1.3.1 Research Objectives
This thesis sets out to investigate one overarching question: whether the
international legal framework applicable to human trafficking is appropriate to deal with the modern-day phenomenon of trafficking in its various occurrences.
This thesis’s research question is also motivated by the following questions:
‘where is justice?’; ‘[b]ut there is one thing I couldn't understand. What had happened to us? How did we start selling our own girls? How did we make profit from deceit and violence?’ 162 In seeking to answer the research question, this thesis proceeds in five steps (chapters) and directs its focus on some major central challenges detailed in the following paragraphs.
In the first chapter, this thesis gave a background of human trafficking, as it currently exists as a complex, confusing modern-day phenomenon.
In the second chapter, this thesis will look at the international legal framework applicable to human trafficking. This chapter initially traces the genesis of an applicable legal framework by looking at the emergence and development of human trafficking as a concept of public international law. Later, it considers a set of issues and contemporary incidents linked to them in order to decide whether the international legal rules are appropriate to deal with new challenges.
On this basis, in the third chapter, this thesis looks at definitional issues around human trafficking as a central challenge. Even though international law defined human trafficking in 2000 under the Trafficking Protocol, its definition has not resolved the many definitional debates in terms of distinguishing ‘trafficking’
from related phenomena, particularly ‘slavery’ and ‘migrant smuggling’.163 This analysis aims to look at the definitional quagmire pertaining to human
162 UN Meetings Coverage & Press Releases, ‘Security Council Condemns Human Trafficking in Strongest Terms, Unanimously Adopting Resolution 2331 (2016)’ (20 December 2016)
<http://www.un.org/press/en/2016/sc12647.doc.htm> accessed 24 April 2017.
See also Jonathan Todres, ‘Moving Upstream: The Merits of a Public Health Law Approach to Human Trafficking’ (2011) 89(2) North Carolina Law Review 447.
163 Liz Kelly, Fertile Fields: Trafficking in Persons in Central Asia (International Organization for Migration, 2005), 69.
1 Introduction 30 trafficking,164 and to demonstrate how international law deals with the complex social phenomena involved, while considering contemporary challenges. In order to achieve this objective, this chapter seeks to address the following topics: how scholars, media and international judgements interpret international law
definitions of trafficking, slavery and smuggling, particularly considering the resemblance between these acts. In other words, we seek to examine how the law deals with disentangling the phenomena of slavery and smuggling in
comparison to trafficking, and whether it is done in a satisfactory way.
The reason for building the initial analysis on these three steps – anatomy of human trafficking, setting forth the legal framework of human trafficking and definitional analysis – is to discuss another major issue pertaining to trafficking in the next chapter, as the fourth step: the obligation of protection, which mainly looks at the importance of identification and non-criminalisation of trafficked victims. As will be discussed in regards to the definitional analysis of human trafficking, without defining such incidents, e.g., whether they
constitute trafficking, slavery or smuggling, we cannot really know who is trafficked and who the victims are in need of protection. Initially, this chapter investigates whether any absolute profile of victims exists, especially
considering human trafficking as a crime difficult to pin down.165 It is a possibility to be avoided that victims are further hurt/victimised by certain misconceptions and thought practices around the concept of trafficking whereby people/institutions blame them for being trafficked, or for particular things they did/had to do while they were being trafficked. This stresses the idea of a
doubled suffering, or compounded suffering, where the suffering of being trafficked is made worse/more complicated by the suffering caused by people's perceptions of or reactions to that crime/suffering.166 Next, this chapter looks at the international legal rules to understand how/whether international law has been developed in ways that identify victims of human trafficking. Indeed, what matters to victims is not whether what they have gone through constitutes
164 ILO, ‘Discussing The Legal Definitions of Human Trafficking, Forced Labour and Slavery’ (A Discussion by Jean Allain, Anne Gallagher, Babu Mathew & Thiago Gurjao Alves Ribeiro, 8 July 2014) <https://www.youtube.com/watch?v=4p8zLlhea1Y> accessed 19 October 2016.
See also Jean Allain, ‘No Effective Trafficking Definition Exists: Domestic Implementation of the Palermo Protocol’ (2014) 7(1) Albany Government Law Review 112.
165 Connor J Baer, ‘A Firm Foundation a Defence of the UN Trafficking Protocol’ (2012) 3 Grove City College Journal of Law & Public Policy 103, at 111.
166 Luis CdeBaca, ‘Successes and Failures in International Human Trafficking Law’ (2011) 33 Michigan Journal International Law 37, at 39.
1 Introduction 31 slavery, trafficking or falls under another legal description or label. No matter how trafficking is regulated under international law, traffickers are in it for money,167 and victims are there to be exploited: ‘they just happen to be human beings’.168 Yet, as mentioned above, it remains essential to identify such
practices, i.e., whether they constitute trafficking, in order to better assist and protect victims, because in each case ‘the difference in terms of entitlements owned to the trafficked individual’ would be substantial.169 Case in point, in order to refer a person to a shelter, the police must be convinced that the evidence suggests that the person is a human trafficking victim.170 Besides, in cases of being referred to a shelter, ‘the statement of [human trafficking] victim is (…) the primary evidence to prove the guilt of the offender.’171 Thus, states have to train their personnel to identify human trafficking victims in such a way as to not make any woman ‘fallen’ nor any man ‘illegal’, by recognising each individual’s inalienable rights.172 Linked to the issue of victim identification is the fact that many victims may be ‘assumed’ to be criminals first and foremost, such as prostitutes, beggars, thieves and so on. In these cases, this belief may be instilled by traffickers who tell their victims that authorities will charge them, are corrupt and not to be trusted.173 Thus, victims are often told they will be arrested and either sent back or prosecuted if they are discovered.174 Victims may fear being prosecuted for illegal entry or for offences, they may have been forced to commit.175 Yet the fact is that victims of human trafficking are mostly
‘forced’ to violate the law rather than making an active choice, whether such crime is committing pickpocketing, theft, credit card and cheque fraud,
167 Ryszard Piotrowicz, ‘THB in 2016 – Where are we, where have we been and where are we going?’ (Keynote Speech, TRACE Workshop, 2016) <http://trace-project.eu/wp-
content/uploads/2016/03/TRACE-Stockholm_Piotrowicz.pdf> accessed 28 March 2017.
168 ibid.
169 Anne T Gallagher, The International Law of Human Trafficking (1st published, Cambridge University Press, 2010), 278.
170 Daphna Hacker & Orna Cohen, ‘The Shelters in Israel for Survivors of Human Trafficking’
(2012) Research Report, 58 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2070787>
accessed 6 July 2016.
171 Annette Herz, ‘Human Trafficking and Police Investigations’ in Winterdyk & Perrin & Reichel (eds), Human Trafficking Exploring the International Nature, Concerns, and Complexities (n 6), 133.
172 CdeBaca (n 166) 41.
173 UNODC – UN GIFT, ‘Anti-Human Trafficking Manual For Criminal Justice Practitioners - Module 4: Control Methods in Trafficking in Persons’ (New York, UN, 2009), 4
<https://www.unodc.org/documents/human-trafficking/TIP_module4_Ebook.pdf> accessed 19 April 2017.
174 The Anti Trafficking Monitoring Group, In The Dock. Examining the UK’s Criminal Justice Response to Trafficking (Anti-Slavery International for The Anti-Trafficking Monitoring Group, 2013).
175 ibid 4.
1 Introduction 32 transporting drugs, or prostitution.176 In such cases of status-related offences, it is important not to hold victims criminally responsible, only then can re-
victimisation of trafficked persons be prevented and available protection given to them. Since the issues of identification and non-criminalisation of human trafficking victims are interrelated as central challenges of the obligation of protection, this chapter conducts its analyses around these two major subjects.
This thesis employs an approach of unfolding sequential layers pertaining to three major issues, namely the definitional quagmire and the identification and non-criminalisation of victims of human trafficking in the context of the
obligation of protection. The aim is to conclude its analysis on international law around human trafficking in the last chapter, as the fifth step. The final chapter considers alignment of international human trafficking law and asks whether, based on the findings, international law around human trafficking is adequate for facing modern-day challenges. It also sets forth where current approaches are/are not in alignment with international law and what could/should be done to improve the situation.
1.3.2 Thesis Methodology
This thesis, in order to address the issues detailed above and resolve the ensuing research questions, adopts a methodology which includes:
A critical analysis of the current international legal rules pertaining to human trafficking;
A desk review of relevant literature, including scholars’ approaches and international jurisprudence in relation to human trafficking;
A survey of significant ongoing issues affecting human trafficking practices.
The thesis represents a legal analysis on human trafficking, employing
comparative and socio-legal methods, and considering both law and practice as necessary.
176 See UNODC – UN GIFT, ‘Anti-Human Trafficking Manual for Criminal Justice Practitioners - Module 4: Control Methods in Trafficking in Persons’ (n 173).
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