Background and purpose
Trafficking in persons is a serious crime that affects every country in the world. Conflicts that arise in countries or other geographical areas can exacerbate vulnerability to trafficking, as well as its prevalence and severity. As State and non-State structures weaken, and as people turn to negative coping strategies in order to survive, not only does the risk of falling victim to trafficking increase, but so too does the risk of perpetrating it against others. At the same time, conflict also increases the demand for goods and services provided by exploited persons and creates new demands for exploitative combat and support roles. For these reasons, United Nations entities and other international actors active in settings affected by conflict have a crucial role to play in preventing and countering trafficking in persons.
Definition and elements of trafficking in persons
Trafficking in persons is addressed in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol). The Protocol provides a comprehensive framework for cooperation between States parties and sets out minimum standards for victim protection to complement the wider framework of international law, including international human rights law. The Protocol requires States parties to criminalize the offence of trafficking as defined in its article 3(a).
That definition comprises three elements:
(a) An “act” (recruitment, transportation, transfer, harbouring or receipt of persons);
(b) A “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, or the giving or receiving of payments or benefits to achieve consent of a person having control over another person);
(c) A “purpose” of exploitation, regardless of what type.
The “means” element is not a requisite for the definition of trafficking in persons when the victim is a child; any act committed for an exploitative purpose is sufficient to establish the trafficking of a child as an offence.
Even though the forms of exploitation that occur in settings affected by conflict may also occur in other contexts, conditions of conflict are often more likely to engender such exploitation or to exacerbate its prevalence and severity. Some forms of exploitation, identified through research on exploitative practices in conflict settings, have emerged as specific to the context of conflict, including but not limited to the following:
- Sexual exploitation of women and girls by members of armed and terrorist groups
- Use of trafficked children as soldier
- Removal of organs to treat wounded fighters or finance war
- Enslavement as a tactic of terrorism, including its use to suppress ethnic minorities
Consent of the victim to exploitation is irrelevant in cases where any of the means have been used in relation to an adult victim, and is always irrelevant where the victim is a child.
Six keys to understanding trafficking in persons
1. Trafficking does not necessarily involve a person being taken across a border. A person can be trafficked within a single country or region.
2. There is no single profile of a victim of trafficking. Victims of trafficking can be rich or poor, men, women, children, lesbian, gay, bisexual, transgender or intersex, migrants in regular or irregular situations or asylum seekers.
3. There is no single profile of a human trafficker. Traffickers can be members of organized criminal groups, or friends or family members of the victim.
4. Trafficking can be for any exploitative purpose, including for sexual, labour, criminal, combat or other exploitative purposes.
5. Not all people who are exploited are victims of trafficking. Persons who are exploited are only considered victims of trafficking if acts and means have been used to exploit them (or only acts, in the case of children).
6. A person can consent to being exploited, but still be considered as a victim of trafficking. The use of “means” to obtain a person’s consent makes the consent irrelevant; in cases where the victim is a child, consent is always irrelevant.
Linkages between trafficking in persons, human rights abuses and other phenomena
Many United Nations actors do not have a specific mandate to address trafficking in persons. However, there may be linkages between trafficking in persons and other crimes or situations that they do have a mandate to address. A better understanding of trafficking and its intersection with these other phenomena can support the integration of responses to trafficking in persons into existing mandates.
Smuggling of migrants is defined in article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational
Organized Crime (Smuggling of Migrants Protocol), as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” Trafficking in persons and the smuggling of migrants are often confused, although they are distinct crimes comprising unique elements.
Trafficking in persons versus smuggling of migrants: differences
• Geographical. Trafficking may occur entirely within a single country, whereas smuggling involves crossing international borders.
• Purpose. Trafficking is perpetrated for exploitation, whereas smuggling is perpetrated for profit (termed “financial or material benefit”).
• Consent. Victims of trafficking may consent to the trafficking act or to their exploitation, but consent is irrelevant if one of the means has been used (and in all cases where the victim is a child, as means need not be established). Consent is not an element of the smuggling crime; in practice, smuggled migrants may consent to being smuggled but may retract their consent at a later stage, yet still be forced onwards.
• Exploitation. Exploitation is the purpose (intention) of trafficking, but is not an element of the smuggling offence. Smugglers may exploit migrants, in which case the smuggling offence is aggravated.
• Profit. Profit is not an element of trafficking, but traffickers almost always profit from the exploitation of their victims. Profit (financial or material benefit) is the required element and sole purpose of smuggling a person across an international border.
• Victimhood. The victim of trafficking is an individual person, whereas the victim of smuggling is the State, at the moment its border is unlawfully crossed in the course of the smuggling. However, smuggled migrants may be victims of other crimes at the hands of smugglers, including violent crimes.
• Perpetrator. Traffickers may be members of organized criminal groups, the victim’s own family members or friends, or others whose intent is to exploit the victim. Smugglers may be members of organized criminal groups, the migrant’s own family members or friends, or others, but are only considered smugglers when they act for financial or material benefit.
In practice, what looks like a situation of smuggling of migrants may prove on closer examination to be a situation of trafficking in persons. For instance, a person may believe that he or she has paid a smuggler in order to reach safety or to find decent work elsewhere, but instead ends up in a situation of exploitation as the smuggler also traffics him or her or passes him or her on to someone else for that purpose.
Conflict exacerbates the smuggling of migrants, as people in situations of conflict are increasingly forced to turn to smugglers for safe, alternative channels by which to flee from conflict and seek safety or asylum. Those who seek to join armed or terrorist groups may also engage the services of smugglers to facilitate their movement into conflict areas.
Atrocity crimes comprise war crimes, crimes against humanity and genocide. These are serious international crimes that States are obliged to prevent and that fall within the jurisdiction of the International Criminal Court. Certain acts committed in the context of trafficking may potentially reach a level of gravity characteristic of atrocity crimes.
War crimes can be understood as violations of international humanitarian law for which perpetrators bear individual criminal responsibility under international law. Certain acts or offences associated with trafficking in the context of armed conflict may constitute war crimes.
Crimes against humanity include acts of murder, extermination, enslavement, deportation or forcible transfer, imprisonment or severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy and other forms of sexual violence of comparable gravity.
Trafficking in persons, where it is committed as part of a widespread or systematic attack directed against a civilian population, may amount to a crime against humanity.
Genocide is a crime committed against members of a national, ethnic, racial or religious group targeted because of their membership of that group. Some acts associated with conflict-related trafficking in persons (such as the sexual enslavement of members of particular ethnic minority groups) may in some extreme situations constitute genocide.
Conflict-related sexual violence includes rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, forced sterilization, forced marriage, forced temporary marriage and any other form of sexual violence against women, men, girls or boys that is directly or indirectly linked to a conflict. That link may be evident in the profile of the perpetrator, the profile of the victim, the climate of impunity precipitated by the collapse of rule of law or the State, cross-border consequences, and/or violations of provisions of a ceasefire agreement.
Conflict-related sexual violence may be used as a tactic of war or terrorism, and can constitute a war crime, a crime against humanity or an act of genocide. Conflict-related sexual violence may occur in the context of trafficking in persons or entail trafficking for purposes of sexual exploitation. For instance, internally displaced refugee women and girls in areas controlled by armed or terrorist groups are particularly vulnerable to sexual violence, including in the context of sexual slavery. Local populations may be trafficked for the purpose of sexual exploitation by armed and non-armed groups. Demand for sexual abuse against men and boys can also increase in conflict.
Six grave violations against children in armed conflict have been identified in a number of Security Council resolutions and include the killing and maiming of children, the recruitment and use of children by armed forces and armed groups, rape and other forms of sexual violence against children, attacks against schools or hospitals, abduction of children and denial of humanitarian access for children. Except for denial of humanitarian access, these violations trigger the listing of parties to armed conflicts in the annexes to the annual report of the Secretary-General on children and armed conflict. Furthermore, grave violations fall under the monitoring and reporting mechanism on grave violations against children in situations of armed conflict. Trafficking in persons is not one of the six grave violations, but acts constituting grave violations may also amount to trafficking in persons.
Relationship between “grave violations” and trafficking in children
• Killing and maiming of children can occur as a result of children being trafficked into armed conflicts as combatants, human shields, suicide bombers or in supportive roles.
• Recruitment and use of children by armed forces and armed groups can constitute trafficking in persons, being an act (recruitment) carried out for the purpose of exploitation (use in armed conflict).
• Rape and other forms of sexual violence against children can result when children are trafficked for the purpose of forced, temporary or child marriage, sexual slavery or other forms of sexual exploitation.
• Attacks against schools or hospitals can occur in the context of trafficking when the objective is to abduct and exploit children.
• Abduction of children can constitute trafficking where abduction is found to include exploitation, whether for sexual, combative, terrorist or other purposes.
• Denial of humanitarian access for children may involve trafficking, for instance, where a child is denied humanitarian access because he or she is in a trafficking situation.
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