reality is that any initial consent is usually rendered meaningless, if not by the initial deception, then by the use of force or other coercive or abusive conduct on the part of traffickers.
On the other hand, requiring countries to make the consent of victims completely irrelevant could exclude valid defences and raise constitutional or other problems in many countries. The solution was to specify that, while consent may initially be raised by accused traffickers, consent to initial recruitment is not the same as consent to the entire course of trafficking and any alleged consent to exploitation must be deemed irrelevant if any of the means of trafficking listed in the definition have occurred (i.e., the threat or use of force, coercion, abduction, fraud, deception, the abuse of power or a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person such as a parent).
A third issue was whether the Protocol should focus on women and children, who are the most common victims of trafficking, or extend to all persons. Negotiators referred this question back to the General Assembly, which expanded the original mandate to include trafficking in all “persons”, regardless of age or gender (GA/RES/54/126), and the Protocol was finalized on that basis.
Part II - Protection of trafficked persons (Articles 6-8)
In addition to taking action against traffickers, the Protocol requires States that ratify it to take some steps to protect and assist victims of trafficking. These supplement the more general provisions of the parent Convention for the protection of victims and witnesses, recognizing that victims of trafficking are often in greater danger and in greater need of assistance and support, particularly if repatriated to their countries of origin. Under the Protocol, trafficking victims would be entitled to some degree of confidentiality, information about legal proceedings involving traffickers and assistance in making representations in such proceedings at an appropriate stage. Under both instruments, countries must also endeavour to provide for the basic safety and security of victims, and the Protocol requires that victims be afforded “…the possibility of obtaining compensation for damage suffered…”.
The Protocol also calls for further social assistance to victims in areas such as counselling, housing, education and health care needs, although these are not obligatory. The obligations of States regarding victims fall upon whichever State the victim is in at a given time.
The legal status of trafficked persons and whether they would eventually be returned to their countries of origin was also the subject of extensive negotiations. Generally, the developed countries to which persons are often trafficked take the position that there should not be a legal right to remain in their countries as this would provide an incentive both for trafficking and illegal migration. Countries whose nationals were more likely to be trafficked sought as much protection and legal status for trafficked persons as possible.
The agreed upon provision (Art. 8) requires countries to “facilitate and accept” the return of victims who are their nationals or who had legal residency rights when they were trafficked into the destination country, and then incorporates a series of safeguards to protect victims. Repatriation should be voluntary, if possible, and must take into consideration the safety of the victim and the status of any ongoing legal proceedings. This also helps to ensure the viability of prosecutions by reducing the likelihood that witnesses will be repatriated before they can testify. A further safeguard provision (Art. 14) protects other fundamental interests, including those of trafficking victims who are also asylum seekers, and the principle of non-discrimination.
Part III - Prevention, cooperation and other measures (Articles 9-13)
Law enforcement agencies of countries that ratify the Protocol are required to cooperate in such things as the identification of offenders and trafficked persons, sharing information about the methods of offenders, and the training of investigators, law enforcement and victim support personnel (Art. 10). Countries are also required to implement security and border controls to detect and prevent trafficking (Art. 11-13). These measures include strengthening their own border controls, imposing requirements on commercial carriers to check passports and visas, setting standards for the technical quality of passports and other travel documents, protecting the production and issuance of travel documents from fraud and corruption, and ensuring the expeditious cooperation of security personnel in establishing the validity of their own documents on request.
These precautions are equally important for the prevention of trafficking in persons and the smuggling of migrants, and identical requirements have been included in both Protocols, a fact which may also make joint implementation easier for countries that wish to do so. Joint implementation may also have advantages for law enforcement and prosecution agencies, who would be able to deal with cases initially as migrant smuggling until the added elements of improper recruitment and exploitation necessary to build a trafficking case can be established.
Social methods of prevention, such as research, advertising and social or economic support, are also provided for. The specific provisions of the Protocol (Art. 9) should be read in conjunction with the parallel provisions of the Convention (Art. 31), which contains additional language dealing with the alleviation of social conditions and the need for public information campaigns. These are particularly important with respect to trafficking, where the willingness – and in some cases desperation – of potential victims to relocate and their ignorance of trafficking and the true conditions in the destinations to which they are trafficked, have been identified as major contributing factors. In addition to general social prevention measures, the Protocol also calls for measures to prevent re-victimization, where victims who are returned to their countries of origin are simply trafficked out again.