Human trafficking

Trafficking in human beings means taking advantage of another person's personal or economic vulnerability or helplessness in order to exploit him or her for specific purposes, such as forced prostitution or other forced activities.

Until the second half of the 19th century, the term referred to the trade in slaves. With the abolition of slavery, social modernisation processes as a result of urbanisation and, above all, the development of steam navigation, trafficking in women, which had always existed in a wide variety of forms, spread internationally and intercontinental from this time onwards. Initially still regarded as a side effect of prostitution, from the beginning of the 19th century several international agreements were adopted against it, which, in addition to trafficking in women and girls, in part already addressed the concept of trafficking in human beings. With the beginning of the 21st century, further agreements followed in which the term was emphasized more explicitly.

Although the phenomenon was initially referred to synonymously as "white" and later as "modern slavery" (mainly by the US sociologist Kevin Bales), the EU Charter of Fundamental Rights of 2000 explicitly distinguished slavery from trafficking in human beings, together with servitude and illegal forced and compulsory labour. As the International Criminal Tribunal for the former Yugoslavia referred to all four terms as an evolution of the traditional concept of slavery just two years later, the transitions between the terms can be considered fluid. Human trafficking is to be distinguished from human smuggling, as human smuggling is merely the assistance in crossing borders.

Human trafficking has become one of the manifestations of organised crime. It is a global phenomenon at the crossroads of criminal law, migration policy and human rights violations.

There are no reliable figures on the extent of national and international human trafficking because of the many different forms it takes, different survey methods and a large number of unreported cases. A UN report from 2014 documents 40,177 examples from 152 countries worldwide. According to this report, one third of the victims of human trafficking are minors. The victims come mainly from Africa, South and East Asia as well as Eastern Europe and are trafficked to Western Europe, North America and the Arabian Peninsula, 70 % of the victims are women, and very few perpetrators are convicted.

In 2012, the International Labour Organization (ILO) estimated that there were over 20 million people in forced labour worldwide.

International conventions

United Nations

Convention for the Suppression of the Traffic in Persons (1949)

Trafficking in human beings was initially addressed as a concomitant of prostitution in international social and criminal policy.

Between 1904 and 1933, a total of four international conventions against trafficking in girls were adopted. None of these conventions provided a precise definition of what should be considered trafficking in women, although they all dealt with more or less forced forms of transnational mobility of women and girls for the purpose of more or less voluntary sexual labour.

While the first two conventions still contained the concept of "white slavery" (white slave traffic), the more neutral concept of trafficking in women and children was adopted when the League of Nations took over the subject complex and in the context of the adoption of another convention in 1921. In 1933, another convention was adopted which dealt for the first time with forced prostitution and trafficking in women of full age. Trafficking in women was to be understood as the transnational procuring and transfer of women "to gratify the immorality of another" (gratify the passions of another).

In 1949, the United Nations General Assembly adopted the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. This can be traced back to the increasingly transnational efforts of the so-called abolitionist movement against state-regulated prostitution on the one hand, and to the international legalization processes in the context of combating trafficking in women and girls since the end of the 19th century on the other. The 1949 Convention was intended to bring together the conventions that had been adopted up to that time and to take into account not only the policing aspects, but also the view of prostitution as a social problem that had become widespread in the post-war period. It criminalized third parties such as pimps, matchmakers and traffickers, prohibited discrimination against prostitutes through state licensing and monitoring systems, and provided for prevention programs as well as measures for social rehabilitation when prostitution was abandoned.

The UN Commission on Human Rights established the Working Group on Slavery in 1974. The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979 contains, among other things, the abolition of all forms of trafficking in women and the exploitation of prostitution of women. Since the 1970s, this has been accompanied by an increasing commitment on the part of self-help organizations, such as the International Committee for Prostitutes Rights (ICPR), to decriminalize prostitution and to recognize it as gainful employment that is socially and legally equivalent to other activities.

Additional Protocol on Trafficking in Human Beings to the Palermo Convention (2000)

The Convention against Transnational Organized Crime of 15 November 2000 (United Nations Convention against Transnational Organized Crime and the Protocols Thereto - UNTOC, "Palermo Convention") aims at international cooperation to prevent and combat transnational organized crime more effectively.

In Annex II, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children was also adopted. It claims to be the only universally applicable convention that covers not only sexual exploitation but also all other aspects of trafficking in human beings, such as labour exploitation, the illegal removal of organs, servitude or practices similar to slavery. It pays special attention to women and children as the main victims of trafficking. The acts explicitly mentioned by the Optional Protocol are the recruitment, transportation, harbouring and receipt of persons. The means of committing the offence are the threat or use of force, various forms of coercion (e.g. kidnapping), fraudulent deception, fraud (Germany), abuse of power, influence or leverage, exploitation of a relationship of dependency and/or bribery of the holder of the power.

The Convention contains measures to prevent and combat trafficking in persons, in particular women and children, comprehensive international action in countries of origin, transit and destination, measures to prevent such trafficking and to punish traffickers and protect the victims of such trafficking, notably by protecting their internationally recognised human rights.

However, as is characteristic of international law as soft law, it is merely a non-binding voluntary commitment by the signatory states.

Council of Europe

Recalling the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Council of Europe adopted the Convention on Action against Trafficking in Human Beings on 16 May 2005.

It improves the conditions for combating trafficking in human beings, particularly in the European area. In addition to the approximation of criminal offences and efficient prosecution, including across borders, it provides for special protection for victims and witnesses. It creates the conditions for sustainable measures by the individual States Parties and for closer European cooperation on the basis of the definition and further development of the obligations of the States Parties set out in the Additional Protocol on Trafficking in Human Beings to the Palermo Convention.

The Federal Republic of Germany approved the Convention by law of 12 October 2012. The Convention entered into force in Germany on 1 April 2013.

The Group of Experts on Action against Trafficking in Human Beings (GRETA) monitors the implementation of the Convention by the Parties in accordance with Art. 36 et seq. In June 2015, the report on the implementation of the Convention by Germany was submitted for the first evaluation cycle, in October 2015 for Austria and Switzerland.

European Union

The European Union has addressed the issue of preventing and combating trafficking in human beings and protecting the rights of victims, in particular through Council Framework Decision 002/629/JHA of 19 July 2002 on combating trafficking in human beings and the 2005 EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings.

The EU Trafficking in Human Beings Directive of 2011 is the most recent international legal document and provides for an integrated, holistic and human rights-based approach to combating trafficking in human beings. The Directive was transposed into German law by the Act to Improve the Fight against Trafficking in Human Beings and to Amend the Federal Central Register Act and the Eighth Book of the Social Code of 11 October 2016 (MenHBVG), which entered into force on 15 October 2016.

Definition

Legal definition

Annex II to the Palermo Convention defines "trafficking in persons" in Article 3(a) as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, as 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 of the body.

This definition is followed by other international legal documents such as Art. 4 of the 2005 Council of Europe Convention or Art. 2 of the 2011 EU Trafficking in Human Beings Directive.

Art. 5 para. 3 of the EU Charter of Fundamental Rights (GrCH) prohibits trafficking in human beings and distinguishes it from slavery and servitude (Art. 5 para. 1 GrCH) and forced or compulsory labour (Art. 5 para. 2 GrCH).

Case law of the European Court of Human Rights

In 2010, the ECtHR ruled by interpretation "in the light of contemporary circumstances" that trafficking in human beings, as defined by the Palermo Protocol and the Council of Europe Convention, falls within the scope of Article 4 ECHR, although trafficking in human beings is not explicitly mentioned there.

The lack of an explicit mention of trafficking in human beings in the ECHR is not surprising, as it was inspired by the Universal Declaration of Human Rights of 1948, Article 4 of which prohibits "slavery and the slave trade". Trafficking in human beings as a global phenomenon had increased significantly since then. In assessing the scope of application of Art. 4 ECHR, one should not lose sight of the special characteristics of the ECHR as a treaty for the protection of human rights, nor of the fact that it is a living instrument that must be interpreted in the light of current conditions.

The International Criminal Tribunal for the former Yugoslavia had already held in 2002 that the traditional concept of slavery had evolved to encompass various forms of enslavement based on the exercise of those powers that go hand in hand with the property rights over other human beings that are typical of slavery. In view of the spread of both trafficking itself and the measures to combat it, the ECtHR considered it appropriate to examine the extent to which trafficking as such was contrary to the meaning and purpose of Article 4 ECHR and thus fell within the scope of that provision, without having to examine which of the three prohibited categories of slavery, servitude or forced and compulsory labour was affected by the specific treatment in the present case.

Because of its aim of exploitation, trafficking in human beings is based on the exercise of powers related to property rights. It treats people as objects to be bought and sold and forced to work, mostly in the sex industry. It presupposes close monitoring of the activities of victims, whose freedom of movement is often restricted. It entails the use of violence and threats against the victims, who live and work in poor conditions. There can therefore be no doubt that trafficking in human beings threatens the human dignity and fundamental freedoms of its victims and is incompatible with a democratic society and the values of the ECHR.