Human Rights Approach In Detecting Human Trafficking Criminology Essay

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Omotayo arrived in France when he was 11. His father allowed him to leave Nigeria with unknown woman, which promised a good education for him and even bought clothes for his other 4 siblings. In France Omotayo was asked to beg in the streets and all money give to an unknown man. He lived with other 2 boys in a small house. He had no his own money and very often was starving. However, he did not try to escape because he did not speak French as well as his documents were taken by his oppressor.

This story may be described in other words as: „the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation, including, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

The sentence above defines a crime of trafficking in human beings (THB). It is an extract from the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime from 2000 (the Palermo Protocol) [1] .

Such definition, however, might sound really troublesome, especially for those not oriented in international penal law. That is why for better understanding of THB issue I would propose shorter description. Trafficking in human beings is a violation of human rights [2] . Furthermore, it is not a single violation but a collective act of violations of different human rights. Regarding THB as such violation is a common attitude of international community, especially while dealing with it in the context of transnational organised crime.

It is difficult to imagine that slavery still exists today and the trade in people is a form of modern slavery - a phenomenon that in a globalized world is becoming wider in scope and which should become a growing concern on the part of the whole international community. Human trafficking is today (right after arms and drugs trade) - the largest source of income of organized crime groupes, reaching revenues between 30 and 40 billion dollars a year. Trafficking in human beings is a dynamic phenomenon, taking on new forms, and thus hinder the effective fight against this type of crime.

THB elements and human rights

Human trafficking is not a single action which constitutes crime. It is combined by: the act (what is done?) in a form of process from recruitment, through transportation, transfer to harbouring and receipt of persons, the means (how it is done?) and the purpose (why it is done?). The core element if THB is constituted by the purpose of exploitation (which can start in origin, transit and destination location). It is a main purpose of this crime and by itself constitues a human rights violation as well it abuses personal integrity of the trafficked person. According to C. Rijken and D. Koster exploitation should be interpretated as a form of abuse that is excessive in nature, either as a result of the seriousness of physical or emotional manipulation (threats and violence) or as a result of a multitude of restrictions that are imposed on the victim [3] .

Exploitation may appear in different forms: sexual - commercial sex (brothels, escort) labour - forced labour or services, slavery and servitude, begging and even in removal of organs. Moreover, there is no doubt that it violates the the right to personal freedom and security, freedom of movement, and independence of a trafficked person. Exploitation as such influences physical and menthal integrity of person. Very often victims of THB are even forced by tortures to give sexual services or work under inhuman conditions. However, it is arguable what level of exploitation is enough to indicate the crime of THB [4] . Also the means violate human rights. Just to mention that the methods used for trafficking are based on threats, use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim [5] . Human rights violations can also be present throughout the whole THB process. Exploitation sometimes starts at its very beginning. Recruitment can be gained by a full or partial deception [6] , but in some cases it exists in a form of forced recruitment - when the person can not express his/her will (kidnapping, forced drug usage). Furthermore, even transportation and transfer of trafficked person may occur circumstances, which are seen as abuses of fundamental rights (freedom of movement, prohibition of tortures and other degradating and inhuman practices).

Although, we must understand that THB itself is a source of a complex human rights violations. It attacks and ignores many fundamental freedoms at the same time. That is why, development of this crime is eccesively dangerous tendency.

Human rights violations as a cause of THB

What is neccessary to mention here is the fact that not every victim of THB is simply kidnapped or taken away by other means of forced recruitment and then sold in the destination place in purpose of exploitation. In most of the cases victims make themselves a potential victim because he/she desires to leave the country/region because of inter alia: economic situation in the place of origin (political situation, poverty, lack of opportunities, unemployment, lack of education, loss of wealth, primitive living conditions and medical care) or even personal motivation influenced by family pressure or an adventurous attitude, the urgent need of getting a lot of money.

However, such decision of the person may also be an effect of human rights violations which already took place or may possibly start in the future. Most common exapmles are: racism, gender inequality, domestic violence, religious intolerance, intolerance for ethnic or sexual minorities, terrorism, slavery, other forms of persecutions or even pollutions, ecologic disasters which violate the right to health environment [7] .

These factors which forcefully push people into migration are called push factors. They are strong and relate to the country/place from which a person would like to migrate. It is generally some problem which results in people wanting to migrate. It is distress that drives a person away from a certain place. There are also so-called pull factors, which attract people into migration. A pull factor is something concerning the country to which a person migrates. It is generally a benefit that attracts people to a certain place (more opportunities, higher salaries, better living conditions, demand for cheap migrant labour, friendly migration rules, better education and medical care, general enjoyment) [8] . From the human rights perspective we can distinguish for example: political, religious, sexual freedom in a destination country.

The conclusion is that THB not only causes many human rights violations but, what is even more important in the context of detection, it is also one of the consequences of such violations. Both push and pull factors are connected with abuses of civic and political rights, as well as economic, social and cultural ones - especially when we talk about differences in education, social help and medical care systems. The danger also lies in the development of globalization, which often affects environment. People who are unable to enjoy their lives because of natural disasters or pollutions also would seek for better chance somewhere else. Most often, there is a very subtle interplay of factors and, of course, the victims never had the intention to expose themselves to exploitation.

Even so, these situations are used by traffickers who try to „give a hope" of better life abroad. Especially for women in many countries, there are additional push factors based on such historically or culturally determined factors as a subordinate position and having fewer rights than men. In these countries, especially under military conflict or under transition, discrimination against females is tolerated within the context of the socially constructed roles (patriarchal philosophy) - females are treated as domestic servants, less worth and subordinate to males. They own less capital (e.g., less land, lower incomes), get fewer chances on the labour market (for example, they are the first to lose their jobs in periods of economic recession, there are culturally or religiously determined obligations to take care of children or parents).15

This causes: Feminization of povertyDomestic violenceGeneral lack of legal migration opportunities

Feminization of poverty: less educational opportunities less employment opportunitieslower salaries and postsmore often dismissed

Domestic violence and abuse as domestic servants:physical psychologicalsexualby family members and partners

All these reasons are push factors for the females under discrimination to look for illegal possibilities to migrate to the countries with higher living standard The females in a vulnerable situation are easier to believe in false promises of a well-paid job opportunitiesNote: it can be applicable to some young men and boys (no education, job, domestic abuse)

The sectors particularly prone to exploitation are agriculture, construction, manufacturing, food processing, catering and domestic work, as well as illicit activities. Sometimes different types of work are associated with different genders and nationalities. For example, females are more likely to be found in domestic sector, males in the construction industry, Ukrainian women are preferred in caring for elderly and children and for cooking and cleaning, while Roma people are more often forced into begging.

Despite the proven high level of demand for foreign domestic workers in Europe, in many countries this category of workers is still one of the most vulnerable to human trafficking. Excluded from labour legislation, working in isolated and unregulated conditions, and extremely dependant on the good or bad will of the employer, domestic workers are exposed to labour exploitation, which can often be combined with sexual abuse.

For example, Latin Americans mainly work in the domestic sector in Spain; in Italy domestic workers predominantly come from the Ukraine, Moldova, Romania, the Philippines, Peru, Colombia and Ecuador; in Portugal - from African and Eastern European countries; and in Sweden - from Eastern Europe and Asian countries.

Glocal aspect of THB

Although, according to the broadly supported view, the interests of the victim should be at the centre of the attention paid to combating THB, not much is known about the victims. What is known is mostly based on findings concerning victims that have been identified in one way or the other, but a possibly large group of victims remains outside the authorities' field of vision.

These two disciplines are interwoven in such a way that they obstruct a more centralised position of

the victims and their needs. A solution for this entanglement can probably be found in the

Victim Assistance and Protection Package (VAPP) which will be introduced and


Human rights approach in THB detecting

Why is a human rights based approach to THB required?A proactive approach to counter human trafficking aimed at addressing the root causes of trafficking is therefore indispensable.

24 Since these violations cover a broad area in the social sphere and are

linked to different kinds of activities, attention to limit the chances of these violations

occurring should be focused on by various disciplines. This means that an adequate

response to the violation of these rights implies a multi-disciplinary approach, but with

the intention of preventing the violation of a victim's human rights as a common

denominator.25 Experience has learned that, without such a holistic approach, the interests

of the victims and their special position are not sufficiently taken into account. Human

rights instruments place obligations on states in which these interests are taken into

account in a better way.26 It is recognised by the High Commissioner on Human Rights

that such an approach is the only way to retain focus on the trafficked person and to

prevent that the problem is simply reduced to a migration problem, a public order

problem, or an organised crime problem.27

In the prevention of THB, there are

two options, namely, prevention on the supply side (for instance, by investigating in

countries of origin, financial aid, emancipation, and information) and prevention on the

demand side in the country of destination.

In this approach, the position of the victims, the violations of their human

rights and their vulnerable position are the starting points for taking countermeasures

against THB. This may explain why the human rights based approach is also called the

victim centred-approach.29 A human rights based approach thus takes the protection of

the human rights of victims of trafficking as the guideline for adopting measures, policy,

and legislation in the field of combating THB.30

Human trafficking can be efficiently tackled only through designing additional educational and job opportunities for women in their countries of origin, and above all by implementing the relevant docu-ments that have been adopted at the international level.

It is widely recognised that the cooperation between different authorities involved in

fighting THB is lacking or at least not satisfactory. The effects of this lack of cooperation

are clearly felt in criminal proceedings when expulsions on the basis of migration law are

executed without taking into account the position of the person who is expelled and

without taking into consideration his or her relevance for criminal proceedings.34 For

instance, in the Netherlands it was practice some years ago to hold raids on houses where

illegal aliens were accommodated in Amsterdam and The Hague and in the streetwalkers'

district in Amsterdam, as a result of which people without valid residence permits were

immediately expelled from Dutch territory. It is very likely that (possible) victims of

trafficking were among these persons.

Too often, governments respond to THB as a migration problem rather than a human

rights challenge, using trafficking as a justification for tighter border controls. This has

led to the deportation of trafficking victims, especially women, without adequate

consideration for their safety and well-being. Such an approach does not take into

account that victims who are sent back to their home country become vulnerable to being

See C. Rijken, Trafficking in Persons. Prosecution from a

European Perspective, (Asser Press, 2003), pp. 204-207.

Therefore, human rights standards must be at the core of all strategies against trafficking. Police action is essential, but it alone is not enough. It must be supplemented by concrete preventive measures and by an effective protection of the rights of the victim.

However, much more must be done to prevent the trafficking chain at its very beginning.

The root causes are known: poverty, gender inequality, unemployment, abuse and marginalisation. These human rights problems must be addressed. People are lured by traffickers because they are desperate and public information about the risks involved has not been sufficiently effective. It is the responsibility of all countries implicated throughout the process of trafficking to support the countries of origin to change the situation.

Together with the improvement of labour and other laws, it is important that trafficking cases are identified as such and are dealt under the relevant article of criminal legislation. Many COATNET partners report that it is very difficult to identify or prove incidents as human trafficking, especially for labour exploitation, using the current definition of trafficking. There is a lack of practical commentaries on how severe the exploitation should be in order to qualify for trafficking, what forms of constraint, coercion and vulnerability can indicate trafficking cases, and so forth. The situation is also aggravated by the fact that many people trafficked for labour purposes do not recognise themselves as trafficking victims [9] .


At this point, it is important to ask whether the international community take appropriate measures aimed at prevention and combating trafficking in persons and support its victims, and whether the steps taken are adequate to the challenges that we face?

Representatives of the judiciary, international organizations and NGOs, academic staff i all those who in their pracy have to deal with victims of trafficking in human beings agree są, co to the fact that although much has been done is jest niezbędna work continuously to reinforce the existing mechanizmu used to combat this crime. The key change in approach to the problem of trafficking in persons is to treat this issue in the category of human rights violations. What is needed is strong protection of trafficking victims - legal assistance, medical, social and psychological. Increase training for staff in the judiciary, law-border workers but also the diplomatic service. Is much more important to recognize the phenomenon and thus organize the methods of statistics related to trafficking in human beings and their efficient exchange of national and international levels. A permanent cooperation between state institutions and NGOs. It is appropriate to increase due to new means of recruitment of victims, which is the Internet.

Multidisciplinary and effectively coordinated anti-trafficking policies have played and will play an important role in the future perspective (both in the short-term and in the long-term). Therefore, countering human trafficking can be successful only by designing and imple-menting proactive measures from both human security approaches, which cannot be pursued in isolation [10] .

To reduce the number people trafficked worldwide governments, nongovernmental organizations (NGOs), and others are tackling some of the root factors that encourage the practice. Poverty, unemployment, and lack of education and access to resources are driving forces as people take risks to improve their living conditions.

To improve the treatment of those who have been trafficked, efforts are being made to train law enforcement, immigration agents, attorneys, and others to identify and assist trafficked persons. Increasingly, governments are working to strengthen law enforcement and effective sentencing of traffickers. This includes national, regional, and international efforts to prosecute organized crime groups and others that profit from global trafficking [11] .