The Concept of ‘Harbouring’ in the Trafficking in Persons Protocol

The Concept of ‘Harbouring’ in the Trafficking in Persons Protocol

The Concept of ‘Harbouring’ in the Trafficking in Persons Protocol

This Issue Paper examines the concept of ‘harbouring’ in the United Nations 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’). Article 3(a) of the Protocol defines trafficking as constituting three elements: an act element, a means element (by which the act is achieved), and a purpose element of exploitation. Where any of the stipulated means are present (or where the trafficked person is a child) any consent of a victim of trafficking to their exploitation is irrelevant.

While the Trafficking in Persons Protocol enjoys wide acceptance by the international community, uncertainty over certain aspects of the definition of trafficking persists. Clarity regarding what is, and equally what is not, trafficking is significant for a range of reasons. Characterising conduct as ‘trafficking’ has implications for who may be prosecuted as a trafficker, who is identified as a victim, and for States’ broader understanding of the nature and extent of trafficking in their jurisdictions. The importance of a clear international definition of trafficking in persons is recognised by States Parties to the Protocol.

Analysis of the concept of ‘harbouring’ is important for a number of reasons, not least because there is little guidance in the Protocol or interpretative materials concerning its meaning and application. As this Paper shows, this lack of clarity has implications for how harbouring is understood, particularly at the national level and across different languages. In this context, this Paperexamines how and to what extent the meaning of ‘harbouring’ differs across languages, as well as its relationship with the other act elements in the trafficking definition. It further explores questions regarding the scope of ‘harbouring’, including whether it requires concealment or simply accommodation of victims, whether a victim must be harboured for a minimum period of time, and whether there is a requirement of ‘substantiveness’ to a place of harbouring. This paper also addresses the role of ‘harbouring’ in obviating the need for movement as a component of trafficking.

All Issue Papers to date have adopted a broadly similar methodology, including (1) a desk review of literature, legislation, and case law; (2) a survey of the laws and case law of selected States representing different regions and legal traditions including interviews with practitioners; (3) preparation of a draft paper; (4) review of the draft paper at an expert group meeting; and (5) finalisation of the Issue paper and any additional material. Though this Issue Paper follows this methodology, some aspects were modified due to the impact of COVID-19.

This Issue paper comprises six parts. Part 1 explains the background and context of this Paper. Part 2 explores the ordinary meaning of ‘harbouring’, interpretation in various languageversions of the Protocol, relevant international legal and policy materials, and case law concerning the meaning of ‘harbouring’. Part 3 of this Issue Paper looks at terms used in domestic laws to cover the act of ‘harbouring’ in trafficking legislation, based on examination of some 100 jurisdictions. Part 4 analyses contexts relevant to acts of ‘harbouring’. It sets out illustrative case examples of harbouring drawn from a range of jurisdictions and makes observations regarding the scope of the concept. Part 5 sets out national laws, policies, and practice concerning the act of ‘harbouring’ in the 10 States formally surveyed. Part 6 identifies key findings from the examination of national law and practice in Part 5, in combination with observations drawn from Parts 2, 3, and 4.

The following conclusions emerge from the analysis of this paper in Parts 2 through 4 of this Paper.

The understanding of ‘harbouring’ varies across different languages. The second edition of the Legislative Guide for the Trafficking in Persons Protocol notes that ‘harbouring’ may be understood differently in different jurisdictions. In English, ‘harbouring’ broadly refers to the sheltering of persons, but may also attract negative connotations (including an element of concealment) as a result of the word’s commonly dyslogistic meaning. The French word ‘hébergement’ (or the verb form ‘héberger’) means accommodation or to provide with a house or shelter. The Spanish word ‘acogida’ means ‘to take in’ or ‘shelter’ someone, as does the Arabic word مھؤاویإ . These words have broadly positive meanings and eschew any dyslogistic connotations. The Russian word ‘укрывательство’, on the other hand, translates more closely to ‘conceal’ or ‘hide’. The Chinese term ‘窝藏’ appears to bear the closest meaning to ‘harbouring’ in English, combining words meaning ‘shelter’ and ‘conceal’. The different (and sometimes multifaceted) meanings of ‘harbouring’ across the Arabic, Chinese, English, French, Russian, and Spanish versions of the Protocol indicate that States Parties have a degree of latitude in how the act element of ‘harbouring’ is implemented in national legislation. They also explain the variety of approaches taken to this act element at the domestic level.

There is little attention to the concept in international law and policy. It is clear that ‘harbouring’ is an act element in the definition of trafficking, and thus requires proof of physical conduct.Like the other act elements, the term was not subject to substantive discussion during drafting of the Trafficking in Persons Protocol and interpretive materials have since given it limited attention. Academic and judicial commentary on the meaning and application of ‘harbouring’ is also scant. Nonetheless, the leading view is that ‘harbouring’ in the Protocol is a flexible concept that should be afforded its ordinary meaning of providing accommodation or shelter. It can also encompass, but is not restricted to, the concealing or holding of persons. Importantly, the ordinary meaning of ‘harbouring’ does not limit the types or character of places in which victims can be harboured, nor is there any need for the condition of the place of harbouring to be poor, inhumane, degrading, or exploitative in and of itself. It should be stressed that it is only the combination of harbouring with the purpose and means elements (and only the purpose element for children) that makes the act of harbouring trafficking.

There are a wide range of approaches to ‘harbouring’ in national trafficking legislation. Broadly, these approaches can be summarised as follows:

1) English-language States that only use the English word ‘harbouring’.

2) Other-language States that only use a word that closely translates to ‘harbouring’.

3) English-language States that use the English word ‘harbouring’ in combination with other words, including, inter alia, ‘conceal’, ‘hold’, and ‘maintain’.

4) Other-language States that only use words meaning ‘accommodate’, ‘shelter’, ‘lodge’ or ‘house’ in their respective languages.

5) Other-language States that use the words ‘accommodate’, ‘shelter’, ‘lodge’ or ‘house’ in combination with words meaning ‘concealment’ or ‘detain’ in their respective languages.

6) Other-language States that only use words meaning ‘concealment’.

7) Other-language States that only use words meaning ‘detain’.

8) States that do not use ‘harbouring’ or any equivalent act element.

In addition, ‘harbouring’ and similar terms are very rarely defined in national legislation.

In practice, ‘harbouring’ may occur in one of three general scenarios. These are, first, where the victim is harboured prior to exploitation and where harbouring is not the sole act; second, where the victim is harboured during exploitation itself, following recruitment, transportation, transfer, or receipt into the situation of exploitation; and, third, where harbouring occurs during or prior to exploitation, absent any other trafficking acts. In the third scenario, harbouring is the sole ‘act’ of trafficking and a person may become a victim of trafficking without any movement. On this point, the Working Group on Trafficking in Persons has stated that trafficking does not require any transportation or transit of victims. It may be noted that, while the majority of trafficking cases will include an act or acts of harbouring, some foreseeably may not.

Harbouring may be linked to any ‘means’ element and any ‘purpose’ of exploitation. While any ‘means’ may be used to carry out harbouring, in practice harbouring is commonly linked to some restriction of the victim’s liberty, which acts to keep them in the place of ‘harbouring’ for the purpose of exploitation. It is difficult to conceive of an exploitative purpose that could not entail the harbouring of a victim.

The survey of national law and practice in Part 5confirms that ‘harbouring’ is a non-technical and flexible term defined according to its ordinary meaning. It further confirmed that the minimal attention afforded to ‘harbouring’ in international law and policy is reflected at the national level, and that it may be interpreted differently in different languages and jurisdictions. The following major points crystallise from the findings of the survey.

Harbouring can take place at any stage of a trafficking process, either before or during exploitation of the victim. In practice, however, acts of harbouring are more commonly prosecuted where they occur concurrently with exploitation itself. This is reflected in the available case law. This appears to be because, first, trafficking is more often discovered once exploitation has occurred and, second, it is (as a matter of evidence) difficult to prove that a harbourer had an exploitative purpose prior to exploitation occurring.

The act of ‘harbouring’ does not necessarily require the physical presence of the harbourer. It is sufficient that the trafficker exerts control over the place of harbouring, such as where a trafficker owns, but is not on, a fishing vessel where exploitation takes places (and knows this). It should be noted that, in contrast, the question ofcontrol over the victim at the place of harbouring, whether or not the trafficker is physicallypresent, is referable to the means element.

There is very little judicial consideration of the meaning of ‘harbouring’ in reported case law. The act elements, including ‘harbouring’, are very rarely a focus of the jurisprudence on trafficking in any of the countries surveyed. Other issues, particularly the existence (or not) of the means element and proof of the exploitative purpose, are more commonly discussed in judicial decisions. Very few cases examining the meaning or application of ‘harbouring’ were located; those that did consistently accorded the word its ordinary meaningin the relevant language.

There is inconsistency across jurisdictions as to whether harbouring must occur for a minimum time. In some jurisdictions, harbouring requires the victim to stay at a place for a substantial time period. This period is not specified, though may be taken to be a ‘longer sojourn’ or at least enough time to sleep in a place. In other jurisdictions, there is no minimum period in which a victim of trafficking can be harboured.

Some jurisdictions require a minimum ‘substantiveness’ to the place of harbouring. In some jurisdictions, the view was expressed that a victim must actually be ‘accommodated’ (i.e. given a place where they can lodge or sleep) in order for the act of harbouring to be complete. The alternative view is that ‘harbouring’ only requires concurrence of the means and purpose elements with shelter of the victim at a particular location (even if very brief). In this case, for example, a victim may potentially be harboured in any place of exploitation, even if they are not ‘accommodated’ there. This latter interpretation of ‘harbouring’ appears more common in English-speaking jurisdictions and may be due to the fact that ‘harbouring’ (in English) is not analogous to ‘accommodation’ (in the sense of providing a person with a place to live or sleep).

The relationship between ‘harbouring’ and other act elements varies. Like ‘harbouring’, the meanings of other act elements are non-technical, flexible, and may be interpreted differently in various languages. One example is that the correlative of ‘receipt’ in French is ‘accueillir’, which also means ‘host’ and can refer to any place where the victim can be sheltered. Thus, conduct which may be ‘harbouring’ in English language jurisdictions may fall within the meaning of ‘receipt’ in French language jurisdictions. The key point is that, while the scope of individual act elements may vary in different States Parties, taken together they should cover the full range of trafficking conduct criminalised by the Trafficking in Persons Protocol.

Harbouring conduct may often be prosecuted under standalone exploitation offences or via complicity. Interviewees from most States surveyed observed that, where harbouring occurs concurrently with exploitation, standalone exploitation offences may be charged(such as forced labour or sexual exploitation offences). In many such cases, both types of offence may be applicable and it will be a matter of prosecutorial discretion as to which is charged. Similarly, and in cases involving multiple traffickers, offenders who have harboured victims may be charged via complicity. A number of interviewees noted that this may be an easier avenue of prosecution, given that it obviates the need to prove primary liability in relation to multiple separate offenders.

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