What is Wrong with Human Trafficking?: Critical Perspectives on the Law 9781509921515, 9781509921546, 9781509921539

Table of contents :
Acknowledgements
Contents
List of Contributors
1 Introduction
The Triangle of Human Trafficking
Human Trafficking and its Wrongs from Different Perspectives
References
2 Trafficking, the Anti-Slavery Project and the Making of the Modern Criminal Law
I. Introduction
II. Trafficking and the 'Anti-Slavery Project'
III. Slavery, Trafficking and Exploitation in the Criminal Law
IV. The Anti-Slavery Project and the Modern Criminal Law
References
3 Measuring Human Trafficking
I. Introduction: Images, Imagination and the Prevalence of Human Trafficking
II. Approaches to Measuring Human Trafficking
III. What is Measured and What Should be Measured?
References
4 Victims of Human Trafficking Considerations from a Crime Prevention Perspective
I. Introduction
II. The Concept of the Ideal Victim
III. Victim-Oriented Crime Prevention
References
5 Victims of Trafficking in the Migration Discourse A Conceptualisation of Particular Vulnerability
I. Introduction
II. Background
III. On the Market
IV. On Agency
V. Conclusion
References
6 Understanding Trafficking in Human Beings as Mixed Migration The European Area of Freedom, Security and Justice and its Global Width
I. Introduction
II. The Plethora of Legislation on Trafficking: Too Much or Too Little?
III. Eu Security Regulation and Mixed Migration
IV. Expressive Dimension and Obligation to Criminalise
V. National Courts and Fiduciary Obligations: When the EU Standard is not Robust Enough
VI. Conclusion
References
7 Human Trafficking Human Rights Activism and its Consequences for Criminal Law
I. Introduction
II. Broad Definitions of Human Trafficking in International Law
III. Anti-Human Trafficking Campaigns: Politics and Moral Judgements
IV. Criminalisation Theory
V. Human Trafficking: A Crime Against Persons?
VI. Human Trafficking and Collective Interests
VII. Conclusions
References
8 What Does the Trafficker Do Wrong and Towards What or Whom?
I. Introduction: Two Unnoticed Turns and one Suspicion
II. The Rechtsgut and its Carrier
III. The 'Crime Victim' and its Sub-Species: Perpetrator production and Victim Production
IV. The Human Trafficking Regulation
V. Concluding Remarks
References
9 Human Trafficking Supplying the Market for Human Exploitation
I. Introduction
II. The Law on Human Trafficking Today
III. The Nebulous Idea of 'Exploitation'
IV. Conclusion
References
10 The Wrong(s) in Human Trafficking
I. Trafficking
II. Three Cases
III. What Wrongs?
IV. Trafficking
V. Exploitation
VI. Trafficking and Policing
VII. Crime or Capitalism?
VIII. Trafficking and Immigration
IX. Conclusion
References
11 Vulnerability, Exploitation and Choice
I. Introduction
II. Elements of Human Trafficking
III. The Moral and Legal Significance of the Elements of Human Trafficking
IV. Criminalisation Principles
V. Conclusion
References
12 Limiting the Criminalisation of Human Trafficking Protection Against Exploitative Labour versus Individual Liberty and Economic Development
I. Introduction
II. Theoretical Justification for the Criminalisation of Labour Exploitation
III. Exploitation and Consent According to International Human Trafficking Instruments
IV. Exploitation and Consent According to Article 8 ICCPR and Article 4 ECHR
V. Individual and National Economic Development as a Relevant Factor
VI. Concluding Assessment: Criminalisation of Consensual, Mutually Advantageous, Exploitative Labour as Human Trafficking?
References
13 Rethinking the Model Offence From ‘Trafficking’ to ‘Modern Slavery’?
I. Introduction: an Unfortunate State of the Law
II. Where is the Harm in the Current Model Offence of 'Trafficking'?
III. Looking for a New Model Offence: The Slavery Paradigm
IV. From 'Trafficking' to 'Modern Slavery': Suggestions From a Comparative Law Perspective
V. A Proposal for a New Model Offence of 'Slavery And Modern Slavery'
VI. The Ancillary Role of the Offence of 'Trafficking in Human Beings' in the New Normative Framework
VII. Conclusion
References
Index

Citation preview

WHAT IS WRONG WITH HUMAN TRAFFICKING? The overarching objective of this volume is to discuss and critique the legal regulation of human trafficking in national and transnational context. Specifically, discussion is needed not only with regard to the historical and philosophical points of departure for any criminalisation of trafficking, but also, regarding the societal and social framework, the empirical dimension such as existing statistics in the area, and the need for more data. The book combines descriptive and normative analyses of the crime of trafficking in human beings from a cross-legal perspective. Notwithstanding the enhanced interest for human trafficking in politics, the public and the media, a critical perspective such as the one pursued herewith has so far been largely absent. Against this background, this approach allows for theoretical findings to be addressed by pointing out and elaborating different, interdisciplinary conflicts and inconsistencies in the regulation of human trafficking. The book discusses the phenomenon of human trafficking critically from various angles, giving it ‘shape’ and showing how it comes to life in the legal regulation.

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What is Wrong with Human Trafficking? Critical Perspectives on the Law

Edited by

Rita Haverkamp, Ester Herlin-Karnell and

Claes Lernestedt

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Haverkamp, Rita, 1966- editor.  |  Herlin-Karnell, Ester, editor.  |  Lernestedt, Claes, editor. Title: What is wrong with human trafficking? : critical perspectives on the law / edited by Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt. Description: Oxford, UK : Hart Publishing, 2019.  |  Includes index. Identifiers: LCCN 2018042551 (print)  |  LCCN 2018047844 (ebook)  |  ISBN 9781509921522 (Epub)  |  ISBN 9781509921515 (hardback : alk. paper) Subjects: LCSH: Human trafficking.  |  Human trafficking—Law and legislation. Classification: LCC HQ281 (ebook)  |  LCC HQ281 .W437 2019 (print)  |  DDC 345/.02551—dc23 LC record available at https://lccn.loc.gov/2018042551 ISBN: HB: 978-1-50992-151-5 ePDF: 978-1-50992-153-9 ePub: 978-1-50992-152-2 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements The chapters in this book were presented at three workshops: at Stockholm University (January 2016), VU University of Amsterdam (June 2016) and Eberhard Karls University of Tübingen (January 2017). We would like to thank all the participants for the discussions and participation. We would also like to thank Hart Publishing for their support. Thanks also go to Annika Wirz, who works for the endowed chair of crime prevention and risk management at the University of Tübingen, for her editorial support. Rita Haverkamp would like to thank Ines Hohendorf, Julia Reichenbacher and Lena Vogeler for taking care of practical matters before, during and after the Tübingen workshop. Ester Herlin-Karnell would like to thank ACCESS Europe Amsterdam and the ­University Research Chair fund at the VU University of Amsterdam for generously sponsoring the workshop held at Amsterdam on 10–11 June 2016. Claes Lernestedt would like to thank Justitierådet Edvard Cassels stiftelse for generously funding the Stockholm workshop, and Natalie Tell for taking care of – and taking command of – practical matters great and small.

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Contents Acknowledgements����������������������������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������������������������� ix 1. Introduction��������������������������������������������������������������������������������������������������������� 1 Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt 2. Trafficking, the Anti-Slavery Project and the Making of the Modern Criminal Law����������������������������������������������������������������������������������������������������� 13 Lindsay Farmer 3. Measuring Human Trafficking���������������������������������������������������������������������������� 37 Hans-Jörg Albrecht 4. Victims of Human Trafficking: Considerations from a Crime Prevention Perspective����������������������������������������������������������������������������������������� 53 Rita Haverkamp 5. Victims of Trafficking in the Migration Discourse: A Conceptualisation of Particular Vulnerability����������������������������������������������������������������������������������� 77 Elina Pirjatanniemi 6. Understanding Trafficking in Human Beings as Mixed Migration: The European Area of Freedom, Security and Justice and its Global Width���������� 99 Ester Herlin-Karnell 7. Human Trafficking: Human Rights Activism and its Consequences for Criminal Law�����������������������������������������������������������������������������������������������117 Tatjana Hörnle 8. What Does the Trafficker Do Wrong and Towards What or Whom?���������������������137 Claes Lernestedt 9. Human Trafficking: Supplying the Market for Human Exploitation��������������������159 Malcolm Thorburn 10. The Wrong(s) in Human Trafficking�������������������������������������������������������������������177 Matt Matravers 11. Vulnerability, Exploitation and Choice���������������������������������������������������������������193 Vera Bergelson

viii  Contents 12. Limiting the Criminalisation of Human Trafficking: Protection Against Exploitative Labour versus Individual Liberty and Economic Development��������217 Piet Hein van Kempen and Sjarai Lestrade 13. Rethinking the Model Offence: From ‘Trafficking’ to ‘Modern Slavery’?�������������239 Francesco Viganò Index�����������������������������������������������������������������������������������������������������������������������263

List of Contributors Hans-Jörg Albrecht is a director at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, as well as a professor faculty member at the Faculty of Law at the University of Freiburg and an honorary professor. His research interests range from topics such as sentencing theory, juvenile crime and justice, illegal drug policy, and environmental and organised crime to evaluative research on the role of criminal justice in transitional legal systems. He has authored, co-authored and edited numerous works, including volumes on sentencing, day-fines, recidivism, child abuse and neglect, drug policies and victimisation. Vera Bergelson is Professor of Law and Robert E Knowlton Scholar at the Rutgers School of Law. She specialises in criminal law theory and has written widely about consent, provocation, self-defence, necessity, duress, strict liability and victimless crime. Her book Victims’ Rights and Victims’ Wrongs: A Theory of Comparative Criminal Liability (2009) raises questions about comparative liability in criminal law. She has served as a chair of the Association of American Law Schools’ Section on Jurisprudence. She is also on the editorial boards of BdeF and Edisofer (Buenos Aires and Madrid) and Law and Philosophy. Rita Haverkamp has held the endowed Professorship of Crime Prevention and Risk Management at the Eberhard Karls University of Tübingen since 2013. She is a member of the Scientific Advisory Committee of the expert dialogue on the Dialogue on Societal Aspects of Security Research funded by the Federal Ministry of Education and Research, as well as the Research Advisory Board of the Federal Criminal Police Office. Before her professorship, she mainly focused on terrorism and security research while working as a senior researcher at the Max Planck Institute for Foreign and International Criminal Law. Ester Herlin-Karnell is Professor of EU Constitutional Law and Justice and a University Research Chair at VU University Amsterdam. She holds degrees from Oxford ­University (DPhil), King’s College London (LLM) and Stockholm University (LLM). Her recent publications include a monograph on the constitutional dimension of European criminal law (Hart Publishing, 2012). She is also the author of, inter alia, “The Constitutional Structure of Europe’s Area of Freedom, Security and Justice and the Right to ­Justification” (Hart Publishing 2019) and of the forthcoming co-edited (with M Klatt) volume “Constitutionalism Justified” (Oxford University Press 2019). Tatjana Hörnle is Professor of Criminal Law, Criminal Procedure Law, Philosophy of Law and Comparative Jurisprudence at the Humboldt University of Berlin. Previously, she held a chair at the Ruhr University Bochum. In English, she has published in, for example, the Israel Law Review, Criminal Law and Philosophy, Buffalo Criminal Law Review and New Criminal Law Review. Amongst other engagements, she is member of the scientific advisory board for the New Criminal Law Review and international advisor for Criminal Law and Philosophy. Claes Lernestedt is Professor of Criminal Law at Stockholm University. He has published four monographs (in Swedish) in the areas of criminal law, philosophy of criminal law

x  List of Contributors and legal philosophy. He has co-edited a number of volumes; the latest is Criminal Law and Cultural Diversity (2014, with Will Kymlicka and Matt Matravers). In English, he has published in, for example, Mind, Criminal Law & Philosophy and New Criminal Law Review. He is currently working on a monograph on self-defence and is co-editing (with Matt Matravers) an international volume on the criminal law’s person, which is due to be published by Hart Publishing. Sjarai Lestrade has been Assistant Professor of Criminal Law at the Erasmus School of Law in Rotterdam, since November 2017. Previously, she taught criminal law and criminal procedure law at Radboud University, Nijmegen. She wrote her PhD thesis on the criminalisation of labour exploitation (human trafficking) in the light of international human rights, anti-trafficking law and principles of criminal law. Matt Matravers is Professor of Law and Director of the Morrell Centre for Toleration at the University of York. He is the author of Justice and Punishment (2000) and Responsibility and Justice (2007). In addition, he has edited seven books, most recently Criminal Law and Cultural Diversity (2014, with Will Kymlicka and Claes Lernestedt) and The Criminal Law’s Person (forthcoming, with Claes Lernestedt). Elina Pirjatanniemi holds a Chair in Constitutional and International Law at Åbo Akademi University (AAU). She is also the Director of the Institute for Human Rights at the same university. She is an expert on human rights, as well as asylum and migration law, and on the relationship between human rights and criminal justice. Malcolm Thorburn is Associate Professor at the Faculty of Law, University of Toronto. His writing focuses on theoretical issues in and around criminal justice and constitutional theory. He is the co-editor of The Philosophical Foundations of Constitutional Law (2016) and The Dignity of Law (2015). His work has appeared in such publications as the Yale Law Journal, Boston University Law Review, University of Toronto Law Journal and many book collections. He is the book review editor of the University of Toronto Law Journal, an associate editor of New Criminal Law Review and a member of the editorial boards of Law and Philosophy and Criminal Law and Philosophy. Piet Hein van Kempen is Dean of the Faculty of Law and full Professor of Criminal Law and Criminal Procedure Law at Radboud University, Nijmegen. He is also Secretary General of the International Penal and Penitentiary Foundation and part-time Justice in the Criminal Chamber of the Appeal Court of ’s-Hertogenbosch. He specialises in the influence of international and European law, including human rights law and transnational criminal law, on the national criminal justice system. He publishes widely both in Dutch and English on a wide variety of topics. Francesco Viganò is a judge at the Italian Constitutional Court. He is also Full Professor of Criminal Law at Bocconi University, Secretary General of the Société Internationale de Défense Sociale and member of the Board of Directors of the International Institute of Higher Studies in Criminal Sciencies (ISISC). He is member of several international research projects and editor-in-chief of the online law journals Diritto penale contemporaneo and Diritto penale contemporaneo-Rivista trimestrale. His research areas include human rights and criminal law, the impact of EU and international law on criminal law, and crimes against the person.

1 Introduction RITA HAVERKAMP, ESTER HERLIN-KARNELL AND CLAES LERNESTEDT

W

hat is wrong with human trafficking? The volume addresses this delicate question, bringing together scholars from America and Europe1 to discuss diverse problems regarding and related to the legal regulation of human trafficking from a cross-legal and interdisciplinary perspective. The overarching objective is to discuss and criticise the human trafficking regulation in an (inter)national context2 embedded in a historical, criminological and philosophical framework. The volume meets a need for a discussion not only of the historical and philosophical points of departure of the criminalisation of human trafficking, but also with a critical view of the societal and social background combined with an empirical dimension such as existing estimates and statistics in the area. The volume combines descriptive and normative analysis of the offence of ‘human trafficking’. Thus, we are concerned not only with how things are dealt with, but also – and to a greater degree – with how different aspects of the so-constructed offence ought to be dealt with. The book encourages normative discussion related to the alleged reality and legal situation of human trafficking, also inviting a discussion of how to shape future regulation in this area. The Introduction outlines some significant issues as identified and discussed in the project.3 In the past decades, the phenomenon of human trafficking has been the object of increasing attention from legislators and presented as a problem that needs to be tackled at the (trans)national level. This attention has led to a comparatively large amount of (inter)national legislation, produced in a continuous and regular flow. This flow of regulation has been accompanied by flows of resources being distributed to various kinds of actors that in one way or another are engaged in ‘combating human trafficking’. One important aim of the volume is to discuss the points of departure and assumptions about the world on which the regulation rests. These considerations lead to an attempt to give shape to ‘human trafficking’ as something distinct in the legal regulation. However, for the reasons discussed below, this last task is fraught with difficulties.

1 Canada, Finland, Germany, Italy, the Netherlands, Sweden, the UK and the US. 2 The focus is on Canada, the US, several countries of the EU, and the EU as such. 3 The papers were presented and discussed at three workshops, at Stockholm University (January 2016), the Free University of Amsterdam (June 2016) and Eberhard Karls University of Tübingen (January 2017). Thanks to Matt Matravers for his comments and proofreading of our introduction.

2  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt THE TRIANGLE OF HUMAN TRAFFICKING

At the core of the problem area is a triangle with a complex interplay between its constituent points: first an alleged reality, second a concept (‘human trafficking’), and third several legal regulations that vary between jurisdictions with regard to how the crime, through its elements, is defined. The alleged reality refers to an emerging phenomenon that gradually came to be structured and labelled as a problem and was increasingly presented as ubiquitous and urgent. One striking example is the sexual exploitation of European girls and women at the beginning of the twentieth century (see the chapters by Lindsay Farmer and Rita Haverkamp). Even if the number of actual victims was low but high in estimates, the phenomenon was captured by the so-called concept of ‘white slavery’ that triggered what in criminology is called a ‘moral panic’. The huge public attention and political interest led, then, to different legal initiatives at a national and international level, thus completing the triangle. From an initial and very strong focus on trafficking only for sexual purposes and on white young women, the concept has over time been broadened to encompass other purposes (eg, forced labour, trade in organs and begging). The notion of ‘human trafficking’ as it is given shape in the legislation was far from distinct from the beginning and it has arguably become even more difficult to grasp as its scope and reach have expanded. Furthermore, the triangulation points and their interconnections are occupied by different and diverse actors. For example, several stakeholders might have an interest in the concept of human trafficking not being given a distinct shape, either for the concept to be able to encompass all possible forms of what might be defined as ‘human trafficking’ or to highlight the moral wrong of its many facets (see the chapter by Tatjana Hörnle). Transnational human trafficking affects the territorial sovereignty of states and authorities as well as of supranational bodies like the EU, and among their interests is the protection of their borders from unwanted immigration. Transnational human trafficking thus relates to illegal immigration which is connected both to criminal law and immigration law (‘crimmigration’).4 In such cases, the foreign trafficked person has a double role as a crime victim (qua ‘trafficked’) and as a perpetrator (qua illegal immigrant), so-called victim offender overlap. However, the moral wrong of human trafficking demands that the vulnerability, and need for protection, of its victims is a­ cknowledged. Although the EU Directive (2011/36/EU) on human trafficking5 (Articles 11–16) addresses this problem and grants protection to victims of human trafficking who might also be offenders (Article 8), national legislation differs remarkably and the question arises how to identify trafficking victims among different kinds of migrants. Furthermore, the stereotype of an ideal victim (‘innocent, helpless person’) helps states and authorities to restrict the numbers of potential victims of human trafficking, especially within the era of mixed migration (see the chapters by Rita Haverkamp and Elina Pirjatanniemi).

4 S Aiken, D Lyon and M Thorburn, ‘Introduction: Crimmigration, Surveillance and Security Threats: A Multidisciplinary Dialogue’ (2014) 40 Queen’s Law Journal i, i. 5 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1.

Introduction  3 The (ideological) interest of politics and the (ideological) engagement of non-­ governmental organisations (NGOs) in the various fields of human trafficking (eg, forced begging and the forced committing of offences) hamper empirical research on the phenomenon.6 The tendentious orientation of the interested parties also has a negative influence on the quality of research in the area, because empirical studies often do not comply with the necessary empirical standards. The result is that estimates of those affected are not reliable (see the chapter by Hans-Jörg Albrecht).7 This shortcoming is illustrated by the numbers contained in the UN Global Report on Trafficking in Persons (UNODC 2016).8 According to the statistics in the UNODC 2016 Report, 63,251 victims of human trafficking were detected in 106 countries during the period from 2012 to 2014. The dark figure of human trafficking is claimed to be much higher, but the extent is still vague. Estimates by the International Labour Organization (ILO) come up with 40 million modern slaves in 2016, of whom 25 million relate to forced labour and 15 million to forced marriage.9 However, the concept of modern slavery is not the same as the concept of human trafficking, because the latter includes other forms of exploitation such as organ harvesting.10 The estimates reveal further weaknesses due to different definitions and often hidden methods of data collection. Moreover, the gap between registered victims and the dark figure that is meant to capture the ‘reality’ of human trafficking is inherently uncertain given the difficulty of obtaining precise data about clandestine phenomena. The worldwide contrast between the observed low conviction rates11 of perpetrators, on the one hand, and the high estimates of victims of human trafficking, on the other, fuels the opinion that ‘human trafficking’ criminalisations have not been able to provide the promised, or desired, results. The proposed – often tried, but seldom successful – cure has been further changes in the legislation, in the shape of, for example, harsher punishment, efforts to make the regulation more comprehensive and the alteration or removal of elements of the crime that are thought to be obstacles to conviction. The contrast between the alleged reality and the legal regulation are connected to the illusive concept of human trafficking. From the start, the concept has been emotively laden with strongly negative connotations, nowadays emphasised by successively more frequent connections made to the concept of ‘slavery’ (see the chapters by Lindsay Farmer, Matt Matravers and Francesco Viganò). That is why ‘human trafficking’ is widely loathed and manifold efforts aim to combat the phenomenon. But beside its emotional content, the concept also needs to be given operational substance. Such substance should be provided by the alleged, but widely hidden, reality. 6 JA Chuang, ‘Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-trafficking Law and Policy’ (2010) 158 University of Pennsylvania Law Review 1655, 1665 ff; G Tyldum and A Brunovskis, ‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17, 18. 7 G Tyldum, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1, 2. 8 UNODC, Global Report on Trafficking in Persons (New York, United Nations Publications, 2016). 9 ILO and Walk Free Foundation, Global Estimate of Modern Slavery: Forced Labour and Forced Marriage (Geneva, International Labour Office, 2017). 10 C Morehouse, Combating Human Trafficking. Policy Gaps and Hidden Potential Agendas in the USA and Germany (Wiesbaden, VS Research Springer, 2009) 79. 11 In countries that criminalised human trafficking before December 2003, the average number of trafficking convictions was 29 in 2014; see UNODC, Global Report on Trafficking in Persons (New York, United Nations Publications, 2016) 12.

4  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt The idea of human trafficking exists in at least two forms that interact in often intriguing ways. On the one hand, there are the narrow, technical, legal definitions that differ remarkably between jurisdictions. On the other, there are free-standing, more expansive notions existing within the popular imagination and often reinforced by popular ­journalism.12 The latter operates with an – often quite implicit – idea of human trafficking as something free-standing from what the police and prosecutors find and can prove, from what the courts conclude in particular cases and from what the legislator has criminalised or elsewhere legally defined as human trafficking. This free-standing notion seems, in the discourse, to be tied more to the concept as such or to a pre-determined image of the trafficked person (and, indeed, of the trafficker). It differs not only from the various legal definitions, but also from the broadly unknown victim population. The less one’s definition rests on solid empirical evidence, something which would presuppose, for example, agreement on what is to be measured (see the chapter by Hans-Jörg Albrecht), and the more one’s definition rests on the emotive concept as such, the closer ‘human trafficking’ comes to the free-standing notion, escaping precision, remaining unarticulated. Legal regulations offer at least operational definitions of what is ‘human ­trafficking’, though their relations to the concept of human trafficking and to one another are not necessarily consistent. The most influential legal definition can be found in Article 3 of the Palermo Protocol.13 The definition served not only as a role model for national legislation in many of the signatory states, but also for the Council of Europe Convention on Action against Trafficking in Human Beings and the EU Directive (2011/36/EU) on human trafficking,14 though both supranational instruments expand the scope of the Protocol. The Council of Europe Convention and the EU Directive highlight the human rights perspective even more than the Palermo Protocol. GRETA15 is responsible for the monitoring how the Council of Europe Convention is implemented in the signatory states. The European Court of Human Rights has recognised human trafficking as a violation of human rights and democratic principles according to the European Convention on Human Rights.16 Furthermore, the EU Charter of Fundamental Rights prohibits trafficking in human beings in Article 5(3). Human trafficking is also one of the EU core crimes mentioned in Article 83 of the Treaty of the Functioning of the European Union. The idea is central that ‘human trafficking’ is against the concept of human dignity and concerns about equality and freedom (see the chapter by Ester Herlin-Karnell). Despite the shared base in international and supranational legislation, the vagueness of the definition complicates its application in judicial systems because the lack of clarity 12 In everyday life, the term covers different situations, inter alia, prostitution, temporary employment, smuggling of human beings or even transfers of football players. See https://menschenhandelheute.net/was-istmenschenhandel. 13 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, ­supplementing the United Nations Convention against Transnational Organized Crime, adopted and opened for signature, ratification and accession by General Assembly Resolution 55/25 of 15 November 2000. 14 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1. 15 Group of Experts on Actions against Trafficking in Human Beings. 16 cf Siliadin v France, App No 73316/01, sentenced date 26 October 2005; Rantsev v Cyprus and Russia, App No 25965/04, sentenced date 10 May 2010; LE v Greece, App No 71545/12, sentenced date 21 January 2016.

Introduction  5 has been exported to the national legislation. When comparing the individual pieces of the definition in different jurisdictions, huge variations in the operationalisation of the idea of human trafficking can be observed. If one takes a closer look at the three components of the definition from the Palermo Protocol – (1) the act, (2) the means and (3) the ulterior purpose – one discovers that in one jurisdiction the act is left out, in another the means is left out and in a third the purpose is left out. Yet without, for example, the ulterior purpose, the core of the international understanding is gone and the national definition does not always reflect human trafficking, but something else, such as forced prostitution or forced labour. In addition to these fundamental differences, significant variations exist in terms of how the elements of the crime, and thus the offences, are technically construed. Such national differences need not in themselves be very problematic if there had been something tangible, something possible to grasp and clearly define, that one could agree on as the desired target of the regulation. Then it would be possible and normal that various jurisdictions differ in opinion regarding the most appropriate way to ‘technically’ come to terms with that behaviour. However, as already pointed out, a clearly defined phenomenon does not seem to be in the background. Whereas the legislation in relation to some other kinds of crimes identifies and labels the wrong clearly, in the case of trafficking, the criminalisation is more of a constitutive act constructing – through the choice of elements – a wrong. The wrong consists of a complex activity before the intended exploitation happens. The construction then consists of the choice of elements, which varies, plus the emotive concept (see the chapters by Tatjana Hörnle and Claes Lernestedt). In addition, essential elements of the crime of human trafficking obscure the understanding of the phenomenon, though they might have been thought of as attempts to give more shape both to the concept and to the legal regulation. One prominent example is ‘exploitation’ (see also the chapter by Malcolm Thorburn), which seems to have more or less two separate meanings. One meaning is activated where the trafficked person is intended to take part in non-sexual activities; there, one finds elaborate discussions of the free will of the person concerned and the use of economic terms (see the chapter by Piet Hein van Kempen and Sjarai Lestrade). The other meaning is activated in relation to trafficking for sexual purposes. The sexual component clouds the issue, particularly for those who advocate an abolitionist approach towards prostitution, because the buying and/or selling of sex is taken to be in itself proof of exploitation or intrinsically exploitative. The difference in comparison with the labour cases is that in the latter case, there is usually nothing wrong with working in itself and also (often) nothing wrong with the particular work itself. The discussion around ‘exploitation’ in labour cases refers to the conditions under which the work is performed: the level and conditions of payment, the working hours, the general working conditions etc. But when it comes to sexual exploitation combined with the prominent idea that any relevant activity with sexual purposes is exploitation per se, a nuanced way of using the concept of ‘exploitation’ is impossible. However, the image of an ideal victim makes it possible to restrict the ambit of exploitation.17

17 Beyond criminal law, the word ‘exploitation’ might have a descriptive or even positive meaning: eg, ‘I exploit the resources of my university library’.

6  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt Similar kinds of problems occur in relation to the concept of ‘vulnerability’ or a ‘vulnerable position’, frequently used for explaining and defining what should fall under the concept of ‘exploitation’ (see the chapter by Vera Bergelson). Even if this is not always the case, ‘vulnerable’ and ‘vulnerability’ are used to a rather (and too) large extent to signal reprehensibleness and not as something that should be first defined and then tested. Furthermore, conceptually one cannot be generally ‘vulnerable’: one must be vulnerable to something particular. As mentioned earlier, the offence of ‘trafficking in human beings’ reflects a process beginning with the recruitment of the victim and ending before this exploitation starts. The key elements, according to the Palermo Protocol (but see above regarding variations between jurisdictions) are the transfer of the victim with the use of various means and with the intention of exploiting the victim for harmful purposes. The police, other authorities and organisations are confronted with the difficulty of having to identify victims at an early stage, in particular when the victim himself or herself is not aware of being a trafficking victim. The crime’s construction as a preparatory offence shifts the focus from the neutral act to the purpose of the offender; the latter is difficult to prove. In this, trafficking in human beings is part of larger trends in various fields of criminal law,18 emphasising preventive and endangerment elements.19 HUMAN TRAFFICKING AND ITS WRONGS FROM DIFFERENT PERSPECTIVES

The depicted triad of human trafficking, with its interplay between the triangulation points, represents a number of complex difficulties, which are addressed in this volume from various cross-legal and interdisciplinary angles. The chapters in the volume address different aspects in order to identify, criticise and problematise the points of departure and framework of the regulation of human trafficking. Although the wrongs in human trafficking are the core question of the volume, reasons for criminalisation also play a role in particular for the ambition to give a distinct shape to the phenomenon as defined in the regulation. In order to do this, the volume begins with a more general approach tracing the historical roots of the concept, the empirical evidence, the embedding within the EU with regard to actual developments of migration, and the impact of NGOs on criminalisation. Then a specific approach focuses on different facets of wrongs relating to human trafficking by thematising the perpetrator, state sovereignty, the offence as such, the attribute ‘abuse of a position of vulnerability’, the term ‘exploitation’ concerning labour and a discussion of the reform of the offence of modern slavery. In Chapter 2, Lindsay Farmer highlights the historical background and argues that although the origins of modern trafficking law can be (and usually are) traced back to the early 1900s, there is no direct line of development between these developments and the present day. The law has covered many different types of conduct for different purposes and it is important to be aware of such differences. Farmer traces changes in 18 Reforms on expanding crimes against terrorism have been the most well-known example of the past few years. 19 M Bäcker, Kriminalpräventionsstrafrecht – Eine rechtssetzungsorientierte Studie zum Polizeirecht, zum Strafrecht und zum Strafverfahrensrecht (Tübingen, Mohr-Siebeck, 2015) 320.

Introduction  7 the ­conceptualisation of trafficking and in the enforcement of the law. He also looks at other conduct which can be seen as related to trafficking, notably slavery, and the way in which this has been criminalised at different times. By studying these differences, it is possible to reflect on what is (or is not) distinctive about the criminalisation of trafficking in the modern criminal law. Farmer argues that there is no single ‘wrong’ of trafficking, which can be captured in a concept such as exploitation, but that the possible content of the substantive wrong is filled by more culturally and historically specific ideas (slavery, abuse etc) at different points in time. It is necessary to understand these and the work that they do. This is to argue that trafficking is not intrinsically wrong, but depends on the definition of other things. This suggests a complex history in which the development of moral justifications for the criminalisation of certain forms of conduct is linked to the development of the institution of criminal law and to broader understandings of ‘crime’ as the object of the criminal law. Farmer’s aim is to explore some of these earlier developments first as a means of throwing light on what is distinctive about the contemporary criminalisation of trafficking and, second, as a means of exploring what this history can reveal about the character of contemporary criminal law. In Chapter 3, a criminological perspective is picked up by Hans-Jörg Albrecht, who emphasises that research on human trafficking is an ‘ethical minefield’ due to a combination of the sensitivity of the topic, the involvement of actors with their own agendas, and value conflicts and opposing policies. The phenomenon ‘human trafficking’ is characterised by a lack of reliable and comparable data, and yet nonetheless the field is populated by quite different estimates produced, circulated and recirculated by several institutions. Albrecht observes that the reliability is questionable and the validity of data neglected. For him, the question of data validity is even more important than problems with reliability because the former refers first to the decision about what should be measured and second to the need for a clear definition of the variable to be measured. He spots two key problems: first, the unsolved value and moral question about (in)voluntary prostitution and, second, the complex offences of trafficking for labour and sexual purposes which are difficult to apply as well as to operationalise for research. Albrecht considers various approaches to measuring human trafficking. The spectrum ranges from (police) statistics, open sources and searching for proxies to identifying hidden populations, to ‘measure the non-measurable’ by the moving target approach, and household surveys in the countries of origin. He discloses and discusses the weaknesses of all these approaches. Although the efforts to measure human trafficking are not promising in his conclusion, they will continue, due to the need for a global figure. Yet, for him, research on different markets of the phenomenon is still widely absent. He states that the focus on measuring also has substantial consequences for the assessment of antitrafficking policies by referring to contradictory assertions regarding the impact of the criminalisation of the demand of prostitution in Sweden. In Chapter 4, Rita Haverkamp directs the attention to victimology referring to Christie’s well-known stereotype of the ‘ideal victim’, who is weak, reputable, blameless, controlled by an evil offender, not acquainted with or related to the offender and self-identified as victim. Consequently, the ‘ideal victim’ induces a simplified perspective on the victim. Haverkamp illustrates a ‘hierarchy of victimhood’ where an innocent victim is on top of the hierarchy. At the very bottom of the hierarchy, the ‘undeserved’ or

8  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt ‘rejected victim’ is located, denied his or her legitimate victim status or even attributed offender status. With respect to human trafficking, a helpless and young woman forced into prostitution meets the aforementioned stereotype the best. However, this image is often unrelated to reality. In these ways, Haverkamp emphasises the disparities between the ideal victim and actual persons affected by trafficking. She shows that the construction of the ideal victim is reflected in international legal instruments and estimates. The generic picture of an ideal victim might influence not only criminal law but also crime prevention in practice. Haverkamp argues that strategies of crime prevention should be broadened to encompass the various nuances of becoming a trafficking victim, notwithstanding the social aspect of human trafficking and its structural and socioeconomic causes. She provides suggestions for developing specific crime prevention programmes for victims of human trafficking. In Chapter 5, Elina Pirjatanniemi addresses the victim of trafficking as a topic in the present discourse around migration. In a situation involving a mass flux of potential refugees, she understands that states try to find ways to prioritise among those seeking protection. In this respect, constructing certain groups of persons as worthy of particular care and protection is a plausible move. Her argument is that the concept of a vulnerable group is currently used as a mechanism by which such priorities are made in the EU. Some persons who belong to these groups are perceived as particularly vulnerable and consequently are given more comprehensive protection. One of these subcategories is victims of trafficking, who are attributed the status of ideal victims within the heterogeneous group of migrants. Pirjatanniemi discusses the questionable nature of the difference between the concepts of smuggling and trafficking of human beings in the refugee setting, and analyses EU legislation concerning asylum seekers and victims of trafficking in order to show how the particular vulnerability is perceived and construed in the EU. Although victims of trafficking seem to be in a privileged situation in comparison to other irregular migrants or asylum seekers, according to Pirjatanniemi, they are confronted with an instrumental approach. She points out that a temporary stay in the host country is dependent on the willingness of the victim of trafficking to support the authorities to convict the perpetrators. In her conclusion, vulnerability is largely identified as a managerial tool of prioritisation, over-inclusive by also entailing the EU border, but also over-exclusive with regard to third-country nationals. She is concerned that the law might cause more problems by ignoring the reality behind distorted legal categories. In Chapter 6, Ester Herlin-Karnell explores the crime of trafficking with a particular focus on human trafficking in the context of mixed migration in the EU constitutional context, as well as the importance of guaranteeing human rights and dignity oriented legislation. For Herlin-Karnell, human trafficking in the context of mixed migration poses new challenges for the European ‘Area of Freedom, Security and Justice’ project. The concept raises numerous questions as to what legal framework is applicable for addressing this open-textured phenomenon, as well as broader theoretical questions concerning rights and territoriality. She argues that the EU is obliged to combat human trafficking through criminalisation as the EU Charter of Fundamental Rights proclaims that ­trafficking in human beings is prohibited, as it goes against the basic idea that all human beings are entitled to equality and freedom. She adds an additional complication to the moral and legal questions as to why trafficking in human beings is wrong by

Introduction  9 focusing on the EU and the global implications of the current EU measures to tackle the migration crisis and the phenomenon of mixed migration. In Chapter 7, Tatjana Hörnle discusses human trafficking legislation from the perspective of criminal law theory, especially criminalisation theory, meaning that the kind of human rights activism she sees in the area of human trafficking does not pay sufficient attention to criminal law’s particularly intrusive nature. According to her, criminal law should not be considered a flexible tool to serve various political interests and moral convictions, but should instead be seen as a means to protect individual rights and important collective interests of certain kinds. She thus criticises, for example, the idea that criminal law may be used for protecting something like abstract European values when there is no violation of individual rights or threat to important collective interests. After an analysis of the concept of autonomy and the vague notion of exploitation (discussing a ‘right not to be exploited’), she further concludes that not all variations of what today falls under human trafficking criminalisation should be classified as crimes against the person and that one should not let moral judgements of the alleged trafficker decide legal judgments: the latter should apply more restrictive standards. Finally, she argues that a reshaped offence description should focus on the actual exploitation, not – as today – on preparatory acts. In Chapter 8, Claes Lernestedt discusses against what or whom the crime of human trafficking should be seen as directed. In many jurisdictions, the classification of crimes, in terms of (1) the interest or interests (said to be) protected by the criminalisation in question and (2) the larger ‘division’ of crimes which the particular crime is said to belong to (against person, against the state, against public order etc), plays an important descriptive as well as critical role. Such classifications might matter in issues related to criminal law (eg, regarding the possible role of consent), tort law (who is, and should be, able to claim damages?) and procedural law. As mentioned above, the crime of trafficking is generally – in international conventions, and EU and national legislation – constructed as a crime against person, that is, as a crime committed by the trafficker against the concrete trafficked flesh-and-blood person. Lernestedt discusses the correctness of this view. He argues, among other things, that some instances of what today falls under the definitions of ‘human trafficking’ should not be characterised as crimes against person at all, but instead as ‘moralistic’ crimes; the regulation of which has to be argued and evaluated on its own, quite different, terms. In Chapter 9, Malcolm Thorburn discusses what the specific wrong of the crime of human trafficking itself is. He answers that this specific or core wrong with human trafficking is the bringing of a prohibited thing to market. In this sense, human trafficking has similarities with, for example, gun or drug trafficking, one similarity being that these crimes do not constitute a wrong against a specific person; instead, trafficking is only wrongful in the context of a certain form of market regulation. The trafficker in human beings brings to market human beings for exploitation and does this whether or not these human beings in the end are ever actually exploited or not. With the crime’s early consummation point, it is the trafficker’s ulterior purpose – that the trafficked person will be exploited – which serves as a sifting tool regarding who is brought to be exploited and who is not. After a discussion and critique of different human trafficking regulations (including the Palermo Protocol and the Canadian legislation), Thorburn concludes that the core worry which human trafficking prohibitions raise has to do with their

10  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt c­ ombination of, on the one hand, a highly inchoate formal structure of the offence and, on the other, a highly indeterminate, eclectic and partly troublingly moralised understanding of the concept of exploitation. In Chapter 10, Matt Matravers’ main focus is on labour exploitation. He argues that in this particular field, the focus on trafficking in many instances threatens to distract attention from more serious issues. One such issue is what gets done to the trafficked persons after the point where the crime of trafficking is already consummated (as noted above, the crime is consummated at a very early stage). Another and more general issue, discussed with the help of a couple of examples, regards working conditions not only for the allegedly trafficked person but also for many others. Matravers argues that many of the harms suffered by trafficked persons are harms endemic to the labour markets in which they work, and that such markets are not the products of traffickers or international organised crime, but instead of political (labour market) choices made by governments. In many senses, then, the focus on human trafficking is misguided. Regarding the human trafficking regulation itself, Matravers argues that its criminalisation in the English Modern Slavery Act – a criminalisation that, interestingly, does not demand the use of any means – might be best understood not as targeting a distinct wrong, but instead as being there to empower the police and other agencies to investigate and disrupt supply chains that may reach across borders and into the realms of organised crime. In Chapter 11, Vera Bergelson explores the meaning of one of the ‘means’ of trafficking, namely the abuse of a position of vulnerability (APOV), and discusses whether there are sufficient moral grounds to include the APOV provision in the definition of the crime. She examines the meanings of such elements as ‘abuse’, ‘position of vulnerability’ and ‘exploitation’, as well as the relationship between these. She proceeds by looking at the theories that may provide reasons for criminalisation and focuses on violation of autonomy and violation of dignity. Establishing violation of autonomy is problematic because trafficking procured by APOV is usually consensual and consent precludes violation of autonomy (provided that it is valid). The Palermo Protocol, however, does not distinguish between valid and invalid consent, and declares any consent of the trafficked in the case of APOV to be irrelevant. Bergelson criticises this approach as being needlessly paternalistic, disrespectful to individual choices and damaging to democracy. She argues that the protection of dignity provides a stronger rationale for the criminalisation of trafficking based on APOV, but that the term ‘dignity’ has not been sufficiently defined. Rather, its meaning has been treated expansively to cover many situations not rising to the level of degradation and dehumanisation traditionally associated with violation of dignity. She concludes that APOV may or may not involve violation of autonomy or dignity. This approach differs from the one adopted by the Palermo Protocol and the associated national legislation, in that it does not assume either autonomy or dignity violation by APOV, but instead requires individual analysis of the circumstances. Any manipulation and taking advantage of another’s misfortune is wrong; however, only a certain gravity of wrongdoing reaches the level needed for justified criminalisation. Chapter 12 continues the discussion of ‘exploitation’. Piet Hein van Kempen and Sjarai Lestrade examine human trafficking for the purpose of labour exploitation. Their assumption is that the growth of this phenomenon is related to the flourishing gap between rich and poor countries and increasing globalisation. They contend that human trafficking is a grave offence which constitutes a breach of the human dignity

Introduction  11 of persons. Its expanding existence can thus be seen as an urgent and serious problem, for which states bear responsibility. The desirability of countering human trafficking notwithstanding, securing a healthy economy and sufficient availability of jobs is also an important task of states. Van Kempen and Lestrade emphasise that states have to make sure that acceptable working situations are not over-criminalised and thus hinder economic development or (international) cooperation or economic trade. Moreover, it must remain possible for migrants to seek a better working life elsewhere in the world without undesirably being treated as a victim of human trafficking. The authors elaborate on this dilemma: criminalisation of human trafficking versus economic development. They seek to describe, analyse and problematise where international human rights law and international transnational criminal law puts the balance between, on the one hand, interest in countering the phenomenon of human trafficking and, on the other, the interest in economic development. They argue that consensual and mutually advantageous exploitative labour does not contradict the labourer’s negative liberty and therefore does not cause harm and should not be defined as human trafficking. Their preference is for labour law to regulate labour conditions and standards and to specify offences for violations of labour law. In the closing Chapter 13, Francesco Viganò suggests a reconstruction of the offence of human trafficking. He emphasises that the offence is currently focused on the transport of the victims from their origin country to the final destination, carried out with the purpose of exploitation. His criticism is, in part, that this makes it hard for law enforcement agencies to distinguish, from the very outset of the investigation down to the trial, between this crime and that of smuggling of migrants. Indeed, both offences are usually carried out by transnational organised groups, often not caring about the ultimate fate of the persons in the destination countries and therefore lacking the mens rea necessary for the crime of trafficking. In addition, the means of transportation, as well as the means used to ensure the illegal entry of the persons into the destination state, are substantially the same. Viganò argues that the offence of trafficking should instead be reshaped and focused on the actual exploitation of the victim within the destination country, in a context where his or her freedom is significantly reduced. This shift would possibly produce a radical change in the investigative approach of law enforcement agencies, whose attention could be finally drawn to the criminal acts carried out within the national borders in respect to victims, regardless of whether they are nationals or legal/illegal migrants. After a comparison of the offences in the UK, Germany and Italy, Viganò proposes a new model offence, ‘slavery and modern slavery’, in order to criminalise the exploitation as the actual harmful act. For him, human trafficking should be a subordinate, inchoate offence. He concludes that such a regulation would avoid the existing deficiencies of the regulation that it is too vague and over-inclusive. Together, the chapters in this volume hope to advance the debate around what has come to be termed ‘human trafficking’: its history, its measurement, its various ideological underpinnings, its roles in the law of the EU and elsewhere, and – not least – the problems with its regulation. In doing so, the hope is to stimulate discussion not just about the regulation of human trafficking, but also about the institutions that regulate the social and economic context in which the phenomenon occurs, and the philosophical concepts – such as consent and exploitation – on which it rests.

12  Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt REFERENCES

Aiken, S, Lyon, D and Thorburn, M, ‘Introduction: Crimmigration, Surveillance and Security Threats: A Multidisciplinary Dialogue’ (2014) 40 Queen’s Law Journal i. Bäcker, M, Kriminalpräventionsstrafrecht – Eine rechtssetzungsorientierte Studie zum Polizeirecht, zum Strafrecht und zum Strafverfahrensrecht (Tübingen, Mohr-Siebeck, 2015). Chuang, JA, ‘Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-trafficking Law and Policy’ (2010) 158 University of Pennsylvania Law Review 1655. International Labour Organization (ILO) and Walk Free Foundation, Global Estimate of Modern Slavery: Forced Labour and Forced Marriage (Geneva, International Labour Office, 2017). Morehouse, C Combating Human Trafficking. Policy Gaps and Hidden Potential Agendas in the USA and Germany (Wiesbaden, VS Research Springer, 2009). Tyldum, G, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1. Tyldum, G and Brunovskis, A, ‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17. United Nations Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons (New York, United Nations Publications, 2016).

2 Trafficking, the Anti-Slavery Project and the Making of the Modern Criminal Law LINDSAY FARMER*

I. INTRODUCTION

T

here has been a huge growth in the number of laws against trafficking at the international, transnational and national levels over the last 30 years.1 Central to this increase was the UN Convention on Transnational Organized Crime in 2000, which was supplemented by Protocols on Trafficking and the Smuggling of Migrants (the Palermo Protocol) and which has provided a definition of trafficking that has acted as a template for much national legislation. At the level of the EU, there were parliamentary resolutions in 1989 and 1993, and in 1997 a resolution of the Council to ‘Combat Trafficking in Human Beings and the Sexual Exploitation of Children’, which linked trafficking to the control of migration and judicial cooperation in the EU.2 In 2002, there was a framework decision on combating trafficking in human beings (following the definitions in the UN Convention) and then in 2011 a directive on Trafficking in Human Beings which maintained this focus. This has been complemented by legislation at the national level as countries seek to make domestic law consistent with their international obligations. In England and Wales, there was legislation criminalising trafficking for the purposes of prostitution in 2002, 2003 and 2009, and for the purposes of labour

* Earlier versions of this chapter have been presented at the workshops on trafficking organised by Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt in Tübingen, Amsterdam and Stockholm, respectively. I have also presented versions of the chapter at the University of Sydney, the University of New South Wales and Columbia University, New York. I am grateful to all the participants at these events for their comments and advice. I am also grateful to Sarah Armstrong and to Charlie Peevers for their comments. 1 For a summary, see J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8 Criminology and Criminal Justice 421; A Gallagher, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010) ch 1. However, many commentators also note that it is unclear whether or not there has been a growth in the phenomenon of trafficking itself: numbers of prosecutions remain stubbornly low in spite of the routine assertion of a vast ‘dark figure’ of trafficking activity. See, eg, J Doezema, Sex Slaves and Discourse Masters: The Construction of Trafficking (London, Zed Books, 2010) Introduction. See also the chapter by Albrecht in this volume. 2 [1997] OJ L63, 4 March.

14  Lindsay Farmer exploitation in 2004. Much of this was then brought together in the Modern Slavery Act  2015. In Scotland, the Human T ­ rafficking and Exploitation (Scotland) Act was passed in 2015 containing s­ eparate offences of trafficking and slavery. This burst of legislative activity has brought about a broadening in the scope of the crime of trafficking and the way in which the crime has been conceptualised. This has shifted from an initial concern with prostitution, which had been the focus of anti-trafficking laws for much of the past century, to include other forms of people trafficking, child trafficking, forced labour and even trafficking for the purposes of surrogacy or organ harvesting. Crucially, this shift in focus has increasingly linked trafficking to the idea of modern slavery, understood broadly as forced exploitation and restrictions on freedom of the individual. These shifts raise the important questions about how we should conceive of, and define, trafficking as a crime, which are the principal focus of this book. However, in this chapter I want to place the contemporary discussion of trafficking within a longer historical framework. Although the origins of modern trafficking law are typically traced to the early 1900s, I will argue here that the law is better understood in terms of the longer trajectory of the modern anti-slavery movement. I shall further show that there is not, as is often suggested, a direct line of development between the ‘white slavery’ campaigners and the present day anti-trafficking movement – that is to say, that the problem(s) that earlier reformers believed themselves to be addressing through anti-trafficking legislation and the means by which they sought to address them were distinctively different in different historical periods.3 The aim of this chapter is thus to examine how ‘anti-trafficking’ law has developed in the modern period, asking about the content and scope of the crime, the interests that trafficking was thought to protect, and the aims that the law has been pursuing at different points in time. I shall accordingly look at the use of the criminal law in different historical periods from the abolition of slavery, to the rise of laws against the white slave trade, to the recent internationalisation and ‘re-domestication’ of criminal laws against trafficking. I will show how both the scope and the aims of the law have changed over time, and that an awareness of these differences can help us to reflect on what is (and is not) distinctive about the criminalisation of trafficking in the contemporary criminal law. The aim is therefore not to look in the first instance at the question of whether or not the criminalisation of trafficking is, or is not, justified; rather, it is to examine how the development of the crime of trafficking is linked to the development of the modern criminal law and what this tells us about the nature of contemporary criminal law. II.  TRAFFICKING AND THE ‘ANTI-SLAVERY PROJECT’

I want to begin by placing the development of anti-trafficking laws in the longer perspective of what Quirk describes as ‘the anti-slavery project’.4 This broader 3 See, eg, M Schrover, ‘History of Slavery, Human Smuggling and Trafficking 1860–2010’ in G Bruinsma (ed), Histories of Transnational Crime (New York, Springer, 2015) 42: ‘The current problematization shows ­continuity over time … Trafficking around 1900 was constructed as a problem in the same manner as it is today.’ See also Gallagher, Human Trafficking (2010) ch 2. 4 J Quirk, The Anti-Slavery Project: From the Slave Trade to Human Trafficking (Philadelphia, University of Pennsylvania Press, 2011).

Trafficking and the Anti-Slavery Project   15 perspective both enhances our historical understanding and provides the basis for a ­theoretical framework in which to think critically about the development of these laws. Quirk argues that modern beliefs about slavery are distinctive in that it is only in modernity that the view has developed that slavery and other forms of bondage or forced labour are wrong; in all other societies at all other times, practices of enslavement have been both widespread and accepted. If we recognise this point, the central question is not that of understanding why slavery occurs, but rather how (and on what basis) the distinctively modern set of beliefs about the unacceptability of forms of slavery and related conduct have been formed. For Quirk, the ‘anti-slavery project’ is thus a way of describing a certain modern attitude towards slavery and the associated movement to abolish slavery in all its forms, and it is this that forms the political and cultural backdrop against which initiatives against trafficking might be understood. Modern beliefs about the unacceptability of slavery began to gain political currency only in the mid-eighteenth century. In Britain, the initial campaigns took the form of an attack on the legal institution of slavery, which was defined as the owning of a person as property (chattel slavery), and were directed particularly at the Atlantic slave trade and the slave plantations in the Caribbean. Slavery was conceived of as a problem that was unique and exceptional, and that was capable of solution – by the abolition or prohibition of the legal institution of slavery and practices, such as the slave trade, that were associated with it.5 The British anti-slavery movement of the late eighteenth century was motivated by a horror of the extreme cruelty and inhumanity of transatlantic slavery, and had its intellectual foundations in emerging beliefs about the liberty and equality of persons and the possibility of human progress.6 The success of the anti-slavery project initially led to the outlawing of slavery in European countries and then, as anti-slavery was harnessed to the process of imperial expansion, to the global outlawing of, first, the slave trade and then slavery itself. However, Quirk notes that as practices of enslavement continued, notwithstanding its legal abolition, there was a shift to treating slavery as a metaphor or ‘evocative concept’ rather than as an analytical category.7 This allowed for the recognition and condemnation of abusive labour practices, such as actual or de facto bonded or indentured labour, that succeeded the abolition of chattel slavery, but it has also enabled other practices of exploitation (from servile marriage or forced prostitution to female genital mutilation or honour killings) to be compared, or be seen as equivalent, to slavery. For Quirk, this points to the fact that slavery does not end with the fact of emancipation, but that it takes on different forms requiring different kinds of instruments in response.8 However, a recognition of this process, and the moral valence of the

5 ibid ch 1. Quirk points to the fact that other forms of exploitation, suffering and maltreatment were largely ignored by the anti-slavery campaigns. 6 cf O Patterson, Freedom in the Making of Western Culture (London, IB Tauris, 1991): ‘for most of human history, and for nearly all of the non-Western world prior to Western contact, freedom was, and for many still remains, anything but an obvious and desirable goal’ (at x). On the origins of anti-slavery beliefs, see CL Brown, Moral Capital: Foundations of British Abolitionism (Chapel Hill, NC, University of North Carolina Press, 2006). 7 Quirk (n 4) 10. However, he notes (eg, at 249) that as the number of practices and institutions that have been equated with slavery has increased, it becomes more difficult ‘to identify a coherent rationale linking them together’. 8 ibid Conclusion.

16  Lindsay Farmer comparison with slavery, is a reminder that caution is required when confronting claims about the moral wrongness of certain practices on the basis of their assumed kinship with slavery.9 In the particular context of criminal law, it also challenges us to be critical about the kinds of groupings or associations that are made – notably that between trafficking and modern slavery – and to reflect on the punitive consequences of these kinds of conceptual association. I want to draw out three further important points. The first is that Quirk notes that one of the distinctive features of the nineteenth-century European anti-slavery project was that it was organised around an idea of cultural difference: those societies which had abolished slavery identified themselves as civilised and progressive in comparison to barbarous societies where slavery, or slavery-like practices, continued to exist.10 However, this went further, as throughout the nineteenth century and after, this same idea of civilisation was used to justify imperial expansion, invasion and the imposition of British (and later international) laws in the name of the civilised community from which they originated. This is to say that the anti-slavery project was not simply about the spread of ideas such as liberty, but was inextricably linked to an aggressive programme of colonial expansion that has been, and continues to be, justified in terms of its civilising aims. This is important to our understanding of the development of laws against slavery and trafficking, but it also points to ways in which the anti-­slavery project shared this ‘civilising’ imperative with the modern criminal law, which was itself used to enforce anti-slavery norms. The concept of civilisation, which was itself only invented in the eighteenth century, contained within itself an imperative to act (to civilise), to transform society through governmental action.11 The modern criminal law as a body of rules has its foundations in eighteenth-century ideas about the governability and potential for improvement of social conduct as a distinct kind of civilising project.12 We see this, for example, in Mill’s ‘harm’ principle, which is often taken as the paradigmatic statement of a liberal principle of criminal law: ‘the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others’ (emphasis added).13 Mill’s principle draws a fundamental distinction between civilised and uncivilised, between those who qualify for liberal government and those who do not, and is based on a hierarchical view of societies and social development. The project of criminal law, in common with the project of imperial government, was to produce civilised liberal subjects.14 This opens up a critical perspective on the criminalisation of trafficking and slavery since

9 J O’Connell Davidson, Modern Slavery (London, Palgrave Macmillan, 2016), who argues that this is both because slavery was less monolithic as an institution than is often assumed and because practices of ‘modern slavery’ are harder to distinguish from other forms of ‘legitimate’ exploitation. 10 Quirk (n 4) ch 2. 11 Z Bauman, Legislators and Interpreters (Cambridge, Polity, 1987) 89–95. On the origins of the concept of civilisation, see L Febvre, ‘Civilization: Evolution of a Word and a Group of Ideas’ in P Burke (ed), A New Kind of History: From the Writings of Febvre (London, Routledge, 1973). 12 L Farmer, Making the Modern Criminal Law (Oxford, Oxford University Press, 2016) ch 2. 13 JS Mill, On Liberty and other Essays (1859) (ed J Gray) (Oxford, Oxford World Classics, 1991) 14. See also M Levin, JS Mill on Civilization and Barbarism (London, Routledge, 2004) ch 1. 14 K Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, Princeton University Press, 2010).

Trafficking and the Anti-Slavery Project   17 we can see that this is not always, or not necessarily, a matter of advancing liberty, or the recognition of abstract harms, as ideas of slavery, trafficking and exploitation have been used to invoke a certain kind of community that has jurisdiction and authority to act – and to use the criminal law to enforce certain standards of ‘civilised’ conduct against those who are deemed to be uncivilised or barbarous. Moreover, the use of the concepts of slavery and trafficking inscribe both individual victims and certain countries in a relation of dependence: those who need to be helped by the civilised metropolitan community. The second point I want to bring out is the relation of the anti-slavery project to modern understandings of the market and its place in society. This is more than an argument that slavery was economically inefficient compared to free labour, which as Quirk points out played only a relatively minor role in the abolition of the institution of slavery;15 rather, it is a broader kind of claim that plays out in a number of different ways. At the most obvious level, the anti-slavery project raises questions about the limits of the market, about what can be bought and sold, and how these limits have been understood over time. In the case of chattel slavery, this is literally a matter of the permissibility of treating persons as commodities, but trafficking in a broader sense connotes questions of trade and how things are brought to the marketplace. Trafficking, though, is a term that has more recently acquired negative connotations, as to traffic something suggests that either the object to be sold or the kind of transaction (or both) is illicit, as in drug or human trafficking, as activities that operate in illicit markets or on the fringes of the market. However, understandings of what is illicit themselves depend on understandings of the proper scope of the market – of the meaning of free labour or proper employment, who can participate in the market or what can be bought and sold and how – though the basis for these understandings is rarely articulated in the debates over trafficking.16 This is a point that is also explicit in relation to ideas of exploitation. The anti-slavery project rests on an implicit contrast between free and unfree labour, or between permissible and impermissible forms of exploitation.17 Part of the case against slavery was based on the superiority – moral and economic – of free labour. This is exemplified by Adam Smith’s link between wealth, labour, liberty and social progress: ‘the wages of labour are the encouragement of industry, which, like every other human quality, improves in proportion to the encouragement it receives’.18 In his view, free labour, properly rewarded, maximised economic productivity and development, which then contributed to the further spread of freedom.19 Slavery was therefore condemned as unproductive because slave labour was the product of compulsion or domination rather than being motivated by self-interest. Labour that was freely contracted, by contrast, was seen as legitimate exploitation, as

15 Quirk (n 4) 50–51. 16 See C Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in A Bogg, et al (eds), The ­Autonomy of Labour Law (Oxford, Hart Publishing, 2015); see the chapter by van Kempen and Lestrade in this volume. 17 S Marks, ‘Exploitation as an International Legal Concept’ in S Marks (ed), International Law on the Left (Cambridge, Cambridge University Press, 2008) 281–308. 18 A Smith, The Wealth of Nations (London, Penguin, 1999) 184. 19 See S Drescher, The Mighty Experiment: Free Labor versus Slavery in British Emancipation (Oxford, Oxford University Press, 2002) ch 2; GR Searle, Morality and the Market in Victorian Britain (Oxford, Clarendon Press, 1998) ch 4.

18  Lindsay Farmer it served the interests of both parties. In a similar vein, arguments against trafficking and modern slavery rest on the claim that this is an illegitimate form of exploitation, a perversion of the market.20 In the case of slavery and trafficking, the illegitimacy of the practice rests on an implicit comparison with norms of freely contracted labour.21 The anti-slavery project has thus never exclusively been an ethical critique, but has always also been based on ideas about how markets should function and the relationship between a market economy and moral order.22 It is thus crucial that in tracing the development of the anti-slavery project – and the expansion of the crime of trafficking – the changing scope of the criminal law is set against a backdrop of changing understandings of the market and its regulation. This is then connected to the final point, which is that these understandings of markets shape legal understandings of the proper scope of civil and criminal law. At the heart of this modern understanding of society is the idea that the market is a separate and autonomous social sphere which operates according to its own distinct logic – a form of natural, self-regulating order.23 Markets are understood as a way of coordinating social conduct between rational, self-interested individuals. There is thus a distinction, recognised by social theorists from Adam Smith onwards, between matters of private (self-)interest and matters of public interest, that is then reflected in the distinction between private and public law. The general role of criminal law is not to interfere in the operation of the market, but merely to police its boundaries – dealing with egregious cases of fraud or misappropriation of property, but generally leaving the regulation of markets to private interests and the law of contract.24 However, as the criminal law becomes increasingly concerned with illegitimate forms of exploitation, it moves into areas of social life that have traditionally been conceived of as private. The overall point to note here, so far as it concerns the scope of the criminal law, is that what is criminal does not depend only on ideas about harms or forms of wrongdoing that are internal to the criminal law, but on understandings of the proper scope of the market or of legitimate forms of exploitation, and that the content of these is not something which is given, but which changes over time. In the next section, I shall look at these themes by exploring the legal dimensions of different stages in the development of the anti-slavery project – slavery, ‘white slavery’, trafficking and modern slavery – to see how the problems of slavery and trafficking have been framed, the particular practices or types of conduct that have been criminalised, and the kinds of social institutions that have made these developments possible.

20 See D Hay and P Craven, ‘The Criminalization of “Free” Labour: Master and Servant in Comparative Perspective’ (1994) 15 Slavery & Abolition 71 on the relationship between slave and ‘free’ labour and the use of the criminal law to enforce labour contracts. 21 Though the ‘free-ness’ of free labour can be contested. For a historical discussion of the development of ‘free’ labour, see RJ Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill, University of North Carolina Press, 1991). 22 C Taylor, Modern Social Imaginaries (Durham, NC, Duke University Press, 2004). 23 For a discussion of this, see B Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Cambridge, MA, Harvard University Press, 2011) chs 5 and 6. 24 See JF Stephen, A History of the Criminal Law of England (3 vols) (London, Macmillan, 1883) III, ch XXX at 193 and 203.

Trafficking and the Anti-Slavery Project   19 III.  SLAVERY, TRAFFICKING AND EXPLOITATION IN THE CRIMINAL LAW

A.  Slavery and Its Abolition Legal authorities were ambiguous about the legality of slavery in late eighteenthcentury England. Blackstone stated emphatically that slavery did not and could not exist in England, arguing that it was contrary to the principles of natural law.25 While he consequently argued that a slave coming to England would become a free man because the law protected his person, liberty and property, this claim was somewhat qualified by his subsequent assertion that such a person would be bound through the principle of contract to serve his master as before. This same point was argued in a series of cases between 1677 and 1833, the most famous of which was Lord Mansfield’s decision in the Somerset case (1772).26 This decision is often read as an emphatic declaration of the illegality of slavery in England, but while Mansfield declared that the escaped slave, Somerset, could not forcibly be removed from England, he carefully refrained from any unequivocal declaration of the illegality of slavery. Indeed, there is a clear recognition in the case that slavery was legal in the American colonies and that contracts for the sale of slaves were supported by English law. The decision was thus based on the much narrower grounds that certain forms of coercion should not be exercised against slaves while they were resident in England, but that once they left (provided this was not achieved by force), they might be treated as chattels once again.27 These cases were nonetheless important in two respects: first, they gave publicity and encouragement to the anti-slavery movement by articulating legal principles that challenged the institution of slavery, such that it is reckoned that by the 1790s, slavery was being treated as de facto illegal in England;28 and, second, because they drew the distinction between practices that were permissible in England and in its colonies, or between metropolitan and colonial culture, that was to shape the development of attitudes towards slavery over the course of the next century. In the 1780s and 1790s, in the wake of the American Revolution, the anti-slavery movement led by the Quakers and evangelicals coalesced into a more organised public campaign directed at Parliament and focusing initially on the unacceptability of the slave trade. Their campaigning led first to the Act of 1807 that abolished the slave trade by British subjects, and then to legislation abolishing slavery in the British Empire in 1833.29

25 W Blackstone, Commentaries on the Law of England (Oxford, Clarendon Press, 1765–69) 411–13. 26 The Somerset case. In Howell’s State Trials, vol 20, cols 1–6, 79–82 (1816); Somerset v Stewart (1772) 98 ER 499. See now also A Lyall, Granville Sharp’s Cases on Slavery (Oxford, Hart Publishing, 2017). For a discussion of this, see E Fiddes, ‘Lord Mansfield and the Somersett Case’ (1934) 50 LQR 499; J Oldham, ‘New Light on Mansfield and Slavery’ (1988) 27 Journal of British Studies 45. 27 Mansfield accordingly took the view in other cases that a slave could be bought and sold under English law, that they could not claim wages and that the master’s property in the slave should be respected so far as was consistent with the common law. See Fiddes, ‘Lord Mansfield’ (1934) 506. For a full discussion, see S Drescher, Capitalism and Antislavery (London, Macmillan, 1986) ch 2. 28 Brown, Moral Capital (2006) 95–101 suggests that this was motivated by a desire to keep England both morally and racially pure. 29 47 Geo III c 46 (1807) & 3 & 4 Wm IV c 73 (1833). See generally S Drescher, Capitalism and Antislavery (London, Macmillan, 1986). See a full list of legislation from this period at www.pdavis.nl/Legislation.htm.

20  Lindsay Farmer The 1807 Act did not make slave trading itself a felony, merely imposing financial penalties on those who were found to be involved in, or associated with, the slave trade.30 The real wrong was seen to be the institution of slavery itself and the further abuses that this gave rise to, and trafficking in slaves was initially outlawed as a means of attacking these greater evils. However, a further Act passed in 1811 marked an important change in approach, as it aimed to make the enforcement of the law more effective by imposing criminal penalties. The principal effect of the Act was to make trading in slaves a felony and therefore capital.31 However, there were two important further measures in the Act: slave trading by British nationals taking place outside the UK could be tried under piracy statutes; and authorising governors of colonies, or persons authorised by them, to seize ships that they suspected of involvement in the slave trade.32 These measures not only established the moral equivalence of slavery and piracy, as hostis humani generis, but thereby also authorised the boarding and seizing of slave ships by the British navy and established jurisdiction for the trial of slave traders under the international law of piracy. The overall effect was thus not only to make trafficking in slaves a crime, but also to establish the legal means by which Britain would begin to enforce its anti-slavery policy against other countries.33 The system which was established over the next half-century enabled Britain to police the Atlantic slave trade, pursuing not only British slave traders or those shipping slaves to British colonies, but later also those of any nationality shipping slaves to Brazil and Cuba to work on the sugar plantations there. This was authorised by a series of bilateral treaties with other nations under which British ships obtained authority to board ships carrying the flag of those nations and search either for slaves or evidence that ships had been fitted out for slave trading. This work was carried out by the ‘West Africa squadron’, which patrolled the western seaboard of Africa, hunting down alleged slavers.34 These operations did not always run smoothly: the British patrols were under-resourced, slavers often reacted to the threat of capture by throwing slaves overboard, and there is evidence that numbers of slaves trafficked to Brazil and Cuba actually increased during the 1840s and 1850s when this campaign was at its height.35 However, the British authorities understood and justified their conduct as an act of moral leadership in pursuit of the eradication of barbarous practices of slavery. Indeed, in the final years of the nineteenth

30 47 Geo III c 46 (1807) ss 1 and 3. Under s 12, it was made a felony to forge certificates of bounty (proving the freeing of slaves) with intent to defraud the Treasury. 31 51 Geo III c 13 s 1 (1811). Offences under the Act were to be tried ‘as if’ committed in the county of Middlesex (s 11). This was extended by 5 Geo IV c 113 (1824) s 10 to include dealing in slaves, fitting out slave ships, financing slave ships, serving on slave ships etc. 32 Sections 6 and 8. See also 5 Geo IV c 114 (1824) s 9, under which dealers in slaves on the high seas could be treated as pirates. The Slave Trade Act 1843 (6 & 7 Vict c 98) further extended this jurisdiction over the slave trade, applying to all British subjects whether in British dominions or in any foreign country, or foreigners within British dominions or within the jurisdiction of admiralty. 33 S Drescher, ‘From Consensus to Consensus: Slavery in International Law’ in J Allain (ed), The Legal Understanding of Slavery (Oxford, Oxford University Press, 2012) 90. 34 See C Lloyd, The Navy and the Slave Trade: The Suppression of the African Slave Trade in the ­Nineteenth Century (London, Routledge, 1968); H Thomas, The Slave Trade: The Story of the Atlantic Slave Trade ­1440–1870 (London, Picador, 1997) Book VI. 35 For a discussion of the case of the Felicidade (1845) and its consequences, see L Farmer, ‘Territorial Jurisdiction and Criminalization’ (2013) 63 University of Toronto Law Journal 225.

Trafficking and the Anti-Slavery Project   21 century, this British civilising mission was transformed into a more general mission of Western civilisation, as slavery was declared to be against international law following the international conference on Africa in Berlin in 1884. The effect, as Drescher argues, was to authorise those Western states which had abolished slavery to intervene in barbarous and backward African states, even by means of violent conquest, as a means of ending the slave trade.36 While this is only a brief summary, we can note two key features of the development of anti-slavery measures in the law. The first is that criminal law was central to the antislavery project as a means by which measures against the international trafficking of slaves could be, and were, enforced.37 This, it should be further noted, is a dimension of the anti-slavery movement which has not yet been fully explored. Second, the significance of the use of the criminal law extends beyond its use as an instrument of enforcement, as the use of criminal law was central to the project of lifting up those groups of persons who were ‘subject to harsh and brutal treatment and regarded as less than fully human by those who exercised power over them’.38 In other words, the object was not only to punish but also to shape individuals and society in a particular way. In pursuit of this aim, jurisdiction was expanded beyond the simple distinction between metropole and colony found in Somerset to become organised around a distinction between civilisation and barbarism that not only extended the law but also changed the shape of its operation, justifying the acquisition of territory.39 African slaves were not seen as the equals of British citizens, but as persons worthy of better treatment, and it was the responsibility of the British government to ensure that this was secured in the name of British civilisation.40 B.  The White Slave Trade 1870–1920 The anti-slavery project markedly broadened its scope with the campaign against ‘white slavery’ in the final decades of the nineteenth century. The term ‘white slavery’ was first used in the early part of the nineteenth century to refer to poor working conditions in factories before the passing of the Factory Acts in the 1830s.41 It was used in this sense to claim an equivalence to slavery as an institution, a usage that continued in the critiques of work under capitalism as forms of ‘wage slavery’. However, the term ‘white slavery’ began

36 Drescher, ‘Consensus to Consensus’ (2012) 96–97, drawing on M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge, Cambridge University Press, 2001). See also Quirk (n 4) ch 3. 37 See L Benton, ‘Abolition and Imperial Law, 1790–1820’ (2011) 39 Journal of Imperial and Commonwealth History 355, who notes that the enforcement of criminal laws against slavers depended on the advancement of imperial interests. 38 D Turley, The Culture of English Anti-slavery, 1780–1860 (London, Routledge, 1991) 135. On the prison reform movement, see M Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (London, Macmillan, 1978). 39 See E Gould, ‘Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, c. 1772’ (2003) 60 William and Mary Quarterly 471, 506–07. 40 See C Hall, Civilising Subjects: Metropole and Colony in the English Imagination 1830–1867 (Chicago, University of Chicago Press, 2002). 41 Activists such as William Cobbett argued that focusing on the exploitation of slaves in the West Indies ignored the exploitation that went on in Britain. See Brown (n 6) 14.

22  Lindsay Farmer to acquire its popular meaning in the purity campaigns around the regulation of prostitution and the suppression of vice in late nineteenth-century England. As early as 1857, the campaigner William Acton was referring to prostitution as a form of white slavery, and the term was taken up by Josephine Butler in her campaign against the Contagious Diseases Acts and her work with international campaigns for the abolition of state regulation of vice.42 For these campaigners, and the organisations which they represented, such as the Society for the Suppression of Vice or the National Vigilance Association, the principal aim was to rescue women from a life of vice and immorality, and the analogy with slavery was a way of raising the profile of their campaigns. However, the significance of the term ‘white slavery’ changed quite markedly in the 1880s as it was linked to the specific issue of procuring underage girls and selling them into prostitution, particularly to legalised brothels in Belgium. The initial campaign was led by Alfred Dyer, a publisher who was secretary of a group called the ‘Friend’s Association for the Abolition of the State Regulation of Vice’.43 He raised the issue in his luridly titled pamphlet The European Slave Trade in English Girls. A Narrative of the Facts (1880).44 After recounting details of a trip to Brussels and his abortive attempt to rescue an English woman from a brothel there, Dyer argued that the inmates of such houses were being kept in a state of ‘veritable slavery’.45 These girls were: [S]old into a condition of slavery infinitely more cruel and revolting than negro servitude, because it is slavery not for labour but for lust; and more cowardly than negro slavery because it falls on the young and helpless of one sex only.46

We see here that the analogy is drawn with slavery in an effort to point up the seriousness of the problem: the state of the girls was worse than chattel slavery because it was white (English) girls who were being enslaved and for immoral purposes.47 Moreover, the comparison with slavery was used to point to the capacity of sexual enslavement to reduce the English girl to a state of barbarism: ‘the pure and lovely girl of six months before, becomes literally a wild beast’.48 The clear duty of the English legislature was to take steps to protect young English women in an extension of the role it had played in policing the Atlantic slave trade. As a result of pressure from the newly formed London Committee for the Exposure and Suppression of the Traffic in English Girls for Purposes of Continental Prostitution (headed by Dyer himself), pressure was put on the government to investigate the problem. 42 W Acton, Prostitution Considered in its Moral, Social and Sanitary Aspects (London, John Churchill, 1857) 94. On Butler and the Contagious Diseases Acts, see J Walkowitz, Prostitution and Victorian Society (Cambridge, Cambridge University Press, 1980); C Devereux, ‘The “Maiden Tribute” and the Rise of the White Slave in the Nineteenth Century: The Making of an Imperial Construct’ (2000) 26 Victorian Review 1, 10–12; J Laite, Common Prostitutes and Ordinary Citizens: Commercial Sex in London 1885–1960 (Basingstoke, Palgrave Macmillan, 2012) ch 6. 43 See R Attwood, ‘Lock up Your Daughters! Male Activists, “Patriotic Domesticity” and the Fight against Sex Trafficking in England, 1880–1912’ (2015) 27 Gender & History 611; MJD Roberts, Making English Morals: Voluntary Association and Moral Reform in England, 1787–1886 (Cambridge, Cambridge University Press, 2004) ch 6. See also the chapter by Haverkamp in this volume. 44 A Dyer, The European Slave Trade in English Girls: A Narrative of the Facts (London, Dyer Brothers, 1880). 45 ibid 4. Later he argued ‘here she was as much a slave as was ever any negro upon Virginian soil’ (at 7). 46 ibid 6. 47 He went on to argue that English subjects had a right to be protected from a state of bondage: ibid 31. 48 ibid 32.

Trafficking and the Anti-Slavery Project   23 A House of Lords Select Committee took evidence and reported in 1882, recommending changes to the law.49 This body found evidence of registry offices operating in London to persuade women to move to Belgium for employment, and of 33 underage girls (below the age of 21) entering brothels in Belgium. A draft bill to amend the criminal law was put before Parliament and was eventually passed as the Criminal Law Amendment Act  1885. This sought ‘to prevent the traffic in young girls who were exported for the purpose of prostitution abroad’ and ‘to prevent the prostitution of children of tender years’ as ‘nothing could be more injurious to the foundations of society’.50 To this end, it made three significant changes to the law in this area. The first was to raise the age of consent to sexual intercourse from 13 to 16.51 Second, the Act criminalised the procuring of women or girls below the age of 21 with intent either to have unlawful carnal connexion or to work as a prostitute or in any brothel ‘within or without the Queen’s dominions’.52 Finally, the Act contained provisions which were directed against those who permitted the ‘defilement’ of young girls on their premises – that is to say, it was directed against brothel owners or those who profited from prostitution.53 The measures against white slavery followed two paths after this. On the one hand, there was a domestic campaign driven by the National Vigilance Association (NVA) against brothel keepers or those living off the earnings of prostitutes.54 This was animated by a fear of foreign prostitutes and their ‘bullies’ or souteneurs (pimps) coming to London.55 The Vagrancy (Amendment) Act 1898 made it a crime for a man to live wholly or partly on the earnings of prostitution (punishable by flogging). The Aliens Act 1905 gave magistrates power to repatriate foreign prostitutes and aliens convicted of offences punishable by more than a fine – which would include living off the earnings of prostitution, amongst other offences.56 This was followed up by the Criminal Law Amendment Act 1912, popularly referred to as the ‘white slavery bill’, which strengthened the penalties against brothel keepers and procurers, allowed the police to arrest on suspicion, and established that men who associated with prostitutes and had no visible mean of support had to demonstrate that they were not living off the earnings of prostitution.57 On the other hand, the NVA pursued a more international programme, launching a campaign 49 The Select Committee of the House of Lords, Report of the House of Lords Select Committee on the Law Relating to the Protection of Young Girls (London, HMSO, 1882). 50 Sir William Harcourt, Home Secretary, quoted in S Petrow, Policing Morals (Oxford, Oxford University Press, 1994) 159. Further public support followed the publication of WT Stead, The Maiden Tribute of Modern Babylon (London, Pall Mall Gazette, 1885). 51 Sections 4 and 5. However, sex with a girl between the ages of 13 and 16 was regarded only as a ­misdemeanour and not a felony. 52 Section 2. See also s 3 (procuring defilement by threats, fraud or drugs) and s 7 (abduction of a girl under 18 with intent to have carnal knowledge). The consent or non-consent of the woman was irrelevant to the definition of the offence. 53 Section 6 (householder permitting the defilement of a young girl on his premises) and s 9 (power of search and enforcement provisions). See generally F Mead and AH Bodkin, The Criminal Law Amendment Act 1885 (London, Shaw & Sons, 1885). 54 Criminal Law Amendment Act 1912. See also Petrow, Policing Morals (1994) 158–76. 55 See the evidence of William Coote to the Royal Commission on Alien Immigration, Report of the Royal Commission on Alien Immigration (Cd 1742) (London, HMSO, 1903) vol II, 425–29, referring to the ‘excess of vice’ in foreign prostitutes as compared to English women. 56 5 Edw VII c 13 s 3. See generally J Pellew, ‘The Home Office and the Aliens Act 1905’ (1989) 32 Historical Journal 369. 57 2 & 3 Geo 5 c 20. On the enforcement of these laws, see Laite, Common Prostitutes (2012) 107–15.

24  Lindsay Farmer against white slavery with the aim of establishing uniform procedures throughout Europe and making white slavery a crime under international law.58 This led to the creation of international organisations for the suppression of trafficking, such as the International Bureau for the Suppression of Traffic in Persons founded in 1899 and the signing of the Paris Convention 1904 for the ‘Suppression of the “White Slave Traffic”’.59 This agreement between the imperial governments of the major European powers established an obligation to keep watch at ports, railway stations and other points of transit for evidence of criminal traffic, to collect information and to repatriate women or girls who were detained as part of this process. Overall, white slavery was understood as a problem of the abduction and organised prostitution of young women, and the campaigners drew liberally on the tropes of the anti-slavery movement with its appeals against corruption and barbarism to protect Britain from possible moral pollution. It was thus a bringing together of late Victorian concerns about prostitution and child protection, articulated with beliefs about the need to protect the nation from corrupting migration.60 This had its origins in domestic concerns, protecting English girls from being duped into working in legalised brothels in continental Europe, but later gained a more international focus on preventing or policing the movement of foreign prostitutes and their pimps, who were believed to be bringing corrupt practices to England. Throughout the period, however, the concern was vice and prostitution, and the threat it posed to domestic order, rather than the movement of persons as such. The threat was foreign and was a consequence of increased levels of migration, but the focus in the law and enforcement on ‘trafficking’ was because this was seen as the means by which the ultimate threat could be prevented from materialising.61 The law was also explicitly policing female sexuality, as no distinction was drawn between voluntary or forced sex work. Consent or its absence was not really an issue as trafficking was presumed to be non-consensual and coercive.62 To be sure, the age of consent was raised to 16 (for sexual intercourse) and to 21 for abduction; however, this was less a matter of recognising (or protecting) the autonomy of the victim than setting thresholds which would allow for the more effective enforcement of the law. Young women were not seen as independent, but as under the protection of their fathers. The criminal law was thus (literally) paternalistic in its aims, protecting the family and the state. C.  The Internationalisation of Trafficking and Slavery The concern with vice – understood as a problem of the regulation of sexual morality and directed in particular at the control of prostitution – continued to be a major concern throughout the interwar years. However, the specific issues of trafficking and 58 Petrow (n 50) 162; Attwood, ‘Lock up Your Daughters’ (2015) 618–19. 59 www1.umn.edu/humanrts/instree/whiteslavetraffic1904.html (amended in 1910). 60 The former was arguably also being articulated against the backdrop of a broader concern with the ­liberating effects of the market and urbanisation on sexual morality. 61 See, eg, Laite (n 42) ch 6, who argues that the law was aimed at the control of female migration. 62 P Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca, Cornell U ­ niversity Press, 1999) 65.

Trafficking and the Anti-Slavery Project   25 slavery were (separately) taken up by the League of Nations after its formation in 1919. Under ­Article  23(c) of the Covenant of the League of Nations, the League took over the general supervision of the execution of the pre-war conventions on the traffic in women and children.63 This was followed by the signing of an Anti-Trafficking Convention in Geneva in 1921 which established a new framework for the enforcement of these conventions. What was distinctive about the Anti-Trafficking Convention was that it was an attempt to formulate an international response and, while this built on the earlier Conventions of 1904 and 1910, it reformulated the problem of trafficking as a matter of international, rather than primarily domestic, concern.64 This was underlined by an important shift in terminology, as there was a move away from the language of ‘white slavery’ to speak of ‘trafficking’ – the victims of which need not only be white women or girls.65 Under the Convention, signatories were requested to submit annual returns on the extent of ­trafficking and report measures taken to suppress it. A further significant outcome of the Geneva conference was the establishment of the Advisory Committee on the Traffic of Women and Children, which sat between 1921 and 1936.66 This was comprised of a combination of delegates representing countries which were signatories to the Convention and representatives of voluntary organisations, and crucial to the work of the Committee was that it undertook to carry out studies to collect evidence about the extent and forms of trafficking with the aim of establishing the ‘facts’. To this end, the Committee appointed a special body of experts and investigators, funded by the American Social Hygiene ­Association, that travelled to 112 cities worldwide and interviewed over 6,500 people.67 The results of this research were published in a two-volume report in 1927.68 The report placed particular emphasis on processes of recruitment or procurement in the construction of what the authors of the report saw as global networks of trafficking, detailing a range of different methods used to dupe unwary women and girls into prostitution. And while it was conceded that not all women were unwilling participants – and,

63 https://cil.nus.edu.sg/rp/il/pdf/1919%20Covenant%20of%20the%20League%20of%20Nations-pdf.pdf. This article also covered traffic in opium and other dangerous drugs. 64 See D Gorman, ‘Empire, Internationalism and the Campaign against the Traffic in Women and Children in the 1920s’ (2008) 19 Twentieth Century British History 186. 65 Trafficking was defined as ‘the direct or indirect procuration and transportation for gain to a foreign ­country of women and girls for the sexual gratification of one or more other persons’ (League of Nations, Report of the Special Body of Experts on Traffic in Women and Children (2 vols) (Geneva, League of Nations, 1927) I, 8–9). See also MR Garcia, ‘The League of Nations and the Moral Recruitment of Women’ (2012) 57 International Review of Social History 97. 66 On the composition and work of the Committee, see J Pliley, ‘Claims to Protection: The Rise and Fall of Feminist Abolitionism in the League of Nations’ Committee on the Traffic in Women and Children, 1919–1936’ (2010) 22 Journal of Women’s History 90; P Knepper, ‘The Investigation into the Traffic in Women by the League of Nations. Sociological Jurisprudence as an International Social Project’ (2016) 34 Law and History Review 45. 67 See Knepper, ‘Investigation’ (2016) 53–56; Garcia, ‘The League of Nations’ (2012) 106–09. 68 League of Nations, Report of the Special Body of Experts on Traffic in Women and Children (1927). An abridged version of the report was published as HW Harris, Human Merchandise: A Study of the International Traffic in Women (London, E Benn Ltd, 1928). This was followed by a further study in 1932, which had a wider international scope, looking in particular at trafficking in East Asia revealing evidence of global movements of women of a wide range of ethnicities working as prostitutes with varying degree of consent. See League of Nations, Commission of Enquiry into Traffic in Women and Children in the East (Geneva, League of Nations, 1932).

26  Lindsay Farmer indeed, that many had been prostitutes before travelling – the report identified procurers as the agents of the traffic and thus as the proper target of regulation. The deliberations of the Committee eventually led to a revised Convention in 1933, which extended the 1921 Convention to cover women of any age who were procured, enticed or led away for immoral purposes, even if they had consented.69 These were further extended in the 1949 UN Convention for the Suppression of the Traffic in Persons, which covered all forms of exploitation for the purposes of prostitution.70 This process thus saw an international legal regime developing for the control of ­trafficking for signatories of the Conventions. At the heart of the regime was the commitment to criminalise a range of conduct relating to trafficking for the purposes of prostitution.71 This initially took the form of a general obligation to prosecute those involved in the trafficking of women and children, but after 1933 this came to be focused more specifically on procurers or pimps – reflecting the findings of the Advisory Committee. This was further backed up by the undertaking of states to license employment agencies in order to ensure that only reputable agents could operate and thus to limit the supply of women. Corresponding to this were changes in the conception of the agency of victims. While the earlier conventions were directed at the protection of those below the age of 20 (1910) and then 21 (1921), following the 1933 Convention, protections were to be extended to women or girls of any age, even if they were c­ onsenting.72 This assumption of a lack of agency was further reinforced by the undertaking to repatriate victims, which was established in Article 3 of the 1904 Convention. These criminal measures were then backed up by measures to improve the enforcement of the law. These focused on the exchange of information between signatories on a range of issues from records of conviction, or where a person had been denied entry to a country or expelled from it. These measures also coincided with the development of measures to control national borders and migration, notably with the development of the international passport system in the 1920s which enabled states to begin to track the movements of persons across borders.73 At the same time as these measures were being adopted, the League of Nations was addressing the issue of slavery in the Slavery Convention 1926, the first international treaty directed at slavery as well as the slave trade.74 Slavery was defined as ‘the status or ­condition of a person over whom any or all of the powers attaching to the right

69 https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/1933_international_convention_en_1.pdf. On the deliberations of the Committee leading to this, see Garcia (n 65) 109–17. 70 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx). Article 2 specifically identified brothel keeping or letting a building for the purposes of prostitution. 71 Though prostitution itself was never criminalised because of the difficulties in gaining support from ­countries where brothels were legal. 72 1933 Convention, art 1. 73 J Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, Cambridge University Press, 2000). 74 Convention of Slavery, Servitude, Forced Labour and Similar Institutions and Practices (www.un.org/en/ genocideprevention/documents/atrocity-crimes/Doc.13_slavery%20conv.pdf). See generally J Allain, ‘The Legal Definition in Slavery into the Twenty-First Century’ and S Drescher, ‘From Consensus to Consensus: Slavery in International Law’ (at 99), both in J Allain (ed), Legal Understandings of Slavery (Oxford, Oxford University Press, 2012).

Trafficking and the Anti-Slavery Project   27 of ­ownership are exercised’. This wide definition committed the signatories to attack slavery and the slave trade ‘in all its forms’.75 This was extended by the Supplementary Convention on the Abolition of Slavery 1956, which included all forms of servitude (specifically debt bondage, servile marriage, serfdom and child labour) within the definition of s­lavery.76 In 1975, a UN Working Group further recommended the adoption of an open-ended definition: forced exploitation and restrictions on the freedom of the individual causing hardship or serious deprivation of liberty.77 The outcome of this process was the opening up of the definition of slavery to analogous forms of servitude or e­xploitation and, in the measures to criminalise and to protect victims, a growing convergence between definitions of trafficking and slavery.78 Overall, these developments move the questions of trafficking from the domestic to the international plane – not least because it was one of the few areas in which agreement could be secured at an international level.79 The regime that was established had a number of key features. As we have seen, international bodies were charged with collection of evidence about trafficking and prostitution on which legal initiatives were to be based. The legal initiatives were increasingly focused on the use of the criminal law, at a domestic level, to limit the supply of trafficked women and girls and to ‘rescue’ the women who had been recruited.80 International law was thus intervening in the lives of individuals on a humanitarian model – by identifying the groups to be assisted and intervening on a basis that paid little heed to agency or decisions of those who were to be saved.81 Protection was equated with emancipation, even where this might have gone against the wishes of the victims. The focus on supply was partly a matter of pragmatism, with the recognition of the Advisory Committee that legalised prostitution was deeply entrenched in many countries and that it would accordingly be difficult to obtain widespread international agreement on any measures that sought to criminalise prostitution directly, but this framing of the problem also reflected the deeper understanding that the problem should be understood in terms of the operation of a market. The question thus became that of how supply and demand could be controlled through the use of the criminal law which focused on points of movement across borders. This framed trafficking as an international problem that allowed a nascent global civil society to regulate migration and to civilise vice.

75 Article 2. See also art 4 of the UN Declaration of Human Rights 1948: ‘No one shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms.’ 76 www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConventionAbolitionOfSlavery.aspx. 77 OHCHR, Contemporary Forms of Slavery (Fact Sheet 14) (Geneva, United Nations Press, 1991). 78 Schrover, ‘History of Slavery’ (2015) argues that from the late 1920s, formal definitions of trafficking and slavery began to converge. 79 Knepper suggests that people trafficking was taken up on the model of drugs and arms trafficking, as areas within which the League of Nations could develop jurisdiction. See P Knepper, ‘Dreams and Nightmares: Drug Trafficking and the History of International Crime’ in P Knepper and A Johansen (eds), The Oxford Handbook of the History of Crime and Criminal Justice (Oxford, Oxford University Press, 2016). Also important here is the role of the International Labor Organization, though there is not the space to discuss this here. 80 Garcia (n 65). 81 See S Legg, ‘“The Life of Individuals as Well as of Nations”: International Law and the League of Nations” Anti-trafficking Governmentalities’ (2012) 25 Leiden Journal of International Law 647; Gorman, ‘Empire, Internationalism’ (2008).

28  Lindsay Farmer D.  Trafficking and Modern Slavery The new initiatives against trafficking which developed from the early 1990s were driven, on the one hand, by a concern with large-scale population movements as a consequence of wars, famine and economic deprivation, and, on the other hand, by feminist activism at an international level.82 While these initiatives initially remained focused on the trafficking of women for the purposes of prostitution, this gradually broadened out to include other forms of exploitation and was driven by combination of motives ranging from the desire to control migration and people smuggling, to prevent organised crime, to address violence against and exploitation of women, as well as to protect the human rights of trafficked persons.83 This combination of motives was reflected in the Palermo Protocol (2000). This was one of three supplements (protocols) to the UN Convention against Transnational Organised Crime – the others were on the smuggling of migrants and the illicit manufacture and traffic of firearms.84 The link to organised crime and people smuggling (illicit migration), as also recognised by bodies such as the EU, thus placed trafficking in a framework which linked the enforcement of the law to the control of migration, crime and security.85 The Palermo Protocol adopted a broad definition of trafficking: Trafficking in persons shall mean 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 of benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, 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.86

On the basis of this definition, trafficking is, in principle, distinguished from people smuggling as it is not defined in terms of illegal migration, but as a crime against the individual centred around the core idea of exploitation, which may be manifested in the particular forms of coercion and forced labour (including sex work). This has three core elements: conduct (recruitment, transportation etc) carried out by certain means (coercion etc) and for the purpose of exploitation, which have now begun to find their way into domestic legislation. Signatory states additionally committed to measures to protect victims, as well as to establish detection and enforcement mechanisms for controlling irregular migration (Articles 9–13) and to repatriate victims (Article 8). It is thus a broad definition, which through the definition of exploitation links trafficking to slavery.

82 J Halley et al, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law & Gender 335. 83 For a discussion of this, see Gallagher (n 1) ch 1. 84 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, www.unodc.org/documents/ treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf. 85 V Mitsilegas, The Criminalization of Migration in Europe: Challenges for Human Rights and the Rule of Law (London, Springer, 2015) ch 3. See also the chapter by Herlin-Karnell in this volume. 86 Article 3.

Trafficking and the Anti-Slavery Project   29 This link is explicitly recognised in recent UK legislation, where the definition of trafficking adopts, in a slightly modified form, the tripartite structure of the international instruments.87 In the Modern Slavery Act 2015 (MSA), there are separate offences of trafficking and slavery. Trafficking is defined in section 2 as arranging or facilitating travel for the purposes of exploitation; the definition of exploitation then includes slavery or servitude, sexual exploitation and the removal of organs, as well as subjecting a person to force, threats or fraud to make them provide services or benefits of any kind (section 3). Slavery is defined in section 1 as holding another person in slavery or servitude, or forcing them to perform forced labour in circumstances which constitute exploitation. The consent of victim is irrelevant to both definitions.88 Travel is defined as coming to any country, departing from any country or movement within any country – the significance of which is that the idea of trafficking now loses any specific reference to the crossing of national borders and instead becomes something that precedes or is preparatory to the exploitation. Indeed, trafficking, in the sense of movement, is no longer constitutive of the crime, which is increasingly focused on illegitimate forms of exploitation. An important feature of the English legislation, then, is that as slavery is made the primary offence, trafficking becomes a kind of inchoate offence, setting out conduct that might be carried out for the purposes of enslaving another (although the definition of exploitation is arguably wider than that of slavery).89 The crime of trafficking in section 2 is defined as ‘arranging or facilitating the travel of another person (V) with a view to V being exploited’. The crime under section 4 is defined as committing any other offence with the intent of committing an offence under section 2 (trafficking). It is also worth noting that the crime has a wide extraterritorial ambit, being capable of being committed by UK citizens anywhere in the world or by citizens of any other country if the crime is to be committed in the UK.90 It is worth noting the significance of the focus on exploitation, which means that the offence is not defined simply in terms of conduct, but also in terms of purpose and circumstances. This requires a judgment that the conduct was done with the purpose of exploitation in mind and that the circumstances or relations between persons were exploitative. Exploitation is not in itself impermissible, but only becomes so when it is of a certain degree or type – something which goes beyond normal labour relations or market conduct.91 In the MSA, exploitation is defined either by reference to the further set of situations in section 3, which are deemed to be exploitative (sexual exploitation, removal of organs etc), or in the more general terms of section 3(5) and (6) as where a person is subjected to force, threats or deception to induce him or her to perform a service, or where services are obtained from a child or a vulnerable person. This focus on purpose and context is an increasingly common characteristic of the modern­

87 Modern Slavery Act 2015; cf the Human Trafficking and Exploitation (Scotland) Act 2015, which creates a separate offence of slavery (s 4). 88 MSA, ss 1(5) and 2(2). 89 cf Human Trafficking and Exploitation (S) Act 2015, ss 1–3. 90 Corresponding to the deterritorialisation of the UK border. See N Vaughan-Williams, ‘The UK Border Security Continuum: Virtual Biopolitics and the Simulation of the Sovereign Ban’ (2010) Environment and Planning D: Society and Space 1071. 91 See the chapter by Matravers in this volume. See also J Collins, ‘Exploitation of Persons and the Limits of the Criminal Law’ [2017] Crim LR 169.

30  Lindsay Farmer criminal law – particularly in ‘abuse’ type of offences, where it is the purpose that is used to ­distinguish normal ‘use’ from abuse.92 This is also reflected in the references to vulnerability and control, where the law defines a class of persons, often in highly gendered ways, who are not autonomous, but who require an additional degree of protection. These new crimes are increasingly context-dependent, as the wrong is defined in terms of the kind of ongoing relationship and the purpose of that relationship rather than simply in terms of conduct.93 Overall, these developments in the criminal law of trafficking and modern slavery not only expand the scope of the law to protect actual (or potential) victims of trafficking, but also enable more extensive forms of policing of those deemed to be vulnerable, or those made vulnerable because of their precarious work or immigration status.94 Migrants are particularly vulnerable because they do not have access to the entitlements of citizens and might have to take on dangerous work or entrust themselves to others such as gang masters or pimps in order to survive. It is thus clear that the practices of citizenship contribute to the survival of certain forms of exploitation associated with trafficking – as well as the legitimation of other forms of market exploitation. In this context, it is important to note that it has been argued that the ‘true driving force’ behind the measures adopted against trafficking has been issues of sovereignty and security.95 This is so in the formal sense that the trafficking protocol is supplementary to the convention against organised transnational crime. But it is also true in the less formal sense that the prevention of trafficking, and the protection of the vulnerable is easily linked to the fortifying of borders and the restriction of migration. Thus, what is presented in terms of the protection of the human rights of individual victims is in fact expanding the power of the state and serving state interests.96 This suggests that what perhaps holds this together is a new kind of civilising narrative, exemplified by things like the Global Slavery Index, which present a ranking of countries worldwide in terms of the estimated prevalence of slavery and their willingness to adopt measures to combat modern slavery.97 Indices such as this reinforce the idea that modern slavery and trafficking are problems that have their origins beyond the domestic in certain disorderly foreign countries. Countries like the UK can thus act against trafficking on the basis that it is something that ‘no civilised country should tolerate’.98 This inscribes a new

92 See Collins, ‘Exploitation’ (2017) 175–86. See also the chapters by Bergelson, Thorburn and Viganò in this volume. 93 See V Munro, ‘Shifting Sands? Consent, Context and Vulnerability in Contemporary Sexual Offences Policy in England and Wales’ (2017) 26 Social & Legal Studies 417; Farmer, Making the Modern Criminal Law (2016) 257–61 and 286–92. 94 Quirk (n 4) 217. In spite of the name, trafficking is concerned with what happens after migrants reach their destination rather than the movement itself. 95 Gallagher (n 1) ch 1. 96 S FitzGerald, ‘Vulnerable Bodies, Vulnerable Borders: Extraterritoriality and Human Trafficking’ (2012) 20 Feminist Legal Studies 227. See also the chapter by Perjatenniemi in this volume. 97 www.globalslaveryindex.org/findings. For a critical discussion of this, see O’Connell Davidson, Modern Slavery (2016) ch 1. For a more general critical discussion of the use of statistics in the recognition of global problems, see SE Merry, The Seductions of Quantification: Measuring Human Rights, Gender Violence and Sex Trafficking (Chicago, University of Chicago Press, 2016). 98 Home Office, Human Trafficking: The Government’s Strategy (London, HMSO, 2011) Foreword by Theresa May (www.gov.uk/government/uploads/system/uploads/attachment_data/file/97845/human-traffickingstrategy.pdf).

Trafficking and the Anti-Slavery Project   31 c­ ivilising narrative and the need for an international community to act, at both national and international law, in the name of the victim, and to respond under the banner of human rights to the problem of modern slavery. IV.  THE ANTI-SLAVERY PROJECT AND THE MODERN CRIMINAL LAW

It is tempting to see the development of anti-trafficking laws, and the recognition of modern slavery, in terms of a narrative of progress: the recognition of new forms of exploitation and vulnerability being followed by the enactment of new criminal laws to protect the victims. And from this perspective, the problem of criminalisation is framed in terms of individual rights and interests, and the harms or wrongs that might be committed against them. On this kind of account, the law is humanitarian, and the justification for the law is always that it offers new forms of protection, perhaps articulated around new themes such as the human rights of the victim. The story that I have tried to tell here is more complex: wrongs do not exist in a vacuum waiting to be discovered or recognised by the criminal law. The wrongs are created by new forms of migration, the establishment and policing of national borders or new kinds of economic exploitation arising from the globalisation of labour markets. The meaning of freedom is shaped by understandings of acceptable labour conditions and the proper forms of migration. And new forms of protection for the trafficked are also, at the same time, new forms of control or new manifestations of the civilising imperative. Taking the anti-slavery project as the overarching framework allows us a different perspective on the different moments in the development of contemporary trafficking laws and what they do, and do not, have in common. Notably, it allows us to see the recent criminalisation of trafficking not as something novel, but as the latest stage in the development of the anti-slavery movement. However, it also allows us to see the different ways that these broad concerns have been responded to by the law over the last 250 years. Trafficking has remained a nebulous concept throughout its history – less a clear and obvious form of wrongdoing than an issue around which particular concerns or campaigns have been capable of crystallising, and an issue which has allowed states to project domestic concerns more widely.99 There have been some constants in its history, such as the concern with prostitution, the threat of the foreign or the outsider, and the framing around narratives of civilisation and barbarism; however, at the same time, criminal laws against trafficking have from their earliest moments been working to establish international networks of surveillance, cooperation and enforcement. Yet, as the anti-slavery project has crystallised around the idea of exploitation, it has gained a new kind of universality which allows it to translate to different contexts, as well as an open-ended commitment to ending unacceptable forms of exploitation. It is arguable that this has become a new kind of civilising mission, which has identified a new kind of universal wrong and is driven by global civil society. I want to conclude by reflecting on the features of this civilising mission as it has been articulated in the criminal law.



99 See

also the chapter by Lernestedt in this volume.

32  Lindsay Farmer At the heart of the current civilising mission is the concern with ending exploitation and helping the vulnerable – yet the fact that the creation of new vulnerabilities and new forms of exploitation are side-effects of globalisation, or the development of a particular global economic system, is incidental.100 Criminal law does not address the fundamental structural conditions, but merely polices the boundaries of acceptability, while displacing structural issues to the level of individual guilt and responsibility. Central to this, as we have seen, throughout the different stages of the project has been the articulation of ever-wider claims to jurisdiction that allow the civilisers to act in the name of the civilised community that they claim to represent. At one level, this is done through the legislation of statutory provisions that extend criminal jurisdiction out from its original territorial basis to a new kind of jurisdiction based on, first, a metropolitan and then a cosmopolitan ethos. Just as importantly, this operates through the invocation of a global community that possesses the legitimate authority to recognise and prosecute trafficking and modern slavery. Running through this, there is also a tension over the role of the market as a civiliser or as a mechanism with potential to release criminogenic impulses. The anti-slavery movement believed that freely contracted labour contributed to the growth of social and political freedom. The original idea of ‘white slavery’, by contrast, was based on a critique of market conditions and the recognition that markets required regulation. In the contemporary legislation, the motivating ideas go beyond this to an idea of markets as criminogenic. In other words, the laws should not only modify the effects of market forces, but should also recognise that an essential quality of markets in certain areas is that they encourage criminal conduct (exploitation) and encourage organised crime. Thus, in recent initiatives, it is precisely the development of global markets that has created the opportunities for new forms of exploitation – which then requires the compensating action of the criminal law to mitigate the worst effects of the market. These tensions, as we have seen, run through the history of anti-trafficking legislation and are not likely to be resolved by a new emphasis on individual rights or the rights of the victim, or attempts to specify with greater precision any wrong that may (or may not) lie at the heart of ­trafficking or modern slavery. REFERENCES

Acton, W, Prostitution Considered in its Moral, Social and Sanitary Aspects (London, John Churchill, 1857). Allain, J, ‘The Legal Definition of Slavery into the Twenty-First Century’ in J Allain (ed), The Legal Understandings of Slavery (Oxford, Oxford University Press, 2012) 199–219. Attwood, R, ‘Lock up Your Daughters! Male Activists, “Patriotic Domesticity” and the Fight against Sex Trafficking in England, 1880–1912’ (2015) 27 Gender & History 611. Bauman, Z, Legislators and Interpreters (Cambridge, Polity, 1987). 100 ‘In an age in which profit rests ever more on the ability to control the long-distance migration of people and things, the interests of capital often run ahead of those of nation-states, which must devise cumbersome means of governing at a distance by regulating the plastic and paper personae of their subjects’; J Comaroff and J Comaroff, ‘Law and Disorder in the Postcolony’ (2007) 15 Social Anthropology 133, 137.

Trafficking and the Anti-Slavery Project   33 Benton, L, ‘Abolition and Imperial Law, 1790–1820’ (2011) 39 Journal of Imperial and Commonwealth History 355. Blackstone, W, Commentaries on the Law of England (Oxford, Clarendon Press, 1765–69). Brown, CL, Moral Capital. Foundations of British Abolitionism (Chapel Hill, University of North Carolina Press, 2006). Collins, J, ‘Exploitation of Persons and the Limits of the Criminal Law’ [2017] Crim LR 169. Comaroff, J and Comaroff, J, ‘Law and Disorder in the Postcolony’ (2007) 15 Social Anthropology 133. Costello, C, ‘Migrants and Forced Labour: A Labour Law Response’ in A Bogg et al (eds), The Autonomy of Labour Law (Oxford, Hart Publishing, 2015) 189–228. Devereux, C, ‘The “Maiden Tribute” and the Rise of the White Slave in the Nineteenth Century: The Making of an Imperial Construct’ (2000) 26 Victorian Review 1. Doezema, J, Sex Slaves and Discourse Masters: The Construction of Trafficking (London, Zed Books, 2010). Drescher, S, Capitalism and Antislavery (London, Macmillan, 1986). ——. The Mighty Experiment: Free Labor versus Slavery in British Emancipation (Oxford, Oxford University Press, 2002). ——. ‘From Consensus to Consensus: Slavery in International Law’ in J Allain (ed), The Legal Understanding of Slavery (Oxford, Oxford University Press, 2012) 85–104. Dyer, A, The European Slave Trade in English Girls: A Narrative of the Facts (London, Dyer Brothers, 1880). Farmer, L, ‘Territorial Jurisdiction and Criminalization’ (2013) 63 University of Toronto Law Journal 225. ——. Making the Modern Criminal Law (Oxford, Oxford University Press, 2016). Febvre, L, ‘Civilization: Evolution of a Word and a Group of Ideas’ in P Burke (ed), A New Kind of History: From the Writings of Febvre (London, Routledge, 1973) 219–58. Fiddes, E, ‘Lord Mansfield and the Somersett Case’ (1934) 50 LQR 499. FitzGerald, S, ‘Vulnerable Bodies, Vulnerable Borders: Extraterritoriality and Human Trafficking’ (2012) 20 Feminist Legal Studies 227. Gallagher, A, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010). Garcia, MR, ‘The League of Nations and the Moral Recruitment of Women’ (2012) 57 International Review of Social History 97. Goodey, J, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8 Criminology and Criminal Justice 421. Gorman, D, ‘Empire, Internationalism and the Campaign against the Traffic in Women and Children in the 1920s’ (2008) 19 Twentieth Century British History 186. Gould, E, ‘Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, c. 1772’ (2003) 60 William and Mary Quarterly 471. Haag, P, Consent. Sexual Rights and the Transformation of American Liberalism (Ithaca, Cornell University Press, 1999). Hall, C, Civilising Subjects. Metropole and Colony in the English Imagination 1830–1867 (Chicago, University of Chicago Press, 2002).

34  Lindsay Farmer Halley, J et al, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law & Gender 335. Harcourt, B, The Illusion of Free Markets. Punishment and the Myth of Natural Order (Cambridge, MA, Harvard University Press, 2011). Harris, HW, Human Merchandise: A Study of the International Traffic in Women (London, E Benn Ltd, 1928). Hay, D and Craven, P, ‘The Criminalization of “Free” Labour: Master and Servant in Comparative Perspective’ (1994) 15 Slavery & Abolition 71. Home Office, Human Trafficking: The Government’s Strategy (London, HMSO, 2011). Ignatieff, M, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (London, Macmillan, 1978). Knepper, P, ‘Dreams and Nightmares: Drug Trafficking and the History of International Crime’ in P Knepper and A Johansen (eds), The Oxford Handbook of the History of Crime and Criminal Justice (Oxford, Oxford University Press, 2016) 208–25. ——. ‘The Investigation into the Traffic in Women by the League of Nations. Sociological Jurisprudence as an International Social Project’ (2016) 34 Law and History Review 45. Koskenniemi, M, The Gentle Civilizer of Nations. The Rise and Fall of International Law, 1870–1960 (Cambridge, Cambridge University Press, 2001). Laite, J, Common Prostitutes and Ordinary Citizens: Commercial Sex in London 1885–1960 (Basingstoke, Palgrave Macmillan, 2012). League of Nations, Report of the Special Body of Experts on Traffic in Women and Children (2 vols) (Geneva, League of Nations, 1927). ——. Commission of Enquiry into Traffic in Women and Children in the East (Geneva, League of Nations, 1932). Legg, S, ‘“The Life of Individuals as Well as of Nations”: International Law and the League of Nations” Anti-trafficking Governmentalities’ (2012) 25 Leiden Journal of International Law 647. Levin, M, JS Mill on Civilization and Barbarism (London, Routledge, 2004). Lloyd, C, The Navy and the Slave Trade. The Suppression of the African Slave Trade in the Nineteenth Century (London, Routledge, 1968). Lyall, A, Granville Sharp’s Cases on Slavery (Oxford, Hart Publishing, 2017). Mantena, K, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, Princeton University Press, 2010). Marks, S, ‘Exploitation as an International Legal Concept’ in S Marks (ed), International Law on the Left (Cambridge, Cambridge University Press, 2008) 281–308. Mead, F and Bodkin, AH, The Criminal Law Amendment Act 1885 (London, Shaw & Sons, 1885). Merry, SE, The Seductions of Quantification: Measuring Human Rights, Gender Violence and Sex Trafficking (Chicago, University of Chicago Press, 2016). Mill, JS, On Liberty and Other Essays (1859) (ed J Gray) (Oxford, Oxford World Classics, 1991). Mitsilegas, V, The Criminalization of Migration in Europe: Challenges for Human Rights and the Rule of Law (London, Springer, 2015). Munro, V, ‘Shifting Sands? Consent, Context and Vulnerability in Contemporary Sexual Offences Policy in England and Wales’ (2017) 26 Social & Legal Studies 417.

Trafficking and the Anti-Slavery Project   35 O’Connell Davidson, J, Modern Slavery (London, Palgrave Macmillan, 2016). Office of the High Commissioner for Human Rights (OHCHR), Contemporary Forms of Slavery (Fact Sheet 14) (Geneva, United Nations Press 1991). Oldham, J, ‘New Light on Mansfield and Slavery’ (1988) 27 Journal of British Studies 45. Patterson, O, Freedom in the Making of Western Culture (London, IB Tauris, 1991). Pellew, J, ‘The Home Office and the Aliens Act 1905’ (1989) 32 Historical Journal 369. Petrow, S, Policing Morals (Oxford, Oxford University Press, 1994). Pliley, J, ‘Claims to Protection. The Rise and Fall of Feminist Abolitionism in the League of Nations’ Committee on the Traffic in Women and Children, 1919–1936’ (2010) 22 Journal of Women’s History 90. Quirk, J, The Anti-Slavery Project: From the Slave Trade to Human Trafficking (Philadelphia, University of Pennsylvania Press, 2011). Roberts, MJD, Making English Morals: Voluntary Association and Moral Reform in England, 1787–1886 (Cambridge, Cambridge University Press, 2004). Royal Commission on Alien Immigration, Report of the Royal Commission on Alien Immigration (Cd 1742) (London, HMSO, 1903). Schrover, M, ‘History of Slavery, Human Smuggling and Trafficking 1860–2010’ in G Bruinsma (ed), Histories of Transnational Crime (New York, Springer, 2015) 41–70. Searle, GR, Morality and the Market in Victorian Britain (Oxford, Clarendon Press, 1998). Select Committee of the House of Lords, Report of the House of Lords Select Committee on the Law Relating to the Protection of Young Girls (London, HMSO, 1882). Smith, A, The Wealth of Nations (London, Penguin, 1999). Stead, WT, The Maiden Tribute of Modern Babylon (London, Pall Mall Gazette, 1885). Steinfeld, RJ, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill, University of North Carolina Press, 1991). Stephen, JF, A History of the Criminal Law of England (3 vols) (London, Macmillan, 1883). Taylor, C, Modern Social Imaginaries (Durham, NC, Duke University Press, 2004). Thomas, H, The Slave Trade: The Story of the Atlantic Slave Trade 1440–1870 (London, Picador, 1997). Torpey, J, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, Cambridge University Press, 2000). Turley, D, The Culture of English Anti-slavery, 1780–1860 (London, Routledge, 1991). Vaughan-Williams, N, ‘The UK Border Security Continuum: Virtual Biopolitics and the Simulation of the Sovereign Ban’ (2010) Environment and Planning D: Society and Space 1071. Walkowitz, J, Prostitution and Victorian Society (Cambridge, Cambridge University Press, 1980).

36 

3 Measuring Human Trafficking HANS-JÖRG ALBRECHT

I.  INTRODUCTION: IMAGES, IMAGINATION AND THE PREVALENCE OF HUMAN TRAFFICKING

N

o doubt, measures of human trafficking are important. However, they may serve quite distinct purposes. And the object of measurement is heavily loaded with sensitive issues.1 Besides organised crime,2 the topic of migration and immigration is evidently closely associated with human trafficking,3 as is violence against women and children, the issue of victims of crime in general and, most ­importantly, prostitution and sex markets.4 These issues contribute to a high signal value of human trafficking and attract a wide range of actors interested in the protection of victims, abolition of prostitution, containment of organised crime etc. This mix of sensitive issues and interested actors eventually results in research on human trafficking representing not only an ‘ethical minefield’5 shaped by ‘ethical and safety recommendations’ particularly designed for interviewing trafficked women,6 but also a topic fraught with value conflicts and opposing policies. First and most prominently, measures of trafficking are used in debates on the nature and scope of the problem of human trafficking in developing and implementing ­anti-trafficking policies and in negotiations on the resources necessary to respond effectively to trafficking. Prevalence figures on human trafficking vary wildly and they come with images and narratives of victimisation through human trafficking which stimulate imaginations of (modern) slavery as a global bad. Jakobsson and Kotsadam

1 This chapter was finalised in January 2016. 2 Centre for Social Justice, A Modern Response to Modern Slavery (London, Centre for Social Justice, 2015) 10. 3 CJ Ulrich, Alien-Smuggling and Uncontrolled Migration in Northern Europe and the Baltic Region (Helsinki, HEUNI, 1995); S Lăzăroiu and M Alexandru, Who is the Next Victim? Vulnerability of Young ­Romanian Women to Trafficking in Human Beings (Bucharest, IOM, 2003). 4 BC Oude Breuil et al, ‘Human Trafficking Revisited: Legal, Enforcement and Ethnographic Narratives on Sex Trafficking to Western Europe’ (2011) 14 Trends in Organised Crime 30. 5 SX Zhang, ‘The Ethical Minefield in Human Trafficking Research: Real and Imagined’ in D Siegel and R de Wildt (eds), Ethical Concerns in Research on Human Trafficking (Cham, Springer, 2016). 6 WHO, The WHO Ethical and Safety Recommendations for Interviewing Trafficked Women (Geneva, WHO, 2003); UNIAP, Guide to Ethics and Human Rights in Counter-trafficking (Bangkok, Regional Project Management Office, 2008).

38  Hans-Jörg Albrecht present a figure of 4,000,000 victims of trafficking annually and worldwide,7 a figure seemingly taken from a United Nations High Commissioner for Refugees (UNHCR) report; however, the figures provided in the UNHCR 2005 report refer to a total of ­600,000–800,000 victims of ­trafficking.8 The US Department of State quotes Secretary of State John Kerry, who declared that it is ‘estimated still that there are more than 20 million people who are enslaved, but regrettably, only a fraction of them, perhaps 1 percent, are identified on an annual basis’.9 The figure provided by Kerry most probably refers to the 20.9 million people counted by the International Labour Organization (ILO) to be in forced labour globally (‘trafficked for labour and sexual exploitation or held in slavery-like ­conditions’).10 The 2014 report on human trafficking published by the United Nations Office on Drugs and Crime (UNODC) adopts another perspective and refrains from estimates on the prevalence of victims of trafficking. The report restricts trafficking numbers to cases reported by police or other state agencies, while concluding from the data that: (1) most countries are affected by trafficking; and that (2) more than two billion people are not protected properly by criminal law statutes as requested by the trafficking in persons protocols attached to the Palermo Transnational Crime Convention.11 Second, measures of trafficking – in particular, estimates on absolute numbers of ­trafficked women and children – are evidently considered to be helpful in raising awareness on the problem through making the problem visible (for example, ‘this first estimate had the effect of launching an entirely new global discussion on the issue, not only on the extent of the problem that had been largely invisible due to weak or non-existent reliable data, but also on how to mobilise public awareness of its continued existence and develop means to support its elimination’)12 and gaining attention by the public and the media, and, certainly also important, gaining access to public funds. Third, measures of trafficking are considered to be relevant for the purpose of ­evaluating the impact of policies designed to prevent trafficking or to reduce the adverse consequences of trafficking for victims. Within the context of evaluation, solid measures of trafficking are necessary for the identification of causal effects, but also for the general description and the analysis of changes in the phenomenon of human trafficking. However, measures of trafficking also have become relevant in the assessment of (anti-) prostitution policies. Here, it has been argued that abolitionist policies, such as those adopted in Sweden, result in less trafficking, while toleration policies would fuel trafficking for the purpose of prostitution.13 Fourth, measures of trafficking are of course needed when testing theories of human trafficking. But measures of trafficking are rarely implemented with the goal of ­testing theoretical assumptions. Estimates on the prevalence of trafficking, the revenue

7 N Jakobsson and A Kotsadam, The Law and Economics of Sex Slavery: Prostitution Laws and Trafficking for Sexual Exploitation (Gothenburg, University of Gothenburg, 2010) 2. 8 UNHCR, Combatting Human Trafficking: Overview of UNHCR Anti-trafficking Activities in Europe (Geneva, Bureau for Europe Policy Unit, 2005) 7. 9 https://2009-2017.state.gov/j/tip/rls/rm/2016/251006.htm. 10 ILO, Profits and Poverty: The Economics of Forced Labour (Geneva, ILO, 2014) 7. 11 UNODC, Global Report on Trafficking in Persons 2014 (New York, United Nations, 2014) 12. 12 ILO, Profits and Poverty (2014) 6. 13 SY Cho, A Dreher and E Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 41 World Development 67.

Measuring Human Trafficking  39 g­ enerated through trafficking and the low number of criminal prosecutions and convictions in general are seen as supporting a ‘rational choice’ approach to human trafficking. High profits and low transaction costs (in terms of the risk of criminal prosecution) are perceived to fuel organised crime and criminal networks.14 When looking into the literature and research on human trafficking, the most commonly found complaint concerns the ‘scarcity of reliable and comparable data’.15 Despite such concerns raised in virtually all texts and documents related to human trafficking, scarcity of data does not prevent the production and use of figures (called ‘estimates’) and the implementation of research on human trafficking which aims at precise knowledge on how much trafficking occurs (globally). In fact, many documents supposedly dealing with measuring human trafficking suffer from serious problems. In a text published in 2010 on measuring trafficking, a table on sources of ‘estimates’ on trafficking by the US Department of State is displayed and one finds besides ‘interviews’ also ‘emails’ and ‘access data base’.16 While it is certainly not surprising that ‘estimates’ (or numbers) are conveyed through an email (or simply paper mail) or that such estimates are entered into an access database (or a SPSS data file), it is simply not comprehensible why a data medium should be classified as a source of an estimate. Most of the estimates based on such sources are just examples of ‘garbage in – garbage out’ processes and they underline the view that ‘imagination seems to have taken the place of sound empirical studies’.17 However, this lack of empirical evidence does not stop researchers and advocacy groups from making policy recommendations. And such recommendations are based on a two-track approach which assembles (global) quantitative data on trafficking with qualitative accounts (or images) of victims of forced prostitution, child labour and servitude in sweatshops. While the reliability (and comparability) of data on trafficking receives attention, less scrutiny is devoted to the question of data validity. But it is particularly the problem of validity which results in problems that are far more important than problems of reliability. Validity of measurement is linked to the question of what should be measured and whether the data retrieved in fact measure the phenomenon in which research is interested. The question of validity thus refers first to the decision about what should be measured and second to the need of a clear definition of the variable to be measured. Here, two pitfalls emerge: first, with respect to trafficking for the sex trade, the question of whether and how voluntary and involuntary prostitution may be distinguished continues to raise value and moral conflicts;18 and, second, both legislation on trafficking for labour and for prostitution has resulted in criminal offence statutes which, for various reasons, are difficult to apply in practice and difficult to operationalise for research purposes.

14 Centre for Social Justice, A Modern Response to Modern Slavery (2015). 15 Cho, Dreher and Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 67; MN Datta and K Bales ‘Slavery in Europe: Part 2, Testing a Predictive Model’ (2014) 36 Human Rights ­Quarterly 277, 279. 16 AJ Gould, From Pseudoscience to Protoscience: Estimating Human Trafficking and Modern Forms of Slavery (Lincoln, NE, University of Nebraska, 2010) 20. 17 SX Zhang, ‘Beyond the “Natasha” Story: A Review and Critique of Current Research on Sex Trafficking’ (2009) 10 Global Crime 178, 185. 18 M Farley, ‘Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know in Order to Keep the Business of Sexual Exploitation Running Smoothly’ (2006) 18 Yale Journal of Law and Feminism 109.

40  Hans-Jörg Albrecht II.  APPROACHES TO MEASURING HUMAN TRAFFICKING

A.  The (Police) Statistics Approach Most studies and accounts of human trafficking are either completely or partially based on official (police) statistics.19 This fits into the general approach of measuring crime adopted in criminology. Accounting for human trafficking on the basis of police statistics is thus no different from mainstream analysis of other types of crime. If research aims at counting the incidence of offences, then in many European countries the offenders and victims police statistics also provide basic information on human trafficking.20 So do other criminal justice statistics which account for prosecutorial investigations (and decisions) and conviction/sentencing. Eurostat (2013) has summarised the efforts (and projects) aimed at generating meaningful and comparable statistical measures at the EU level. The guiding principle of measuring is immediately outlined in the Eurostat report, which states that the approach is ‘victim-centred, gender-specific and focusing on the best interests of the child’.21 Measurement thus aims at counting victims and describing victims and generating annual figures on the incidence and prevalence of trafficking such victims. The executive summary of the Eurostat report gives such numbers with respect to how many victims have been counted from 2008 to 2010 in those EU countries which could deliver data on how many women, men and children have been affected by sex and labour trafficking, and where these victims came from. This and other statistical information is provided before confirming that ‘the European Union currently lacks reliable and comparable statistical information on trafficking in human beings’.22 The reasons why reliable and comparable information is not available are easily identified: differences in criminal codes and differences in the reporting and monitoring systems. This does not come as a surprise. Police statistics and other criminal justice information systems differ across the EU not only with respect to human trafficking but also with respect to the whole range of criminal offences covered in the criminal codes. In fact, the obvious problems in establishing an EU-wide statistical system to collect comparable data on crime are not encountered here for the first time. Comparability of data poses even bigger problems in the case of human trafficking because of the complex normativities involved and the dependence of criminal investigations in this field from proactive policing.23 ­More­over, trafficking offence statutes overlap partially with offence statutes which penalise the exploitation of prostitutes, for example. However, even if it would be possible to create a uniform system of police statistics, the question would remain as to whether this would result in a convincing measure of trafficking.

19 A Di Nicola and A Cauduro, ‘Review of Official Statistics on Trafficking in Human Beings for Sexual Exploitation and Their Validity in the 25 EU Member States from Official Statistics to Estimates of the Phenomenon’ in E Savona and S Stefanizzi (eds), Measuring Trafficking: Complexities and Pitfalls (New York, Springer, 2007). 20 National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, Trafficking in Human Beings. Visible and Invisible: A Quantitative Report 2007–2011 (The Hague, BNRM, 2013) 35. 21 Eurostat, Trafficking in Human Beings (Brussels, European Commission, 2013) 9. 22 Eurostat, Trafficking in Human Beings (2013) 16. 23 M Verhoefen and B van Gestel, ‘Human Trafficking and Criminal Investigation Strategies in the Amsterdam Red Light District’ (2011) 14 Trends in Organized Crime 148.

Measuring Human Trafficking  41 Criminology has long dealt with the question of what police statistics can tell us about crime, criminal offenders and victims. The response was to implement victimisation surveys which avoid the problem of unreported crime and in particular the problem of changing conditions of crime reporting (by victims), crime investigation and control, as well as counting crimes (and offenders and victims) and entering cases into information systems. Police-recorded crime and criminal justice data on prosecution, conviction and sentencing provide for information on how criminal law is implemented. Trends in police-recorded crime cannot be interpreted without resorting to additional information on the reporting behaviour of victims and investigation practices of the police. In particular, statistics of those crimes which come to the attention of the police as a result of proactive policing do not lend themselves to the description of the phenomenon of trafficking, but should be regarded as providing information on how this criminal offence statute is applied. The magnitude and consequences of the selection bias are not known and therefore cannot be controlled for. It is thus also not possible to make assumptions on the proportion of trafficking cases (or victims) which come to the attention of the police or prosecution services without survey data covering trafficking experienced by individuals and responses in terms of notification of the police. So, it is highly questionable to make assumptions based on the proportion of cases coming to the attention of the police. In the Netherlands, this proportion has been estimated to be five per cent, although no basis is provided from which such an estimate could be derived.24 Official crime and court statistics generate valid information about how criminal offence statutes are implemented, but they do not provide for valid cross-sectional or longitudinal information about the phenomenon itself. Longitudinal data from police therefore cannot be interpreted as reflecting trends in trafficking, trafficking victims or offenders, as changes in the numbers might be caused by changes in recording practices or more investments in policing red-light districts etc.25 However, the study of some aspects of trafficking may be based on official information. Some police forces in Europe publish so-called trafficking situation reports which contain sometimes a presentation of cases and information on modus operandi. Such information may be used to describe recruitment techniques, for example. Police-based information may also result from coordinated and targeted investigation strategies. The results of such investigations in the UK demonstrate that it is in fact difficult to identify cases of sex trafficking. Operation ‘Pentameter’ (1 and 2), which stretched over a period of six months, after raiding some 822 brothels, flats and massage parlours, resulted in 15 convictions. Out of these 15 convictions, 10 were for crimes which did not involve coercion. So, ultimately five persons were convicted for acts which fell under the definition of trafficking; however, investigations against these persons had started before ‘Pentameter’ became operational.26 It was suggested that an ‘EU Monitoring Agency on Trafficking’ be established with national focal points responsible for collecting ‘reliable’ (and standardised) statistical

24 National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, Trafficking in Human Beings (2013) 21. 25 ibid 39, 62. 26 www.theguardian.com/uk/2009/oct/20/government-trafficking-enquiry-fails.

42  Hans-Jörg Albrecht data on trafficking.27 The blueprint for this proposal is, of course, the EU monitoring centre for drugs (EMCDDA). It will of course face other problems, as standardised statistical data on trafficking would rely first of all on police information systems which are notoriously unreliable and in particular are not comparable across Europe (and the EU). The quest to implement standardised data collection does not seem to be a feasible approach for the collection of valid and reliable data, considering in particular the fruitless attempts to collect EU-wide comparable hate crime data. B.  The Victim Assistance (Service-Centred) Approach Victim assistance schemes and organisations catering to victims’ needs have mushroomed since the 1980s. The same can be observed for specialised organisations that focus on victims of trafficking. Such organisations will routinely collect information about their customers – those who approach these organisations for support. Data and statistics are subject to selection processes which will be different from those shaping police statistics, but it is also not known why victims will choose to approach victim assistance facilities. C.  The Publicly Available Information Approach (Open Sources) The UNODC has established a database on trafficking which makes use of ‘publicly available information’.28 The process of data collection started with identifying ‘source institutions’ (organisations providing information on trafficking) amounting to N = 113. These source institutions cover a wide range of organisations which publish information on human trafficking, which was defined on the basis of the ‘trafficking protocol’ (Palermo Convention on Transnational Crime). The institutions have been classified into ‘government and criminal justice/intelligence agencies’, ‘international organisations (UN, CoE, EU, Europol, Interpol etc)’, ‘NGOs’, ‘research institutes/universities’ and ‘news agencies/websites, newspapers’. The information entered in the database does not refer to cases or to the number of trafficked persons or traffickers. The information covers rather general aspects in terms of how a country was mentioned in a report, study etc as a country of destination, transit or origin. Furthermore, information is collected on whether trafficking concerns women, men or children, as well as the purpose of trafficking (prostitution or labour), and the gender and nationality of traffickers. Ultimately, the database thus contains a set of binary information not on cases, but on reports on trafficking (N = 4,950). A citation index then classifies countries into very low, low, medium, high and very high (with respect to origin, transit and destination). The report discusses the limitations of the data, particularly from the viewpoint of biases.29

27 G Vermeulen, ‘The Long Road from Rhetoric to Evidence on Trafficking in Human Beings: About Research Efforts to Prepare Proper EU Monitoring on the Matter’ in Savona and Stefanizzi (eds), Measuring Trafficking (2007) 110. 28 UNODC, Trafficking in Persons: Global Patterns (Vienna, UNODC, 2006) 110. 29 UNODC, Trafficking in Persons (2006) 118.

Measuring Human Trafficking  43 As most of the reports (approximately 96 per cent) originate geographically in Europe and North A ­ merica or international organisations, also due to language restrictions, a strong bias towards Europe and North America as countries of destination must be expected. However, the question of what in fact is measured by collecting data from sources ranging from newspapers to research reports seems to be even more important. In fact, the measure evidently produces information on how much attention is paid to trafficking issues by various organisations, how that attention is implemented (in terms of publications) and how information on trafficking is presented. The measure does not account for various aspects of trafficking itself. Thus, the title of the report ‘Trafficking in Persons: Global Patterns’ is certainly misleading; rather, it should be ‘Reporting on Trafficking in Persons: Regional Patterns’. An ‘Open Source’ approach has recently also been adopted by Europol to ‘estimate’ the profits derived from human trafficking.30 After stating that it is challenging to estimate such profits and that European police forces are not able to come forward with reliable figures, it is assumed that ‘open sources’ would provide some assessments on the possible scale of such profits globally.31 When looking at these ‘open sources’, these shrink immediately to figures provided by the ILO.32 These figures result from a ‘capturerecapture’ methodology discussed below, but are essentially based on open sources (which are defined by reports – in particular, media reports and, it can be assumed, also police reports).33 D.  Searching for Proxies In a study aimed at evaluating the impact of prostitution legislation on trafficking in selected countries of the EU, an approach was adopted which was based on estimating the ratio between police (and expert)-based accounts of human trafficking and the dark field number of trafficked persons.34 Despite numerous claims that police statistics on human trafficking (in particular, from Germany, the Netherlands etc) are characterised by high levels of ‘reliability’, there is no sound basis for such claims as police data on trafficking are certainly not consistent measures because they are dependent on the resources devoted to the investigation of human trafficking, as well as on various other conditions which affect police counting of trafficking victims. The only information provided as regards assessment of reliability concerns the following statement: ‘when the review has shown that there are official databases on victims, offenders and offences, reliability is considered high’.35 It is evident that this cannot be considered to

30 Europol, The THB Financial Business Model: Assessing the Current State of Knowledge July 2015 (The Hague, Europol, 2015) 5. 31 Europol, The THB Financial Business Model (2015) 5. 32 P Belser, Forced Labour and Human Trafficking: Estimating the Profits (Geneva, ILO, 2005); ILO, Profits and Poverty: The Economics of Forced Labour (Geneva, ILO, 2014). 33 ILO, ILO Global Estimate of Forced Labour: Results and Methodology (Geneva, ILO, 2012) 29. 34 TRANSCRIME, Study on National Legislation on Prostitution and Trafficking in Women and Children: Final Study (Brussels, European Parliament, 2005). 35 TRANSCRIME, Study on National Legislation on Prostitution and Trafficking in Women and Children (2005) 59.

44  Hans-Jörg Albrecht be a serious attempt to account for reliability. However, it is not clear from the study whether in fact ‘reliability’ was meant, as the more important question concerns the validity of police data (do police data on trafficking measure trafficking or something else?). Today, there is certainly a consensus that the validity of police data in this field is rather weak when it comes to measuring trafficking, as police data reflect (and measure) the work of police and not the phenomenon itself. The validity of police data on trafficking is strong if such data are interpreted as showing what police investigated and defined as trafficking. The ratio was then defined through the use of victimisation data (and experts’ assessments). The ‘starting point’ for estimating the ratio was the British Crime Survey,36 which also collects data on rape and sexual assault. The ratio between reported and unreported rapes in the British Crime Survey was calculated in the 2002 report as 1:5. Notwithstanding the validity problems encountered by measuring sexual assault and rape in victimisation surveys, it is certainly not acceptable to conclude that a measure of self-reported rape victimisation can be used as a proxy for unreported trafficking cases. However, the 1:5 ratio was taken as a ‘starting point’ only. It was then asserted that the ratio for trafficking victims should instead be located between 1:10 and 1:20, considering ‘the lack of trust in the authorities shown by the victims of trafficking, their illegal status in the destination country and their isolation; their subjugation to the traffickers, the covert nature of the trafficking’ (‘It accordingly seemed likely that the ratio between the victims recorded and the real number of victims could oscillate between 1/10 and 1/20’).37 There is no argument given to support the inflation of the ratio (as victims of sexual offences are likewise faced with strong incentives not to report the victimising incident). The national estimates were thus determined through multiplying the number of police recorded (or NGO-registered) victims by 10 and 20, then arriving at a ‘minimum’ and a ‘maximum’ number of trafficking victims. In order to make the estimates comparable, the estimated number of victims was then expressed by calculating the number of trafficking victims per 100,000 males aged 15 and older (‘potential clients’). After all, however, there was no real need to resort to this kind of calculation as the multiplier (10 and 20) is the same for all countries included. Yet, for some countries, police-based data on victims were not available. For these, estimates from NGOs have been taken. But such estimates partially cannot be understood as there is no information about how such estimates have been calculated.38 In the case of France, Italy and Lithuania, they are based on the number of prostitutes who have contacted an NGO or programmes catering to ­trafficked women.39

36 A Myhill and J Hallen, Rape and Sexual Assault of Women: The Extent and Nature of the Problem. ­Findings from the British Crime Survey, Home Office Research Study No 237 (London, Home Office, 2002). 37 TRANSCRIME (n 34) 11. 38 See, for example, the Czech Republic in TRANSCRIME (n 34) 66 or the particularly interesting statement for Sweden: ‘a vague estimate which is suspected to be an underestimate’; TRANSCRIME (n 34) 100: ‘SNCIP give vague estimates in their reports on victims and suspect that their estimate (from at least 2002) was an ­underestimate’; Austria in TRANSCRIME (n 34) 106. 39 TRANSCRIME (n 34) 84, 89, 95.

Measuring Human Trafficking  45 E.  A Hidden Population Approach A Vera Institute of Justice pilot project40 points – after having stated the apparent lack of data on trafficking – first of all to the problem of identifying ‘hidden populations’. The aim was to develop a standardised ‘screening tool’ to be (uniformly) employed by the police, social workers etc (service providers) when interviewing possible victims of trafficking. Hidden populations are in fact accessible only through those persons/institutions most likely to get into contact with them. The approach is then based on a definition of trafficking which is suited to operationalisation and subsequent use in data collection. It is argued that the definition and operationalisation of trafficking share (though on a different level) the problems of definition encountered in all crime-related victimisation research, which in general is fraught with ideology and normativity. In order to avoid obstacles to disclosing information on trafficking by victims, it is advised to develop ‘behaviourally’ specific questions which also seem to be better suited for persons who do not speak the country’s language or only do so poorly. Another problem which affects measurement concerns ‘duplicates’. Here it was suggested to collect enough demographic data (avoiding disclosure of identity, but allowing identification of a duplicate). F.  ‘Measuring the Non-Measurable’: The Moving Target Approach The well-known problems of official statistics on trafficking have evidently caused the publication of a text which ultimately suggests ‘the creation of a data bank assembling, rationalising and integrating all materials produced on the theme’ of trafficking.41 This proposal is evidently flirting with an attempt at ‘measuring the unmeasurable’ and conceding that there are either questions of definition and operationalisation on the one hand and methodological issues on the other hand, which let the number of trafficking cases float freely. But the ‘moving target’ is then captured again with the proposal of creating a comprehensive data bank into which all ‘materials produced on the theme’ are entered after a process of somehow reviewing the information contained in the material. However, the process of review remains obscure. G.  Household Surveys in Countries of Origin As human trafficking involves victims, victim surveys certainly represent an approach which can be useful in efforts of estimating the size of the problem of trafficking. Of course, victimisation in the form of trafficking differs from conventional forms of victimisation such as theft or assault. Trafficking involves a certain period of time and 40 NA Weiner and N Hala, Measuring Human Trafficking: Lessons from New York City (New York, Vera Institute of Justice, 2008). 41 S Stefanizzi, ‘Measuring the Non-measurable: Towards the Development of Indicators for Measuring Human Trafficking’ in Savona and Stefanizzi (n 19) 52.

46  Hans-Jörg Albrecht normally is not limited to a short interference. Trafficking is certainly not of ‘indeterminate duration’,42 but it varies in terms of time.43 Duration of trafficking (or being forced into labour or sex work under trafficking conditions) is an element of seriousness which can (and must) be measured.44 Studies modelled on victim surveys are based on samples and questionnaire/interview items which seek to determine whether respondents and/or family members have been victims of trafficking. Again, the problem here is the normative complexity behind the concept of trafficking and it is doubtful whether items such as ‘How many members of your close family travelled abroad because they were offered a domestic or nursing job, but upon arrival were locked and forced to work for no pay?’ or ‘ … offered a job in construction, agriculture etc. … and forced to work for no or little pay?’ or ‘How many members of your close family travelled abroad because they were offered employment, but upon arrival to a country of destination their passport was taken away and they were forced to work in a sex business?’45 can capture human trafficking for labour or sex purposes. In the current household surveys,46 the focus is then obviously on the lifetime prevalence of victimisation through trafficking, which makes it difficult to make estimates beyond statements that a certain number of people have been (self-)identified as being victims of trafficking once in a lifetime. However, the data presented by Pennington et al47 are not broken down by no pay or little pay, or by sex, construction or other business. The text starts with a dramatic narrative of a victim of sex trafficking: Jane was immediately transported abroad and prior to arriving at her destination, was raped, beaten, humiliated, and broken in spirit … Jane was forced to meet a quota of sex clients each evening, seven days a week. Sometimes she would see as many as twenty clients a day, earning as much as $2,000 in an eight to ten hour period for her owner.48

It is then asserted that ‘the preceding story is representative of events tragically happening around the world, perhaps millions of times per year’.49 But data analysis and discussion end with flatly stating general estimates of victims of labour and sex trafficking (which includes ‘being forced to work for little pay’).50 When looking at the more differentiated presentation of the survey data published by GfK Ukraine,51 it can be noted that for Belarus and Bulgaria, none of the respondents identified themselves as having been a victim of sex trafficking, for Ukraine and Moldova, one respondent respectively declared

42 MN Datta and K Bales, ‘Slavery in Europe: Part 1, Estimating the Dark Figure’ (2013) 35 Human Rights Quarterly 817, 817. 43 See, for example, National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (n 20) 70, where for trafficking cases known to the police in 2009, a minimum duration of four days and a maximum of more than eight years was reported; the general average was 12.3 months. 44 National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children (n 20) 31. 45 See JR Pennington et al, ‘The Cross-national Market in Human Beings’ (2009) 29 Journal of ­Macromarketing 119, 129. 46 GfK Ukraine, Human Trafficking Survey: Belarus, Bulgaria, Moldova, Romania, and Ukraine (Kiev, GfK, 2006); Pennington et al, ‘The Cross-national Market in Human Beings’ (2009), covering Ukraine, Belarus, Moldova, Romania and Bulgaria. 47 Pennington et al (n 45). 48 ibid 119. 49 ibid 119. 50 ibid 130. 51 GfK Ukraine, Human Trafficking Survey (2006).

Measuring Human Trafficking  47 himself or herself a lifetime victim of sex trafficking, while in the Romanian sample, two respondents were classified as victims of sex trafficking.52 The survey data used by Pennington et al53 have been used to create estimates not only of trafficking but also of ‘slavery’ for 37 European countries.54 The estimates are based on the estimates generated by Pennington et al,55 as well as an estimate for the US in 2010 (17,500 persons trafficked (for prostitution and labour) into the US each year, a number which cannot be traced in the cited document56) and for the UK (in 2003, 4,000 persons were trafficked for prostitution – the validity of this figure according to the document cited cannot be judged).57 However, it is not clear how to estimate the number of trafficked persons in Germany or Italy (or persons held in slavery) based on household surveys carried out in Ukraine or Bulgaria as well as figures for the UK and the US (based on completely different sources) and how to extrapolate this from the items used to measure trafficking to cases of slavery. If ‘enslavement is the total control of one person by another person’,58 then, of course, the items introduced by Pennington et al59 will not be able to capture this particular meaning of ‘slavery’. H.  Rare Incidents and Hidden Populations As general victim surveys are faced with significant limitations in terms of identifying victims of human trafficking, a way out of this problem has been sought by applying a particular method devised to study hidden and difficult-to-access populations (capturerecapture). The capture-recapture method has been developed in biology with the aim of estimating the population of species which are rare and/or extremely elusive. In criminological research, the capture-recapture method has been used to estimate, for example, the size of heroin addicted populations. However, there are certain assumptions that accompany the capture-recapture method which do not fit the particulars of victims of trafficking.60 The ILO asserts that its estimates are based on a ‘capture-recapture’ method,61 but the incomplete information which is provided (and which does not make it possible to replicate the study) rather suggests that the method is far from what is regularly implemented as ‘capture-recapture’ procedure in biology (or the social sciences). The data collection method simply consists of establishing two research groups (both capable of accessing documents in various languages) and tasking them with finding information

52 ibid 50. 53 Pennington et al (n 45). 54 MN Datta and K Bales, ‘Slavery in Europe: Part 2, Testing a Predictive Model’ (2014) 36 Human Rights Quarterly 277, 285. 55 Pennington et al (n 45). 56 See Department of State, Trafficking in Persons Report, 10th edn (Washington DC, Department of State, 2010). 57 House of Lords and House of Commons – Joint Committee on Human Rights, Human ­Trafficking. Twenty-Sixth Report of Session 2005–06. Volume I. Report, Together with Formal Minutes (London, The Stationery Office, 2006) 28. 58 Datta and Bales, ‘Slavery in Europe: Part 1’ (2013) 823. 59 Pennington et al (n 45). 60 See, for example, ibid 126–27. 61 ILO, ILO Global Estimate of Forced Labour (2012).

48  Hans-Jörg Albrecht on ‘reported cases of labour trafficking’ in a variety of sources (documents, publications, the internet, the media etc). So, if both research groups have the same resources (number of researchers, access to sources, language capabilities etc) and if research groups are tasked with screening the same sources and are provided with the same data collection instrument, then the extent of overlapping cases is simply a function of the time available for both groups to identify the cases. As the cases cannot move (they are frozen in the documents or on paper) and in principle all cases are known, the extent of overlapping essentially tells us something about the capacity of the case identification procedure to capture the same cases. The capture-recapture method is then combined with an estimate of the relationship between the known and unknown cases of human trafficking, which is taken from surveys of self-identified trafficked persons (returned to their home countries) carried out in four countries. On the basis of the survey dataset, the ratio between known and unknown cases is 1:27.62 III.  WHAT IS MEASURED AND WHAT SHOULD BE MEASURED?

While it is not difficult to predict that the search for a true global figure of human trafficking will continue, it is also not difficult to suggest that this avenue of research will lead nowhere. In a study on Chinese sex workers at different locations abroad, Chin and Finckenauer concluded that the word ‘trafficker, as it is often utilised in the sex trafficking literature to refer to the key person who is recruiting, transporting, and exploiting female victims, is a misnomer’.63 In fact, placing the focus on a chain of enabling and facilitating recruitment, transportation, harbouring, placement and exploitation (trafficking) misses the most relevant point, which is the sex markets and how they operate. The introduction of ‘trafficking’ instead results in odd research aimed at finding out global figures of trafficked women (or slaves) or how much demand exists for ‘trafficked prostitutes’ compared to the demand for ‘common’ prostitutes.64 However, research on sex markets (and prostitution) is scarce. For most countries there is not even any rudimentary data on how many actors in what roles are involved in the organisation of commercial sex work.65 The absence of research on sex markets and on those commercial and industrial activities where undocumented labour and exploitive conditions prevail (for example, construction, agriculture and domestic services) has significant consequences for the assessment of anti-trafficking (and anti-prostitution) policies. An example can be drawn from Sweden, where demand for prostitution was penalised in 1999. While advocates of the abolition base positive assessments of the ban on prostitution on estimates of the number of in-house and street prostitutes (claiming a sharp decline in p ­ rostitution

62 ILO (n 33) 39. 63 KL Chin and JO Finckenauer, ‘Chickenheads, Agents, Mommies, and Jockeys: The Social Organization of Transnational Commercial Sex’ (2011) 56 Crime, Law and Social Change 463, 482. 64 A Cauduro, ‘Review of the Research Studies on the Demand for Prostitution in the European Union and Beyond’ in A Di Nicola, A Cauduro, M Lombardi and P Ruspini (eds), Prostitution and Human Trafficking (New York, Springer, 2008) 21. 65 R Ruhne, ‘Forschen im Feld der Prostitution’ (2008) 19 Soziale Probleme 72; B McCarthy et al, ‘Regulating Sex Work: Heterogeneity in Legal Strategies’ (2012) 8 Annual Review of Law and Social Science 255, 268.

Measuring Human Trafficking  49 and in the number of women trafficked for sexual purposes in the period after penalisation, in contrast to a much higher level (of trafficking) in Denmark and in Germany),66 partisans of legalisation point to police reports that indicate that the number of Thai massage parlours alone in the areas around Stockholm increased from 90 in 2009 to 240 in 2011.67 REFERENCES

Belser, P, Forced Labour and Human Trafficking: Estimating the Profits, Working Paper 42 (Geneva, ILO, 2005). Cauduro, A, ‘Review of the Research Studies on the Demand for Prostitution in the European Union and Beyond’ in A Di Nicola, A Cauduro, M Lombardi and P Ruspini (eds), Prostitution and Human Trafficking (New York, Springer, 2008) 5–21. Centre for Social Justice, A Modern Response to Modern Slavery (London, Centre for Social Justice, 2015). Chin, KL and Finckenauer, JO, ‘Chickenheads, Agents, Mommies, and Jockeys: The Social Organization of Transnational Commercial Sex’ (2011) 56 Crime, Law and Social Change 463. Cho, SY, Dreher, A and Neumayer, E, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 41 World Development 67. Datta, MN and Bales, K, ‘Slavery in Europe: Part 1, Estimating the Dark Figure’ (2013) 35 Human Rights Quarterly 817. Datta, MN and Bales, K, ‘Slavery in Europe: Part 2, Testing a Predictive Model’ (2014) 36 Human Rights Quarterly 277. Department of State, Trafficking in Persons Report, 10th edn (Washington DC, Department of State, 2010). Di Nicola, A and Cauduro, A, ‘Review of Official Statistics on Trafficking in Human Beings for Sexual Exploitation and Their Validity in the 25 EU Member States from Official Statistics to Estimates of the Phenomenon’ in E Savona and S Stefanizzi (eds), Measuring Trafficking: Complexities and Pitfalls (New York, Springer, 2007) 73–94. European Police Office (Europol), The THB Financial Business Model: Assessing the Current State of Knowledge July 2015 (The Hague, Europol, 2015). Eurostat, Trafficking in Human Beings (Brussels, European Commission, 2013). Farley, M, ‘Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know in Order to Keep the Business of Sexual Exploitation Running Smoothly’ (2006) 18 Yale Journal of Law and Feminism 109. Gesellschaft für Konsumforschung (GfK) Ukraine, Human Trafficking Survey: Belarus, Bulgaria, Moldova, Romania, and Ukraine (Kiev, GfK, 2006). Gould, AJ, From Pseudoscience to Protoscience: Estimating Human Trafficking and Modern Forms of Slavery (Lincoln, NE, University of Nebraska, 2010).

66 Cho, Dreher and Neumayer (n 13). 67 Swedish National Police Board, Situation Report 13: Trafficking in Human Beings for Sexual and Other Purposes (Stockholm, RPS, 2013) 13.

50  Hans-Jörg Albrecht House of Lords and House of Commons – Joint Committee on Human Rights, Human Trafficking. Twenty-Sixth Report of Session 2005–06. Volume I. Report, Together with Formal Minutes (London, The Stationery Office, 2006). International Labour Organization (ILO), ILO Global Estimate of Forced Labour: Results and Methodology (Geneva, ILO, 2012). ——. Profits and Poverty: The Economics of Forced Labour (Geneva, ILO, 2014). Jakobsson, N and Kotsadam, A, The Law and Economics of Sex Slavery: Prostitution Laws and Trafficking for Sexual Exploitation (Gothenburg, University of Gothenburg, 2010). Lăzăroiu, S and Alexandru, M, Who is the Next Victim? Vulnerability of Young Romanian Women to Trafficking in Human Beings (Bucharest, IOM, 2003). McCarthy, B et al, ‘Regulating Sex Work: Heterogeneity in Legal Strategies’ (2012) 8 Annual Review of Law and Social Science 255. Myhill, A and Hallen, J, Rape and Sexual Assault of Women: The Extent and Nature of the Problem. Findings from the British Crime Survey, Home Office Research Study No 237 (London, Home Office, 2002). National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, Trafficking in Human Beings. Visible and Invisible: A Quantitative Report 2007–2011 (The Hague, BNRM, 2013). Oude Breuil, BC et al, ‘Human Trafficking Revisited: Legal, Enforcement and Ethnographic Narratives on Sex Trafficking to Western Europe’ (2011) 14 Trends in Organised Crime 30. Pennington, JR et al, ‘The Cross-national Market in Human Beings’ (2009) 29 Journal of Macromarketing 119. Ruhne, R, ‘Forschen im Feld der Prostitution’ (2008) 19 Soziale Probleme 72. Stefanizzi, S, ‘Measuring the Non-measurable: Towards the Development of Indicators for Measuring Human Trafficking’ in E Savona and S Stefanizzi (eds), Measuring Trafficking. Complexities and Pitfalls (New York, Springer, 2007) 45–53. Swedish National Police Board, Situation Report 13: Trafficking in Human Beings for Sexual and Other Purposes (Stockholm, RPS, 2013). TRANSCRIME, Study on National Legislation on Prostitution and Trafficking in Women and Children: Final Study (Brussels, European Parliament, 2005). Ulrich, CJ, Alien-Smuggling and Uncontrolled Migration in Northern Europe and the Baltic Region (Helsinki, HEUNI, 1995). United Nations High Commissioner for Refugees (UNHCR), Combatting Human Trafficking: Overview of UNHCR Anti-trafficking Activities in Europe (Geneva, Bureau for Europe Policy Unit, 2005). United Nations Inter-Agency Project on Human Trafficking (UNIAP), Guide to Ethics and Human Rights in Counter-trafficking (Bangkok, Regional Project Management Office, 2008). United Nations Office on Drugs and Crime (UNODC), Trafficking in Persons: Global Patterns (Vienna, UNODC, 2006). ——. Global Report on Trafficking in Persons 2014 (New York, United Nations, 2014). Verhoefen, M and van Gestel, B, ‘Human Trafficking and Criminal Investigation Strategies in the Amsterdam Red Light District’ (2011) 14 Trends in Organized Crime 148.

Measuring Human Trafficking  51 Vermeulen, G, ‘The Long Road from Rhetoric to Evidence on Trafficking in Human Beings: About Research Efforts to Prepare Proper EU Monitoring on the Matter’ in E  Savona and S Stefanizzi (eds), Measuring Trafficking: Complexities and Pitfalls (New York, Springer, 2007) 107–23. Weiner, NA and Hala, N, Measuring Human Trafficking: Lessons from New York City (New York, Vera Institute of Justice, 2008). World Health Organization (WHO), The WHO Ethical and Safety Recommendations for Interviewing Trafficked Women (Geneva, WHO, 2003). Zhang, SX, ‘Beyond the “Natasha” Story: A Review and Critique of Current Research on Sex Trafficking’ (2009) 10 Global Crime 178. ——. ‘The Ethical Minefield in Human Trafficking Research: Real and Imagined’ in D Siegel and R de Wildt (eds), Ethical Concerns in Research on Human Trafficking (Cham, Springer, 2016) 85–96.

52 

4 Victims of Human Trafficking Considerations from a Crime Prevention Perspective RITA HAVERKAMP*

I. INTRODUCTION Trafficking of girls, also called trafficking of women, traite des blanches, white slave traffic, is a more popular, catch-phrase-like designation of the offence in question, shaped in the fight against the acts which are designated as morally reprehensible, but it is not a legal term … also the news of its modern development is to some degree a figment of someone’s imagination, which is propagandistically coloured and therefore not very reliable.1 (Translation by the author)

S

ince the early twentieth century, ‘white slavery’ has been the common term used to describe the commercial sexual exploitation of European girls and women taken abroad for this purpose (see the chapter by Lindsay Farmer in this volume). White slavery expressed ‘the vision of [Caucasian] women held in bondage against their will, of mysterious drugging and abductions of helpless young girls, and of unexplained disappearances of innocent and naive immigrants forced into lives of prostitution’.2 This vision reflected public perception but not reality, given the low number of proven cases of white slavery.3 This has led to pointing to the campaign against ‘white slavery’ as an early example of the type of ‘moral panic’ reflected in the above opening quote. The public is still fascinated by human trafficking, especially when it involves sexual exploitation. The mass media, non-governmental organisations (NGOs) and p ­ oliticians

* Thanks go to Harald Arnold for his comments and to the translation team of the German Association of University Professors (Deutscher Hochschulverband) for proofreading. 1 Bohne, ‘Mädchenhandel‘ in F Stier-Somlo and A Elster (eds), Handwörterbuch der Rechtswissenschaft – 4 (Berlin, Walter de Gruyter & Co, 1927) 1. 2 MD Beckman, ‘The White Slave Traffic Act: The Historical Impact of a Criminal Law Policy on Women’ (1984) 72 Georgetown Law Journal 1111, 1111. 3 AT Gallagher, The International Law of Human Trafficking (New York, Cambridge University Press, 2010) 56.

54  Rita Haverkamp therefore tend to exaggerate the numbers of the victimised.4 But even estimates of the number of trafficked individuals from more reliable sources diverge noticeably.5 ­Unreliable as the numbers are, it is generally accepted that the majority of victims remain unaccounted for (see the chapter by Hans-Jörg Albrecht in this volume). According to the Global Estimates of Modern Slavery, around 89 million people were victims of modern slavery worldwide between 2012 and 2016.6 Criminal justice systems worldwide fail to prosecute and convict traffickers: the 2017 United States Trafficking in Persons Report (US TIP) records only a global total of 14,897 prosecutions, 9,071 convictions and 66,520 victims in 2016 around the world.7 The small number of convicted traffickers and identified victims in the criminal justice system is emblematic of the gap between the profusion of international instrumentalities designed to combat trafficking and problematic antitrafficking enforcement. The elusive character of human trafficking complicates the (inter)national legal approach, which needs clear distinctions if it is to properly address the phenomenon. This ambiguity is especially marked for the dominant criminal justice and immigration control perspective.8 This ‘law and order’ approach not only stresses punishment, more vigorous law enforcement and more prosecutions ending in convictions,9 but it also relies on Christie’s famous stereotype of the ‘ideal victim’ for an over-simplified understanding of the victim.10 Sharply defining roles in dualistic terms of good and evil neglects other distinctions and evolving methods.11 ‘Offenders are also able to change their modus operandi in a way that can make it very hard to prosecute them under the legal definition of trafficking. This is seen, for example, in the recent ploy of the so-called “happy trafficking”, which refers to traffickers sending previously trafficked persons who are supposedly content with their experiences back home to find new recruits.’12 This example illustrates the victim–offender nexus on the one hand and the artificial perspective on the victim on the other. The focus on helpless, innocent victims, brutal offenders and situational as well as environmental attributes means that nuances are often disregarded in the prevention of human trafficking.13 Therefore, this chapter aims to differentiate the ‘ideal victim’ from the real individuals caught up in human trafficking, despite little being known about the overall victim

4 N Davies, Prostitution and Trafficking: The Anatomy of a Moral Panic’, The Guardian, 19 November 2009, https://www.theguardian.com/uk/2009/oct/20/trafficking-numbers-women-exaggerated. 5 United Nations Inter-Agency Project on Human Trafficking (UNIAP), www.no-trafficking.org/resources_ stats.html. 6 ILO, ILO Global Estimates of Modern Slavery: Forced Labour and Forced Marriage (Geneva, International Labour Office, 2017) 10. 7 US Department of State, Trafficking in Persons Report (US, Department of State, June 2017) 43. 8 C Morcom and A Schloenhardt, All about Sex?! The Evolution of Trafficking in Persons in International Law (Brisbane, University of Queensland Human Trafficking Working Group, 2011) 24. 9 Morcom and Schloenhardt, All about Sex?! (2011) 24. 10 N Christie, ‘The Ideal Victim’ in EA Fattah (ed), From Crime Policy to Victim Policy: Reorienting the Justice System (New York, St Martin’s Press, 1986) 19 ff. 11 BS Buckland, ‘More Than Just Victims: The Truth about Human Trafficking’ (March 2008) 15 Public Policy Research 43, 45. 12 D Nelken, ‘Human Trafficking and Legal Culture’ (2010) 43 Israel Law Review 479, 487. 13 R Haverkamp and M Kilchling, ‘Crime Prevention and the Victims – Lessons Learnt from Victimology’ in J Winterdyk (ed), Crime Prevention: International Perspectives, Issues, and Trends (Boca Raton, CRC Press/ Taylor & Francis Group, 2017) 405.

Victims of Human Trafficking  55 ­ opulation. How the ‘ideal victim’ is construed impacts societal acceptance, internap tional legal instruments, and statistics.14 This idealised image obscures the fact that there are various kinds of victimhood in human trafficking. Not only does the generic ‘ideal victim’ image influence criminal law, but it may also affect crime prevention practice if it concentrates mainly on supporting and aiding idealised victims.15 In conclusion, the chapter will suggest avenues for developing specific crime prevention programmes targeting victims of human trafficking, including expanded crime prevention strategies based on a nuanced view of how individuals become trafficking victims and that also take into account the social aspects of human trafficking, particularly its structural and socio-economic causes. II.  THE CONCEPT OF THE IDEAL VICTIM

The stereotypical ‘ideal victim’ is innocent, helpless, not complicit in the offence and has no personal direct or indirect connections to the crime or its perpetrators (see the chapter by Elina Pirjatanniemi in this volume).16 As developed by Christie,17 the stereotype has the following six attributes: the victim is (1) weak (female, sick, old or young); (2) reputable; (3) blameless; (4) controlled by an evil perpetrator; (5) not acquainted with nor related to the perpetrator; and (6) self-identified as a victim. In sum, the ‘ideal victim’ needs to be as innocent18 and as vulnerable as possible.19 Figure 4.1 presents a sample hierarchy of victimhood derived from the literature and suggests a ranking reflecting the victim’s vulnerability. Thus, a small child resides at the top of a ‘hierarchy of victimhood’, which represents a simplified, artificial perspective on the victim. Also ranked as highly vulnerable are the disabled, the sick and innocent females. This contrasts with the young, vigorous male or a member of a minority (eg, migrants, ethnic groups, the homeless and drug addicts), which do not fit the generic stereotypical narrative because they often have a history of previous blameworthy behaviour or because the role of victim and offender overlaps in them. While an innocent and weak victim is at the top of the hierarchy, the ‘undeserved’ or ‘rejected victim’ is relegated to the very bottom. The ‘ideal victim’ high up in the hierarchy benefits from emotional support from family and friends, from assistance rendered by victim aid organisations or from public sources, and is also eligible for financial compensation.20

14 M Wilson and E O’Brien, ‘Constructing the Ideal Victim in the United States of America’s Annual Trafficking in Persons Reports’ (2016) 65 Crime Law and Social Change 29, 30. 15 J Dignan, Understanding Victims and Restorative Justice (New York, Open University Press, 2005) 17. 16 eg, WG Skogan and MG Maxfield, Coping with Crime: Individual and Neighborhood Reactions (Los Angeles, Sage, 1981) 257 ff. 17 Christie, ‘The Ideal Victim’ (1986) 19 ff. 18 S Walklate, Imagining the Victim of Crime (Maidenhead, Open University Press, 2007) 28. 19 M Smolej, ‘Constructing Ideal Victims? Violence Narratives in Finnish Crime-Appeal Programming’ (2010) 6 Crime Media Culture 69, 70. 20 L Jägervi, ‘Who Wants to Be an Ideal Victim? A Narrative Analysis of Crime Victims’ Self-Presentation’ (2014) 15 Journal of Scandinavian Studies in Criminology and Crime Prevention 73, 73.

56  Rita Haverkamp Figure 4.1  Exemplary Hierarchy of Ideal Victimhood

child disabled or sick person innocent woman

elderly person

woman

man

young and strong man

member of subcultural group

A.  Social Recognition of Victimhood In human trafficking, a young, helpless and innocent woman forced into prostitution by powerful, organised men provides the optimal for the trafficking victim s­ tereotype.21 However, this image is constructivist and often not related to reality.22 The term ‘victim’ connotes a social status (Table 4.1); this ascription is the key to gaining recognition as a victim from his or her social surrounding.23 Table 4.1  Social Recognition as a Victim24 Self-identification as a victim Social recognition as a victim

Yes

No

Yes

Actual victim

Designated victim

No

Rejected victim

Non-victim

21 M de Angelis, Human Trafficking: Women’s Stories of Agency (Newcastle upon Tyne, Cambridge Scholars Publishing, 2016) 45–46. 22 E O’Brien, ‘Ideal Victims in Trafficking Awareness Campaigns’ in K Carrington, M Ball, E O’Brien and J  Tauri (eds), Crime, Justice and Social Democracy: International Perspectives (Basingstoke, Palgrave ­Macmillan, 2013) 322–24. 23 R Strobl, ‘Constructing the Victim: Theoretical Reflections and Empirical Examples’ (2004) 11 International Review of Victimology 295, 295 ff. 24 Strobl, ‘Constructing the Victim’ (2004) Table 1.

Victims of Human Trafficking  57 However, the individual in question first needs to acknowledge victimhood in order to obtain the socially conferred status with all that this subsequently implies. Some women reject being labelled as trafficking victims, either because they do not regard themselves as victims or because they refuse to be seen or identified as a victim (‘designated victim’). Back in their home country, individuals often conceal their experiences of being exploited and abused in the destination country for fear of being stigmatised.25 Others shy away from accepting victim status because they fear retaliation from the trafficker, revictimisation, deportation and/or law enforcement.26 For the self-identified victim, his or her suffering should be described in terms of the social definition of victimisation (‘actual victim’). Victims of human trafficking fulfil the aforementioned notion of victimhood best if they are small children and helpless, young, naïve, impoverished or disadvantaged women from under-developed or developing countries who have been forced into prostitution.27 In contrast, the ‘rejected victim’ fails to convince others of having suffered harm and is therefore deprived of sympathy and compassion. In effect, such an individual is denied victim status28 or may even have offender status attributed to him or her.29 In a human trafficking context, victims may be shunned because they are working ‘voluntarily’ (eg, as a prostitute or in a sweatshop) or because they are illegal economic migrants. The victim status may also be completely denied where there appears to be a victim–offender nexus.30 In human trafficking practice, it is not all that unusual for victims not only to be acquainted with or related to the traffickers, but also to change roles along the way and go over to the perpetrator’s side. Cultural and ethnic differences also play a key role when it comes to conferring social victim status on a trafficked person – for example, an individual might lay claim to this status in his or her destination country, but decline it in his or her home country. Here, bridal abduction and forced marriage in Kyrgyzstan is instructive: although treated as a criminal offence under the country’s laws, the practice nevertheless enjoys widespread popular acceptance in Kyrgyz society and is not reported and so is not prosecuted.31 Here, a gap between the social and legal recognition of victim status (Table 4.2) is evident. The social context in the example treats the practice more narrowly than does the criminal law. Conversely, violations of socially shared norms can be broader than applicable criminal sanctions. In Germany, the mass sexual attacks by North African-looking men during New Year’s Eve 2015/16 in Cologne were beyond the pale socially, but had mostly to be

25 G Tyldum, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1, 9. 26 JE McGaha and A Evans, ‘Where are the Victims? The Credibility Gap in Human Trafficking Research’ (2009) 4 Intercultural Human Rights Law Review 239, 244; G Tyldum, M Tveit and A Brunovskis, Taking Stock: A Review of the Existing Research on Trafficking for Sexual Exploitation, Report No 493 (Oslo, Fafo Institute for Applied International Studies, 2005) 67. 27 S Ćopić and B Simeunović-Patić, ‘Victims of Human Trafficking. Meeting Victims’ Needs?’ in J Winterdyk, B Perrin and P Reichel (eds), Human Trafficking: Exploring the International Nature, Concerns, and Complexities (Boca Raton, Taylor & Francis, 2012) 271. 28 C Greer, ‘News Media, Victims and Crime’ in P Davies, P Francis and C Greer (eds), Victims, Crime and Society (London, Sage, 2007) 22. 29 Strobl (n 23) 296. 30 Nelken, ‘Human Trafficking and Legal Culture’ (2010) 487. 31 N O’Neill Borbieva, ‘Kidnapping Women: Discourses of Emotion and Social Change in the Kyrgyz’ (2012) 85 Anthropological Quarterly 141, 141–69.

58  Rita Haverkamp treated as minor assaults under the law that either were not punishable or rose to the level of petty infractions.32 In Kyrgyz bridal abductions and forced marriages, the perpetrator is often known to the victim’s relatives or even cooperates with her parents. By contrast, the North African-looking men in Cologne were big, bad and unfamiliar foreigners who assaulted young, helpless, innocent German women. B.  Legal Recognition of Victimhood The recognition of trafficking victims also depends on the legal framework in destination countries (Table 4.2). Under Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime 2000 (hereinafter the Palermo ­Protocol), trafficked victims have been recruited, transported away from home, transferred, harboured or receipted of persons by threats, the use of force or other forms of coercion, abduction, fraud, deception, abuse of power or being put in a position of vulnerability, or the giving or receiving of payments or benefits to gain the consent of a person having control over another person, for the purpose of exploitation. The Protocol has been ratified by 170 Member States.33 The impact of this broad definition has been remarkable, even if national standards and their implementations differ considerably between ­countries.34 The Protocol stresses aid to women and children, but disregards men.35 Table 4.2  Legal Recognition of Victimhood36 Self-identification as a victim Legal recognition as a victim

Yes

No

Yes

Actual victim

Designated victim

No

Rejected victim

Non-victim

Although it is a highly politicised topic, human trafficking’s lack of a theoretical ­foundation makes it difficult to get at its roots (see the chapter by Claes Lernestedt in this volume).37 While numerous governments agree on the need to combat human ­trafficking,

32 In reaction, two new offences were codified in November 2016: sexual harassment in s 184i and offences committed by groups in s 184j of the German Criminal Code (for an overview, see K Papathanasiou, ‘Das reformierte Sexualstrafrecht – Ein Überblick über die vorgenommenen Änderungen’ (2016) 1  Kriminalpolitische Zeitschrift 133, 137); www.faz.net/aktuell/politik/inland/sexualstrafrecht-betatschen-istnicht-immer-strafbar-14007043.html. 33 See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18& clang=_en. 34 C Hoyle, M Bosworth and M Dempsey, ‘Labelling the Victims of Sex Trafficking: Exploring the Borderland between Rhetoric and Reality’ (2011) 20 Social & Legal Studies 313, 317; http://digital.library.ryerson.ca/ islandora/object/RULA:2047, 11. 35 P Smiragina, ‘Misidentification of Men within the Human Trafficking Discourse’ in T Petray and A Stephens (eds), The Annual Conference of the Australian Sociological Association – Refereed Proceedings of TASA 2015 Conference (Cairns, TASA, 2015) 124. 36 Inspired by Strobl (n 23) Table 1. 37 Tyldum, ‘Limitations in Research on Human Trafficking’ (2010) 7.

Victims of Human Trafficking  59 their views diverge on how to deal with prostitution, labour rights and migrants’ rights.38 Not to be under-estimated in this context are the advocacy groups that lobby for expanded definitions of human trafficking aimed at including other groups (eg, child soldiers, marriage migrants and underpaid migrant workers) and by doing so dilute the trafficking concept even further. While enlarging the potential pool of trafficked individuals, broadening the definitions also stymies the precise legal recognition of trafficking victims and thus may lead to a narrowing of judicial practice as the courts try to sharpen the profile of what constitutes human trafficking. This often creates evidentiary problems, with the side-effect that only blatant cases of human trafficking end up dominating the legal system.39 Refusal to grant legal recognition of victim status also has the effect of promoting the victim–offender nexus.40 Violating immigration or other laws can result in detention, punishment and/or deportation,41 but cases get thrown out early during the preliminary proceedings when criminal investigators classify trafficked victims as unreliable witnesses because of contradictory or retracted testimony. This is often the result of victims having developed intimate relationships with their traffickers that engender emotional ­attachments or personal loyalty.42 The Council of Europe Convention on Action against Trafficking in Human Beings provides a recovery and reflection period of at least 30 days when there are reasonable grounds for suspecting that an individual is a victim (Article 13). During this period, the trafficked victim is not removed from the destination country so that he or she can seek advice and make an informed decision about cooperating with the authorities. Should the individual choose to keep quiet about what happened, he or she would usually be returned to his or her country of origin, only to be revictimised or subjected to retaliation.43 If the victim is uncooperative, legal recognition in the destination country is withheld and legal victim status will not be granted. It also happens that multiple individuals will turn down offers of assistance and support during preliminary proceedings. The reasons for this might include being misinformed or fearing punishment and expulsion. In some cases, individuals may not express a need for social assistance44 because of close supportive ties to their family and friends.45 When investigators weigh up the granting of legal victim status, they may misinterpret these coping strategies, going on the assumption that a genuine trafficking victim would opt to participate in assistance programmes. 38 ibid 8. 39 A Farrel, C Owens and J McDevitt, ‘New Laws But Few Cases: Understanding the Challenges to the ­Investigation and Prosecution of Human Trafficking Cases’ (2014) 61 Crime Law and Social Change 162. 40 J Musto, Control and Protect: Collaboration, Carceral Protection, and Domestic Sex Trafficking in the United States (Oakland, University of California Press, 2016) 46. 41 M Segrave, S Milivojevic and S Pickering, Sex Trafficking: International Context and Response (Portland, Willan Publishing, 2009) 61–63; YJ Shin, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753. 42 M Verhoeven, B van Gestel, D de Jong and E Kleemans, ‘Relationships between Suspects and Victims of Sex Trafficking: Exploitation of Prostitutes and Domestic Violence Parallels in Dutch Trafficking Cases’ (2015) 21 European Journal on Criminal Policy and Research 49, 62. 43 Ćopić and Simeunović-Patić, ‘Victims of Human Trafficking. Meeting Victims’ Needs?’ (2012) 275. 44 ibid 275. 45 Tyldum (n 25) 5.

60  Rita Haverkamp Victim compensation schemes, by excluding illegal migrants, in effect also restrict claims for compensation by blameless victims of violence who cooperate in clearing up an offence and are not involved in organised crime.46 The exclusion affects victims of trafficking from non-EU Member States especially. For example, German law grants trafficked victims a temporary residence permit under specified conditions (facilitation of criminal proceedings, no contact with the defendants and willingness to give witness testimony), which stays their legally enforceable expulsion from federal territory (section 25(4a) of the German Residence Act). Such trafficked victims can also be entitled to compensation (section 1(5) and (6) of the German Crime Victims Compensation Act). In this regard, Goodey47 states that: ‘While the strict applicant criteria in EU common law jurisdictions can be understood as an efficient means of controlling excessive applicant numbers, it results in a narrow definition of “who” is deserving of State compensation.’ In discussing the so-called ideal victim, Strobl48 therefore adds two criteria relevant to the legal recognition of victim status. Compensation will be denied if the victim contributed to his or her victimisation or does not fully cooperate with criminal investigators. During the initial investigations, the police act as a gatekeeper for legal recognition of the victim.49 Strobl concludes that ‘if the violated norm is important, and the victim is weak and helpless and is known as a law-abiding citizen able to clearly articulate his or her needs, then the police and the judicial system are highly sensitive to victimization’.50 C.  Media, Alliances, Estimates and Research The police and the criminal justice system are not the only ones influenced by a one-dimensional image of the ‘perfect’ victim. This narrow perspective is even more ­prevalent in the media and among politicians, and can be also observed among NGOs.51 Public awareness campaigns and fictional depictions further contribute to the image formed by the public of the typical trafficking victim. Media attention and awareness campaigns can stimulate criminal justice reforms.52 NGOs and government agency

46 For a survey on legislation in European countries, see http://citeseerx.ist.psu.edu/viewdoc/download?doi= 10.1.1.173.3825&rep=rep1&type=pdf; and DS Greer (ed), Compensating Crime Victims: A European Survey (Freiburg, Edition Iuscrim, 1996). 47 http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.173.3825&rep=rep1&type=pdf, 12. 48 Strobl (n 23) 298. 49 C Helfferich, B Kavemann and H Rabe, ‘Determinants of the Willingness to Make a Statement of Victims of Human Trafficking for the Purpose of Sexual Exploitation in the Triangle Offender-Police-Victim’ (2011) 14 Trends in Organized Crime 125, 146. 50 Strobl (n 23) 308. 51 E Kinney, ‘Victims, Villains, and Valiant Rescuers: Unpacking Sociolegal Constructions of Human ­Trafficking and Crimmigration in Popular Culture’ in M João Guia (ed), The Illegal Business of Human ­Trafficking (Cham, Springer, 2015) 87 ff; E Carrabine, P Cox, M Lee, K Plummer and N South, Criminology: A Sociological Introduction (New York, Routledge, 2009) 160–61. 52 C Greer, ‘Crime, Media and Community: Grief and Virtual Engagement in Late Modernity’ in J Ferrell, K Hayward, W Morrison and M Presdee (eds), Cultural Criminology Unleashed (London, Cavendish Publishing, 2004); AM McAlinden, ‘Deconstructing Victim and Offender Identities in Discourses on Child Sexual Abuse’ (2014) 54 British Journal of Criminology 180, 180.

Victims of Human Trafficking  61 anti-trafficking awareness campaigns help to combat trafficking of human beings,53 but they also tend to focus on the sexual exploitation of blameless young women and children.54 This over-simplified construction of the ‘ideal victim’ neglects other aspects of human trafficking. The argument that only the most aggravated cases deserve recognition results in other victims of sex trafficking potentially being forgotten and left in dire straits, like men and women who originally consented to work in the sex market, but who were deceived about the conditions and ended up being forced into prostitution. Public campaigns against sex trafficking are supported by NGOs and politicians ranging from the religious right to the progressive left;55 they may have completely different political views, but will agree on abolishing prostitution. In their view, all sex workers are ‘sex slaves’ to be ‘rescued and restored’ to normal lives.56 In countries with little public acceptance of voluntary prostitution, an NGO, for example, that ignores this category would jeopardise its fundraising and standing in the local community.57 Even the US annual Trafficking in Persons Reports (TIP) adopts an idealised conception of what constitutes victimisation.58 Content analysis has found that TIP reports depict victims as entirely unaware of their prospective involvement in commercial sex work and therefore as totally innocent and respectable people; furthermore, the reports over-represent victims of sex trafficking compared to any other single category.59 The study concludes that the reports predominantly represent human trafficking as a crime committed by ‘ideal offenders’ against ‘idealised victims’. However, other researchers have shown that traffickers are also a heterogeneous group: in some Southeastern European countries, women or couples are active in recruiting and trafficking.60 Distorted stereotypical ideas of the middle-aged man as trafficker who is unknown to his victim may help ‘real-world’ offenders deceive potential victims. While members of organised crime and consumers are portrayed as the ‘perfect’ perpetrators of sex trafficking, governments are perceived as the trafficking victim’s caring protectors engaged in combating this clandestine, immoral and illegal­ business.61 However, this plausible ascription obscures the complex interplay of individual and structural factors, such as the role played by restrictive migration regimes,62 a topic which usually does not interest the public or the media. The media and their audiences

53 UNODC, Toolkit to Combat Trafficking in Persons (New York, United Nations Organisation on Drugs and Crime, 2008) 446 ff. 54 De Angelis, Human Trafficking (2016) 50 ff; E O’Brien, ‘Ideal Victims in Trafficking Awareness Campaigns’ in Carrington et al (eds), Crime, Justice and Social Democracy (2013) 324. 55 R Uy, ‘Blinded by Red Lights: Why Trafficking Discourse Should Shift away from Sex and the Perfect Victim Paradigm’ (2011) 26 Berkeley Journal of Gender, Law & Justice 204, 205. 56 Uy, ‘Blinded by Red Lights’ (2011) 205. 57 Tyldum, Tveit and Brunovskis, Taking Stock (2005) 54. 58 Wilson and O’Brien, ‘Constructing the Ideal Victim’ (2016) 30. 59 ibid 34 ff. 60 R Surtees, ‘Traffickers and Trafficking in Southern and Eastern Europe: Considering the Other Side of Human Trafficking’ (2008) 5 European Journal of Criminology 39, 45. 61 E O’Brien, ‘Human Trafficking Heroes and Villains: Representing the Problem in Anti-trafficking Awareness Campaigns’ (2016) 25 Social & Legal Studies 205, 220. 62 O’Brien, ‘Human Trafficking Heroes and Villains’ (2016) 220; YJ Shin, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and ­Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753, 753.

62  Rita Haverkamp instead pay attention to demographic characteristics (eg, gender, race and respectability) in deciding whom to label as an ‘ideal victim’.63 In preventing human trafficking, ‘the focus on only an “ideal victim” is likely to undermine attempts to gain an accurate picture of both the scale and nature of trafficking and hinder efforts to design appropriate methods for combating the crime and supporting victims’.64 The question remains unsettled in relation ‘to which [extent] Christie’s stereotypical “ideal victim” image is confirmed or contradicted by empirical data, and the possibly contrasting light that these may shed on the “actual” identity of victims and their attributes’.65 NGOs, rather than existing research, succeed in influencing policy makers and public opinion with dramatic scenarios and individual stories (see also the chapter by Tatjana Hörnle in this volume).66 Although a huge amount of literature on human trafficking has so far been published in the twenty-first century, robust empirical research is still in short supply, and the available studies on the phenomenon and how to combat it do not measure up to generally accepted academic standards.67 These empirical shortcomings do not derive from the image of the ‘ideal victim’. III.  VICTIM-ORIENTED CRIME PREVENTION

Before we can reflect on how to prevent trafficking crime, we must first gain a good grasp of what constitutes the population of (potential) trafficking victims categorised as persons at risk and current as well as former victims.68 A.  Challenges for Empirical Studies on Human Trafficking Typically, empirical studies focus on former victims who are either migrants returned to their home country or enrolled in assistance programmes.69 Studies of assisted victims are not representative of the whole target group because of varying selection mechanisms (eg, unavailability of assistance programmes or specific NGO selection criteria). This biased filtering based on shelter data may lead us to conclude, for instance, that persons from dysfunctional families are prone to being trafficked.70 The same holds true when the police and the legal system identify victims: because of the relatively high threshold

63 C Greer, ‘News Media, Victims and Crime’ in P Davies, P Francis and C Greer (eds), Victims, Crime and Society (London, Sage, 2007) 23. 64 E O’Brien, ‘Ideal Victims in Trafficking Awareness Campaigns’ in Carrington et al (n 22) 324. 65 J Dignan, Understanding Victims and Restorative Justice (New York, Open University Press, 2005) 18. 66 Tyldum (n 25) 2. 67 D Davy, ‘Anti-human Trafficking Interventions: How Do We Know if They are Working?’ (2016) 37 A ­ merican Journal of Evaluation 486, 491; J Salt, ‘Trafficking and Human Smuggling: A European­ Perspective’ (2000) 38 International Migration 31, 37. 68 G Tyldum and A Brunovskis, ‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17, 21. 69 Tyldum (n 25) 5. 70 A Brunovskis and R Surtees, Leaving the Past Behind? When Victims of Trafficking Decline Assistance, Report No 40 (Oslo, Fafo Institute for Applied International Studies, 2007) 10.

Victims of Human Trafficking  63 for trafficking convictions, serious and blatant cases tend to be over-represented.71 Once again, other severely victimised individuals are ignored or obscured by a bias for the ‘ideal victim’. Several factors hamper the reliable production of valid quantitative and qualitative primary data: unwillingness to report victimisation, the ambiguity of the phenomenon and how it is interpreted, activist lobbying, and exaggerated estimates of the extent of human trafficking. Large-scale international efforts to quantify the number of trafficking victims suffer from limited access to knowledge on how human trafficking functions and on how shelter and assistance programmes to victims should be designed. An approach holding out more promise for obtaining reliable data is that of gathering information via direct interviews with groups of trafficking victims clearly defined thematically or by sector, beyond the stereotype of the ‘ideal victim’.72 The complexity of this multifaceted phenomenon is only capable of being understood by recognising the commonalities that various forms of trafficking share, but also by taking into account how they differ.73 A compilation of many disparate local studies can potentially contribute to our­ knowledge of overarching patterns and regional trends.74 B.  Prevention, Protection and Prosecution Better information would also yield insights into the diverse needs of different victim categories and lay the groundwork for specific ways of implementing the ‘three P’ paradigms – prevent human trafficking, protect victims and prosecute the traffickers – within an international framework.75 Prevention efforts should be geared towards raising awareness of and creating economic opportunities for vulnerable communities; protective measures should include helping victims recover and reintegrate, and prosecution should, inter alia, aim at enforcing the law, building capacity, running witness protection programmes, implementing border controls, and anti-corruption efforts.76 Because perspectival starting points vary between origin countries and destination countries, they need to be differentiated. Thus, while prevention in home countries entails empowering groups at high risk of being victims of trafficking and devising measures to counter discrimination, destination countries should focus on assistance for migrant workers, development policy, migration and prostitution policies, and private sector programmes.77 Concurrently, prevention in transit countries should not be forgotten.78

71 www.iom.int/jahia/webdav/shared/shared/mainsite/microsites/IDM/workshops/ensuring_protection_ 070909/human_trafficking_new_directions_for_research.pdf, 22. 72 Tyldum (n 25) 11. 73 A Efrat, ‘Global Efforts against Human Trafficking: The Misguided Conflation of Sex, Labor, and Organ Trafficking’ (2016) 17 International Studies Perspectives 34, 37. 74 Tyldum (n 25) 11. 75 See, eg, UN Global Plan of Action to Combat Trafficking in Persons, 28 September 2017. 76 Davy, ‘Anti-human Trafficking Interventions’ (2016) 488 ff; C Friesendorf, ‘Pathologies of Security Governance: Efforts against Human Trafficking in Europe’ (2007) 38 Security Dialogue 379, 387. The ‘fourth P’ partnership is defined as the necessity to collaborate on combating human trafficking, which is also reflected in the Palermo Protocol’s holistic approach (Davy (n 67) 489). 77 Friesendorf, ‘Pathologies of Security Governance’ (2007) 387. 78 V Mishra, Combating Human Trafficking: Gaps in Policy and Law (New Delhi, Sage, 2015) 36.

64  Rita Haverkamp Since the start of this century, international organisations and national governments have put in place a plethora of anti-trafficking policies and programmes, such as the UN’s Global Initiative to Fight Human Trafficking and the UK’s Action Plan 2011,79 to name just two. Anti-trafficking strategies generally tend to favour prosecution, which the Palermo Protocol stresses, rather than the human rights approach.80 Although law enforcement is relatively advanced, the low numbers of prosecuted traffickers highlight persistent deficiencies.81 Not only are few offenders ever convicted, but sentencing guidelines also vary from country to country82 and occasionally lean towards leniency83 Furthermore, it is not uncommon for trafficked victims to be treated as offenders due to having violated migration, labour and/or prostitution laws.84 Law enforcement must also cope with the agility of traffickers in successfully adapting to shifting circumstances. In Southeastern Europe, the police scored some successes in bringing traffickers operating relatively openly to justice; however, this triggered a change in the trafficker modus operandi from using brothels to conducting business in private residences instead.85 The switch resulted in a drop in the number of reported cases, which the police, opportunistically but wrongly, took the credit for.86 Despite such shortcomings, prosecution is still an important approach, while prevention and protection since the early 2000s have had a lower priority.87 In recent years, thanks to efforts by the Council of Europe and the EU, trafficking victims have received increased attention. EU Directive (2011/36/EU) of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims takes a victim-oriented approach that makes room for gender perspectives and, besides containing criminal law provisions dealing with prosecution of traffickers, comes out in support of victims and their rights in criminal proceedings, prevention and implementation monitoring.88 This directive was complemented by the EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016.89 In 2010, an EU Anti-Trafficking Coordinator was appointed to improve coordination and coherence.90 On 1 February 2008, the Council of Europe Convention on Action against Trafficking in Human Beings entered into force ratified by 45 Member States and one non-Member State.91 The Convention, which stresses the human rights

79 www.ecpat.org.uk/sites/default/files/human-trafficking-strategy.pdf. 80 Friesendorf (n 76) 388; E Yoo and E Heger Boyle, ‘National Human Trafficking Initiatives: Dimensions of Policy Diffusion’ (2015) 40 Law & Social Inquiry 631, 631. 81 Friesendorf (n 76) 391. 82 UNHCR, Combatting Human Trafficking: Overview of UNHCR Anti-trafficking Activities in Europe (Geneva, Bureau for Europe Policy Unit, United Nations High Commissioner for Refugees, 2005) 7. 83 Friesendorf (n 76) 391. 84 ibid. 85 ibid; Surtees, ‘Traffickers and Trafficking in Southern and Eastern Europe’ (2008) 61. 86 Friesendorf (n 76) 391. 87 B Limanowska, Trafficking in Human Beings in South Eastern Europe (Belgrade, UNICEF/UNOHCHR/ OSCE-ODIHR, 2005) 3. 88 http://ec.europa.eu/anti-trafficking/node/4522. 89 http://ec.europa.eu/home-affairs/sites/homeaffairs/files/doc_centre/crime/docs/trafficking_in_human_ beings_eradication-2012_2016_en.pdf. 90 http://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/traffickingin-human-beings_en. 91 www.coe.int/en/web/conventions/full-list/-/conventions/treaty/197/signatures?p_auth=C8VCXTSf.

Victims of Human Trafficking  65 perspective as well as victim protection, was supplemented by a newly constituted Group of Experts on Action against Trafficking in Human Beings (GRETA) and a Committee of the Parties; both were set up as a monitoring system to supervise implementation of obligations under the Convention.92 Since 2008, GRETA has published more than 50 country reports, followed more recently by a compendium of good practices that raised the ‘three P’s’ to four by adding a ‘partnership’ parameter. The EU Anti-Trafficking Coordinator and GRETA report on the progress in implementing the EU Directive and the Council of Europe Convention, but their reports provide no information on the effectiveness of the anti-trafficking programmes and measures. Although resource-intensive anti-trafficking activities are evidently being implemented, their effectiveness is usually not measured.93 Concerning crime prevention specifically, a long-standing goal has been to implement an evidence-based approach in all areas.94 Before proceeding to crime prevention in the human trafficking context, we need to clarify what is meant by the concept of crime prevention. C.  The Concept of Crime Prevention Section 3 of the United Nations Economic and Social Council (ECOSOC) Guidelines for the Prevention of Crime95 defines crime prevention as ‘strategies and measures that seek to reduce the risk of crimes occurring, and their potential harmful effects on individuals and society, including fear of crime, by intervening to influence their multiple causes’. Section 4 of the Guidelines addresses crime and its effect on victims and society in light of the growing internationalisation of criminal activities. As defined, crime prevention covers not only law enforcement measures, but also social, educational and political processes.96 Crime prevention obviously encompasses a vast field of variegated practices and research on it lacks conceptual precision and clear divides.97 In fact, this huge field lacks a theoretical foundation and is, instead, a highly visible part of pragmatic anti-crime policy. The consequence is that crime prevention exists primarily as a confusing thicket of practices that is not theoretically based on sound crime research,98 leading critics to call crime prevention a ‘patchwork of good will’.99 This applied approach results in crime 92 www.coe.int/en/web/anti-human-trafficking/about-the-convention. 93 Davy (n 67) 487; P van der Laan, M Smit, I Busschers and P Aarten, ‘Cross-border Trafficking in Human Beings: Prevention and Intervention Strategies for Reducing Sexual Exploitation’ (2011) 9 Campbell Systematic Reviews 3, 6. 94 EF McGarrell and N Kroovand Hipple, ‘Developing Evidence-Based Crime Prevention Practice: The Dimensions of Effective Implementation’ (2014) 4 Revija za kriminalistiko in kriminologijo 249, 249. 95 Economic and Social Council, ECOSOC Resolution 2002/13. 96 UNODC, Handbook on the Crime Prevention Guidelines: Making Them Work (New York, United Nations, 2010) 12. 97 T Bennett, ‘Crime Prevention’ in M Tonry (ed), The Handbook of Crime and Punishment (Oxford, ­University Press, 1998) 370. 98 PJ Ekblum, ‘Conjunction of Criminal Opportunity Theory’ in BS Fisher and SP Lab (eds), Encyclopedia of Victimology and Crime Prevention (Los Angeles, Sage, 2010) 140; DL MacKenzie, ‘Preventing Future Criminal Activities of Delinquents and Offenders’ in BC Welsh and DP Farrington (eds), The Oxford Handbook of Crime Prevention (Oxford, University Press, 2012) 479. 99 D Frehsee, ‘Politische Funktionen Kommunaler Kriminalprävention’ in HJ Albrecht, F Dünkel, HJ Kerner, J Kürzinger, H Schöch, K Sessar and B Villmow (eds), Internationale Perspektiven in Kriminologie und ­Strafrecht. Festschrift für Günther Kaiser zum 70. Geburtstag (Berlin, Duncker & Humblot, 1998) 741.

66  Rita Haverkamp prevention projects and programmes of questionable efficacy.100 Given the topical sweep of the multifaceted area of crime prevention, the lack of evidence-based crime prevention policies and procedures is not surprising. This is especially true as it relates to preventing human trafficking, despite the significant financial resources being invested in anti-human trafficking activities;101 preventing human trafficking focuses, on the one hand, on reducing the vulnerability of potential victims and, on the other, on increasing the risks for traffickers.102 Crime prevention operates on discrete impact levels using different approaches. The UNODC Handbook on the Crime Prevention Guidelines103 breaks them down into four main categories: crime prevention through social development (social, educational, health and training programmes), community or locally based crime prevention (increasing the safety and security of the residents in communities), situational crime prevention (reducing opportunities to commit crimes and increasing the risk of being apprehended) and re-integration programmes (all for persons caught up in the criminal justice system). Another preferred approach differentiates between primary, secondary and tertiary prevention.104 Primary prevention aims to reach a large audience in the general population without addressing individual risk factors. On this level, human trafficking is targeted by widespread awareness campaigns designed to sensitise the whole population to the phenomenon and its negative consequences. Secondary prevention seeks to reach high-risk groups of potential offenders and potential victims as well as to address situational risks. In home countries, information campaigns and counselling services can raise awareness about the risks of accepting suspicious migration and job offers, and can provide information on bureaucratic procedures and individual rights.105 Social, educational and economic conditions should be also improved to discourage vulnerable individuals from making risky migration decisions.106 In destination countries, awareness campaigns designed to diminish the demand for trafficked persons and cut into traffickers’ profits also warn potential clients of forced prostitutes about trafficking.107 Sex and labour trafficking is also an issue treated in migration policy, and governments are called on to rethink their migration regimes in cooperation with the governments of countries of origin.108 Tertiary prevention tackles human trafficking after it has already occurred and thus overlaps with protection, because trafficking victims should be protected against revictimisation and traffickers deterred from recidivism.109 100 LW Sherman, DP Farrington, BC Welsh and D Layton MacKenzie (eds), Evidence-Based Crime Prevention (London, Routledge, 2006); D Weisburd, DP Farrington and C Gill (eds), What Works in Crime Prevention and Rehabilitation: Lessons from Systematic Reviews (New York, Springer, 2016). 101 Davy (n 67) 487; Van der Laan et al, ‘Cross-border Trafficking in Human Beings’ (2011) 6. 102 ATMG, All Change: Preventing Trafficking in the UK (London, Anti-Trafficking Monitoring Group, 2012) 21. 103 UNODC, Handbook on the Crime Prevention Guidelines (2010) 12–15. 104 ATMG, All Change (2012) 21. 105 Friesendorf (n 76) 389. 106 ibid. 107 ibid. 108 ibid. 109 ATMG (n 102) 21. Another widely used approach is to differentiate between universal, selective and indicated prevention; whereas universal and selective prevention are consistent with primary and secondary prevention, indicated prevention refers to individuals with risky behaviour and specific risks such as from a health perspective when an individual exhibits early signs of substance abuse; see www.dshs.texas.gov/sa/ Prevention/classifications.shtm.

Victims of Human Trafficking  67 However, prevention strategies and programmes alone are of questionable ­effectiveness.110 Awareness-raising campaigns that are the first choice in countries of origin for informing the population about human trafficking may actually be counterproductive, because they could be perceived as EU anti-migration messages hiding under the human trafficking label.111 Different awareness campaigns are not coordinated and experiences are neither documented nor shared among their initiators.112 There is also a noticeable lack generally of development-oriented prevention programmes.113 Although some initiatives have been launched, they lack specific anti-trafficking components and potential trafficking victims only fall into the target group by accident. Thus, for ­example, skills trainings programmes may be established without being grounded in research on labour market needs.114 Moreover, NGO activities, such as encouraging gender equality and children rights, only pursue their own agenda without referring to human ­trafficking.115 Prevention is widely ignored in home countries, whereas prosecution influenced by migration politics still dominates.116 A corresponding driving force in destination countries is still the ‘migration–crime nexus’ or the ‘securitisation of migration’, even though prevention and protection are gaining in importance in Western European countries,117 which – as already mentioned – in recent years have implemented a host of legal measures designed to combat and monitor human trafficking, such as GRETA. Awareness-raising campaigns can be designed to reach either the clients or the public. In these campaigns, the idealised victim depicted may play an important role and thus present a distorted picture of the phenomenon, making the trafficking of young, innocent women for sex the centre of attention. The 2006 World Cup in Germany offers an example: in the run-up to the event, a massive increase of sex trafficking was erroneously predicted.118 Despite conflicting opinions on why this happened, ‘it appears that the resources devoted to counter-trafficking activities and media attention surrounding the World Cup were out of proportion to the scale of the problem’.119 Demand reduction is a crucial problem with respect to the trafficking of human beings linked to sexual exploitation and, even more so, to labour exploitation. While the bulk of crime prevention measures is typically directed towards the potential victim, the trafficker is neglected.120 ‘By placing the victim centrestage, the spotlight of attention turns away from the more difficult problem of trying to stop crime (or illegal immigration for that matter) by focusing, instead, on the relatively “easy” issues of victim assistance and crime prevention based on potential victims.’121 Information on their 110 Van der Laan et al (n 93) 24, 26. 111 Limanowska, Trafficking in Human Beings in South Eastern Europe (2005) 21–22. 112 Friesendorf (n 76) 394. 113 Limanowska (n 87) 9; Friesendorf (n 76) 394. 114 Friesendorf (n 76) 394. 115 ibid 394–95. 116 ibid 395. 117 J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8 Criminology & Criminal Justice 421, 437. 118 J Hennig, S Craggs, F Laczko and F Larsson, F, Trafficking in Human Beings and the 2006 World Cup in Germany (Geneva, International Organization for Migration (IOM), 2007) 5. 119 Goodey, ‘Human Trafficking’ (2008) 435. 120 ibid 430. 121 ibid 431.

68  Rita Haverkamp traffickers’ profiles would help shed light on their strategies, behaviours and tactics,122 and might also help potential victims avoid critical situations. The stereotype of the idealised trafficker – middle-aged and not known to the victim – as often presented in the media and anti-trafficking crime prevention campaigns can mislead potential migrants who, being unaware that there are different types of traffickers, might consider recruiters as trustworthy who do not fit this image.123 D.  Crime Prevention for Victims of Human Trafficking Human trafficking, a complex and diverse phenomenon, exhibits a variety of patterns in different regions and countries.124 Prevention and protection must factor in the multifarious experiences of trafficking. In trying to grapple with its intricacies, governments, NGOs, the media, the public and research tend to highlight the ‘ideal victim’ as a young, foreign and innocent woman brutally forced into sex trafficking by an ‘ideal trafficker’.125 Dichotomies such as forced or voluntary labour as opposed to prostitution disguise the composite interplay between structure and human agency as well as the continuum between these poles.126 Potential victims are rational actors who make decisions according to possible alternatives, their risk perception and their trust in the parties concerned.127 Individuals in desperate living conditions might be susceptible to a high level of exploitation in the hope of improving their lot.128 The victim is deprived of freedom to make a rational decision by being kidnapped, sold and deceived. Given the heterogeneous group of potential victims, crime prevention in human trafficking needs to set aside the image of the ‘ideal victim’ in favour of developing programmes and strategies for diverse forms of trafficking. Addressing the right target groups calls for an evidence-based approach. Anti-trafficking measures involve multiple stakeholders with different objectives, standards and approaches against the background of their positions, interests and assumptions.129 The perspectives of powerful stakeholders dominate and further impact the success of interventions in the areas of prevention, protection and prosecution: ‘In many externally funded interventions, donors exercise a tight grip over the structure, composition and implementation of evaluations, not least to ensure that their views and interests are given due to attention.’130 In this context, the prevalence of human trafficking 122 Surtees (n 60) 61. 123 M Alexandru and S Lăzăroiu, Who is the Next Victim? Vulnerability of Young Romanian Women to ­Trafficking in Human Beings (Bucharest, International Organization for Migration (IOM) – Mission in ­Romania, 2003) 6–7. 124 Tyldum, Tveit and Brunovskis (n 26) 51. 125 R Andrijasevic and N Mai, ‘Editorial: Trafficking (in) Representations: Understanding the Recurring Appeal of Victimhood and Slavery in Neoliberal Times’ (2016) 7 Anti-Trafficking Review 1, 2. 126 J O’Connell Davidson, Children in the Global Sex Trade (Cambridge, Polity, 2005); Tyldum, Tveit and Brunovskis (n 26) 51. 127 Tyldum, Tveit and Brunovskis (n 26) 52. 128 O’Connell Davidson, Children in the Global Sex Trade (2005). 129 AT Gallagher and R Surtees, ‘Measuring the Success of Counter-trafficking Interventions in the Criminal Justice Sector: Who Decides – and How?’ (2012) 1 Anti-Trafficking Review 10, 15. 130 Gallagher and Surtees, ‘Measuring the Success of Counter-trafficking Interventions in the Criminal Justice Sector’ (2012) 18.

Victims of Human Trafficking  69 is more frequently relied on as an indicator of success in counter-trafficking. Indications of ‘serious and sustained efforts’ in the US TIP Report list as a success criterion ‘whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year’.131 Relying on the prevalence of human trafficking as an indicator is problematic in several respects; as already mentioned, accurate statistics on the human trafficking phenomenon do not exist (see the chapter by Hans-Jörg Albrecht in this volume). But even if the number of identified victims could be established, shifts in how they are distributed may take place for various reasons – intensified enforcement actions, for example, could lead to an increase in recorded trafficking victims.132 Furthermore, it has already been pointed out that the US TIP Report invokes the stereotype of the ‘ideal victim’.133 It should also be borne in mind that multiple crime prevention stakeholders may have contradictory objectives and differing perceptions of what constitutes success in combating human trafficking. Moreover, the proclaimed aims may be elusive or vague. Strategies on crime prevention should elaborate clear and achievable objectives as well as precisely defined target groups. In this connection too, the stereotypical ‘ideal’ victim concept interferes with developing effective programmes and measures for trafficking victims. Only empirically grounded knowledge of the diverse victims and their specific needs will help to achieve notable progress in this field. The ‘ideal victim’ bias in anti-trafficking crime means that other victims are over­ looked and are not recognised as social and legal victims, either in their country of destination or in their country of origin. Information on trafficking victims is mainly derived from visible victims in contact with law enforcement and/or in victim aid and rehabilitation.134 These current victims of trafficking represent subgroups of the whole population.135 That is why findings on assisted victims or victims identified by the police and the legal system should be treated with circumspection when tailoring crime prevention programmes. Both subgroups, unlike the hidden victims of trafficking, are relatively easy to approach. However, an unsolved problem is that the size of both subgroups remains unknown because countries’ legal systems have different mechanisms for dealing with victims of trafficking, for example, in setting the length of the reflection period.136 In assisting victims, NGOs may apply specific selection criteria, although assistance programmes may not be available in some regions.137 In destination countries, crime prevention can only address identified victims of trafficking, but in the home countries, efforts could be undertaken to ask returned migrants to share their experiences with t­rafficking.138

131 US Department of State, Trafficking in Persons Report (US Department of State, June 2016) 47. 132 Gallagher and Surtees (n 129) 25. 133 Although the US TIP Report 2016 reflects different forms of human trafficking and different types of victims, the following note regarding its contents implies that there is indeed greater emphasis on the idealised victim: ‘Traditionally, traffickers have subjected women and girls to sex trafficking in brothels, bars, and massage parlors’ (US Department of State, Trafficking in Persons Report (2016) 5). 134 Tyldum, Tveit and Brunovskis (n 26) 29. 135 Tyldum (n 25) 5. 136 A Brunovskis, Balancing Protection and Prosecution in Anti-trafficking Policies: A Comparative Analysis of Reflection Periods and Related Temporary Residence Permits for Victims of Trafficking in the Nordic Countries, Belgium and Italy (Copenhagen, Nordic Council of Ministers, 2012) 29 ff. 137 Tyldum (n 25) 5. 138 Tyldum, Tveit and Brunovskis (n 26) 29.

70  Rita Haverkamp Information acquired in this fashion may help to reveal factors that increase an individual’s vulnerability to traffickers and could thus be used in awareness campaigns aimed at the public and specific audiences composed of crime prevention actors (eg, the authorities and social workers).139 A promising approach here seems to be the concept of ‘positive deviance’.140 Brunovskis and Surtees141 define it as follows: ‘“Positive deviance” refers to the assertion that in every community at least one person with the same resources and challenges has performed better than others. These individuals are referred to as “positive deviants” – “positive” because they are doing things “right”; “deviants” because they engage in behaviours that most others do not.’ In practice, mechanisms should be identified for empowering potential victims against human trafficking. Finally, it should be recalled that human trafficking is not only a cross-border phenomenon, but also a national one. Domestic trafficking is also widespread and should be given weight in crime prevention strategies. The enormous amount of financial resources spent on preventing the trafficking of human beings has resulted in a welter of counter-trafficking programmes and projects. Nevertheless, little is known about the effectiveness of these efforts (see section III.C). For the past decade, interest in evaluation has grown, but rigorous analytical studies are still lacking.142 Process evaluation is given preference over outcome analysis, while monitoring and evaluation blend into each other. In a meta-analysis, evaluation studies did not have a controlled design and consequently did not meet level 3 requirement of the Maryland Scientific Methods Scale143 (SMS).144 Besides other deficiencies of study design (inadequate data collection techniques and methods), the studies were often carried out by programme staff, but in-house evaluations lack credibility due to the element of selfinterest in obtaining further funding, and explicit or implicit political or other agendas. Regarding the use of awareness and training videos, the authors of an exploratory review concluded that the videos relied mostly on emotional appeals and had little evidence-based content.145 The videos failed to convey basic knowledge about human trafficking to the audience and, moreover, primarily addressed sex trafficking. The study’s authors support the development of information campaigns within a pedagogical framework, including evidence-based material.146 Other rigorous analytical studies should be conducted to gather knowledge about what works in preventing human trafficking. Using this information, potential victims could be deterred from trusting recruiters, actual victims could be induced to escape exploitation, and former victims could be given specific assistance and treatment to find their way back into society.

139 ibid. 140 A Brunovskis and R Surtees, Preventing Human Trafficking: Positive Deviance Methodology in Practice, Report No 22 (Oslo, Fafo Institute for Applied International Studies, 2015); A Brunovskis and R Surtees, Reframing Trafficking Prevention: Lessons from a ‘Positive Deviance’ Approach, Report No 21 (Oslo, Fafo Institute for Applied International Studies, 2015). 141 Brunovskis and Surtees, Preventing Human Trafficking (2015) 8. 142 Van der Laan et al (n 93) 24. 143 ‘The SMS is a five-point scale ranging from 1, for evaluations based on simple cross sectional correlations, to 5 for randomised control trials’; www.whatworksgrowth.org/resources/the-scientific-maryland-scale. 144 Davy (n 67) 498. 145 KM Preble, RE Basham, C Mengo and T Richards, ‘Human Trafficking: An Exploratory Review of Awareness and Training Videos’ (2016) 2 Journal of Human Trafficking 221, 230. 146 Preble, Basham, Mengo and Richards, ‘Human Trafficking’ (2016) 232.

Victims of Human Trafficking  71 IV. CONCLUSION

The ‘ideal victim’ is weak, innocent, respectable and coerced by an ‘ideal offender’ who is brutal and a stranger. This image conforms particularly well to the popular narrative of victims of human trafficking. Trafficking of human beings is often perceived as a cross-border phenomenon and is associated with young, naïve women who are forced into prostitution. Consequently, in the public mind, as well as in the media, politics, and research, sexual exploitation is the dominant form of trafficking. However, that all types of victims should be recognised as such both socially and legally is vital, as it means being provided shelter, aid from victim assistance groups and financial compensation, not to speak of emotional support from family and the community. For the police and the legal system, it also seems to be essential for the ‘ideal victim’ to be regarded as law-abiding and able to articulate accurately his or her needs. Beyond this stereotype, one can find other forms of human trafficking, such as labour exploitation or organ trafficking. Consequently, human trafficking has come to be regarded as a multifaceted phenomenon over the last decade.147 That sex trafficking still gets more publicity than labour trafficking is mediated by four crucial factors: the perpetrators’ social status and political connections; the clearly specific exploitative purpose; the norm resonance; and enforcement costs.148 While sex traffickers have no social legitimacy and are engaged in a distinct deviant behaviour, labour traffickers, generally speaking, are socially accepted and can exert political influence. In addition, grasping the exploitative character of forced labour may require an accumulation of multiple vague indicators (see the chapter by Piet Hein van Kempen and Sjarai Lestrade in this volume). When it comes to sexual exploitation, norm resonance is quite strong for vulnerable populations and harmonises with a common social disapproval of prostitution. By comparison, norm resonance in the case of forced labour is moderate because the workers are exploited in generally recognised work environments. Enforcement costs are moderate for sex trafficking, but high for labour trafficking due to the multitude of potential perpetrators and the difficulty of accessing locations where working conditions must be monitored constantly. When creating specific crime prevention measures to counter the various forms of human trafficking, these distinctions must be kept in mind. Despite the now prevailing, all-encompassing concept of trafficking in human beings, which can lead to conflicts between diverse stakeholders (eg government agencies, international organisations and NGOs), the growing interest in labour trafficking has focused its attention on economic and social conditions in countries of origin.149 Poverty, poor education, unemployment, deficient health care and domestic violence motivate individuals to migrate with or without their family members in search of a better life. Development and prevention programmes usually do not focus on the economic and social backgrounds that make individuals vulnerable to trafficking.150 Moreover, these programmes fail to incorporate the needs of the labour market and anti-trafficking prevention. Conversely,



147 Goodey

(n 117) 436. in detail Efrat, ‘Global Efforts against Human Trafficking’ (2016) 43. 149 Friesendorf (n 76) 393; Efrat (n 73) 51. 150 Friesendorf (n 76) 394; Efrat (n 73) 51. 148 See

72  Rita Haverkamp governments in destination countries are cautious in addressing prevention and enabling legal migration because of the securitisation of migration (see the chapters by Ester Herlin-Karnell and Elina Pirjatanniemi in this volume). The strengthening of borders and border guard forces may in fact spur illegal migration organised by smugglers who may also turn out to be traffickers. In this connection, countries of transit are still widely neglected when it comes to prevention issues. In order to develop sound crime prevention strategies and programmes for preventing human trafficking, the development of more empirically based knowledge is essential. While empirical research has accelerated during the past decade, it has also revealed continuing lacunae. Extant results show that both victims and traffickers form diverse groupings that do not conform to their generic idealised images. This points to a need for gaining insights into the hidden populations of victims and traffickers. What it is that distinguishes victims from perpetrators (as well as the victim–offender overlap) in different forms of trafficking needs further exploration. Findings from such studies should be used to improve existing programmes and, optimally, stimulate the development of targeted evidence-based crime prevention programmes. REFERENCES

Alexandru, M and Lăzăroiu, S, Who is the Next Victim? Vulnerability of Young Romanian Women to Trafficking in Human Beings (Bucharest, International Organization for Migration (IOM) – Mission in Romania, 2003). Andrijasevic, R and Mai, N, ‘Editorial: Trafficking (in) Representations: Understanding the Recurring Appeal of Victimhood and Slavery in Neoliberal Times’ (2016) 7 Anti-Trafficking Review 1. Anti-Trafficking Monitoring Group (ATMG), All Change: Preventing Trafficking in the UK (London, Anti-Trafficking Monitoring Group, 2012). Beckman, MD, ‘The White Slave Traffic Act: The Historical Impact of a Criminal Law Policy on Women’ (1984) 72 Georgetown Law Journal 1111. Bennett, T, ‘Crime Prevention’ in M Tonry (ed), The Handbook of Crime and Punishment (Oxford, University Press, 1998) 369–403. Bohne, ‘Mädchenhandel’ in F Stier-Somlo and A Elster (eds), Handwörterbuch der Rechtswissenschaft – 4 (Berlin, Walter de Gruyter & Co, 1927) 1–5. Buckland, BS, ‘More Than Just Victims: The Truth about Human Trafficking’ (2008) 15 Public Policy Research 43. Brunovskis, A, Balancing Protection and Prosecution in Anti-trafficking Policies: A Comparative Analysis of Reflection Periods and Related Temporary Residence Permits for Victims of Trafficking in the Nordic Countries, Belgium and Italy (Copenhagen, Nordic Council of Ministers, 2012). Brunovskis, A and Surtees, R, Leaving the Past Behind? When Victims of Trafficking Decline Assistance, Report No 40 (Oslo, Fafo Institute for Applied International Studies, 2007). ——. Preventing Human Trafficking: Positive Deviance Methodology in Practice, Report No 22 (Oslo, Fafo Institute for Applied International Studies, 2015).

Victims of Human Trafficking  73 ——. Reframing Trafficking Prevention: Lessons from a ‘Positive Deviance’ Approach, Report No 21 (Oslo, Fafo Institute for Applied International Studies, 2015). Carrabine, E, Cox, P, Lee, M, Plummer, K and South, N, Criminology: A Sociological Introduction (New York, Routledge, 2009). Christie, N, ‘The Ideal Victim’ in EA Fattah (ed), From Crime Policy to Victim Policy: Reorienting the Justice System (New York, St Martin’s Press, 1986) 17–30. Ćopić, S and Simeunović-Patić, B, ‘Victims of Human Trafficking. Meeting Victims’ Needs?’ in J Winterdyk, B Perrin and P Reichel (eds), Human Trafficking: Exploring the International Nature, Concerns, and Complexities (Boca Raton, Taylor & Francis, 2012) 265–89. Davy, D, ‘Anti-human Trafficking Interventions: How Do We Know if They are Working?’ (2016) 37 American Journal of Evaluation 486. De Angelis, M, Human Trafficking: Women’s Stories of Agency (Newcastle upon Tyne, Cambridge Scholars Publishing, 2016). Dignan, J, Understanding Victims and Restorative Justice (New York, Open University Press, 2005). Efrat, A, ‘Global Efforts against Human Trafficking: The Misguided Conflation of Sex, Labor, and Organ Trafficking’ (2016) 17 International Studies Perspectives 34. Ekblum, PJ, ‘Conjunction of Criminal Opportunity Theory’ in BS Fisher and SP Lab (eds), Encyclopedia of Victimology and Crime Prevention (Los Angeles, Sage, 2010) 139–46. Farrel, A, Owens, C and McDevitt, J, ‘New Laws But Few Cases: Understanding the Challenges to the Investigation and Prosecution of Human Trafficking Cases’ (2014) 61 Crime Law and Social Change 162. Frehsee, D, ‘Politische Funktionen Kommunaler Kriminalprävention’ in HJ Albrecht, F Dünkel, HJ Kerner, J Kürzinger, H Schöch, K Sessar and B Villmow (eds), Internationale Perspektiven in Kriminologie und Strafrecht. Festschrift für Günther Kaiser zum 70. Geburtstag (Berlin, Duncker & Humblot, 1998) 739–63. Friesendorf, C, ‘Pathologies of Security Governance: Efforts against Human Trafficking in Europe’ (2007) 38 Security Dialogue 379. Gallagher, AT, The International Law of Human Trafficking (New York, Cambridge University Press, 2010). Gallagher, AT and Surtees, R, ‘Measuring the Success of Counter-trafficking Interventions in the Criminal Justice Sector: Who Decides – and How?’ (2012) 1­ Anti-Trafficking Review 10. Goodey, J, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8 Criminology & Criminal Justice 421. Greer, C, ‘Crime, Media and Community: Grief and Virtual Engagement in Late Modernity’ in J Ferrell, K Hayward, W Morrison and M Presdee (eds), Cultural Criminology Unleashed (London, Cavendish Publishing, 2004) 109–18. ——. ‘News Media, Victims and Crime’ in P Davies, P Francis and C Greer (eds), Victims, Crime and Society (London, Sage, 2007) 20–49. Greer, DS (ed), Compensating Crime Victims: A European Survey (Freiburg, Edition Iuscrim, 1996).

74  Rita Haverkamp Group of Experts on Action against Trafficking in Human Beings (GRETA), Compendium of Good Practices on the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings (Strasbourg, Council of Europe, nd). Haverkamp, R and Kilchling, M, ‘Crime Prevention and the Victims: Lessons Learnt from Victimology’ in J Winterdyk (ed), Crime Prevention: International Perspectives, Issues, and Trends (Boca Raton, CRC Press/Taylor & Francis, 2017) 403–26. Helfferich, C, Kavemann, B and Rabe, H, ‘Determinants of the Willingness to Make a Statement of Victims of Human Trafficking for the Purpose of Sexual Exploitation in the Triangle Offender-Police-Victim’ (2011) 14 Trends in Organized Crime 125. Hennig, J, Craggs, S, Laczko, F and Larsson, F, Trafficking in Human Beings and the 2006 World Cup in Germany (Geneva, International Organization for Migration (IOM), 2007). Hoyle, C, Bosworth, M and Dempsey, M, ‘Labelling the Victims of Sex Trafficking: Exploring the Borderland between Rhetoric and Reality’ (2011) 20 Social & Legal Studies 313. International Labour Organization (ILO), ILO Global Estimates of Modern Slavery: Forced Labour and Forced Marriage (Geneva, International Labour Office, 2017). Jägervi, L, ‘Who Wants to Be an Ideal Victim? A Narrative Analysis of Crime Victims’ Self-Presentation’ (2014) 15 Journal of Scandinavian Studies in Criminology and Crime Prevention 73. Kinney, E, ‘Victims, Villains, and Valiant Rescuers: Unpacking Sociolegal Constructions of Human Trafficking and Crimmigration in Popular Culture’ in M João Guia (ed), The Illegal Business of Human Trafficking (Cham, Springer, 2015) 87–108. Limanowska, B, Trafficking in Human Beings in South Eastern Europe (Belgrade, UNICEF/UNOHCHR/OSCE-ODIHR, 2005). MacKenzie, DL, ‘Preventing Future Criminal Activities of Delinquents and Offenders’ in BC Welsh and DP Farrington (eds), The Oxford Handbook of Crime Prevention (Oxford, Oxford University Press, 2012) 466–87. McAlinden, AM, ‘Deconstructing Victim and Offender Identities in Discourses on Child Sexual Abuse’ (2014) 54 British Journal of Criminology 180. McGaha, JE and Evans, A, ‘Where are the Victims? The Credibility Gap in Human Trafficking Research’ (2009) 4 Intercultural Human Rights Law Review 239. McGarrell, EF and Kroovand Hipple, N, ‘Developing Evidence-Based Crime Prevention Practice: The Dimensions of Effective Implementation’ (2014) 4 Revija za kriminalistiko in kriminologijo 249. Mishra, V, Combating Human Trafficking: Gaps in Policy and Law (New Delhi, Sage, 2015). Morcom, C and Schloenhardt, A, All about Sex?! The Evolution of Trafficking in Persons in International Law (Brisbane, University of Queensland Human Trafficking Working Group, 2011). Musto, J, Control and Protect: Collaboration, Carceral Protection, and Domestic Sex Trafficking in the United States (Oakland, University of California Press, 2016). Nelken, D, ‘Human Trafficking and Legal Culture’ (2010) 43 Israel Law Review 479.

Victims of Human Trafficking  75 O’Brien, E, ‘Ideal Victims in Trafficking Awareness Campaigns’ in K Carrington, M Ball, E O’Brien and J Tauri (eds), Crime, Justice and Social Democracy: International Perspectives (Basingstoke, Palgrave Macmillan, 2013) 315–26. ——. ‘Human Trafficking Heroes and Villains: Representing the Problem in Anti-trafficking Awareness Campaigns’ (2016) 25 Social & Legal Studies 205. O’Connell Davidson, J, Children in the Global Sex Trade (Cambridge, Polity, 2005). O’Neill Borbieva, N, ‘Kidnapping Women: Discourses of Emotion and Social Change in the Kyrgyz’ (2012) 85 Anthropological Quarterly 141. Papathanasiou, K, ‘Das reformierte Sexualstrafrecht – Ein Überblick über die vorgenommenen Änderungen‘ (2016) 1 Kriminalpolitische Zeitschrift 133. Preble, KM, Basham, RE, Mengo, C and Richards, T, ‘Human Trafficking: An Exploratory Review of Awareness and Training Videos’ (2016) 2 Journal of Human Trafficking 221. Salt, J, ‘Trafficking and Human Smuggling: A European Perspective’ (2000) 38 International Migration 31. Segrave, M, Milivojevic, S and Pickering, S, Sex Trafficking: International Context and Response (Portland, Willan Publishing, 2009). Sherman, LW, Farrington, DP, Welsh, BC and Layton MacKenzie, D (eds), EvidenceBased Crime Prevention. Revised Edition (London, Routledge, 2006). Shin, YJ, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753. Skogan, WG and Maxfield, MG, Coping with Crime: Individual and Neighborhood Reactions (Los Angeles, Sage, 1981). Smiragina, P, ‘Misidentification of Men within the Human Trafficking Discourse’ in T Petray and A Stephens (eds), The Annual Conference of the Australian Sociological Association – Refereed Proceedings of TASA 2015 Conference (Cairns, TASA, 2015) 123–129. Smolej, M, ‘Constructing Ideal Victims? Violence Narratives in Finnish Crime-Appeal Programming’ (2010) 6 Crime Media Culture 69. Strobl, R, ‘Constructing the Victim: Theoretical Reflections and Empirical Examples’ (2004) 11 International Review of Victimology 295. Surtees, R, ‘Traffickers and Trafficking in Southern and Eastern Europe: Considering the Other Side of Human Trafficking’ (2008) 5 European Journal of Criminology 39. Tyldum, G, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1. Tyldum, G and Brunovskis, A, ‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17. Tyldum, G, Tveit, M and Brunovskis, A, Taking Stock: A Review of the Existing Research on Trafficking for Sexual Exploitation, Report no 493 (Oslo, Fafo Institute for Applied International Studies, 2005). United Nations High Commissioner for Refugees (UNHCR), Combatting Human Trafficking: Overview of UNHCR Anti-trafficking Activities in Europe (Geneva, Bureau for Europe Policy Unit, United Nations High Commissioner for Refugees, 2005).

76  Rita Haverkamp United Nations Office on Drugs and Crime (UNODC), Toolkit to Combat Trafficking in Persons (New York, United Nations Organization on Drugs and Crime, 2008). ——. Handbook on the Crime Prevention Guidelines: Making Them Work (New York, United Nations, 2010). US Department of State, Trafficking in Persons Report (July 2015). ——. Trafficking in Persons Report (June 2016). Uy, R, ‘Blinded by Red Lights: Why Trafficking Discourse Should Shift Away from Sex and the Perfect Victim Paradigm’ (2011) 26 Berkeley Journal of Gender, Law & Justice 204. Van der Laan, P, Smit, M, Busschers, I and Aarten, P, ‘Cross-border Trafficking in Human Beings: Prevention and Intervention Strategies for Reducing Sexual Exploitation’ (2011) 9 Campbell Systematic Reviews 3. Verhoeven, M, van Gestel, B, de Jong, D and Kleemans, E, ‘Relationships between Suspects and Victims of Sex Trafficking: Exploitation of Prostitutes and Domestic Violence Parallels in Dutch Trafficking Cases’ (2015) 21 European Journal on Criminal Policy and Research 49. Walklate, S, Imagining the Victim of Crime (Maidenhead, Open University Press, 2007). Weisburd, D, Farrington, DP and Gill, C (eds), What Works in Crime Prevention and Rehabilitation: Lessons from Systematic Reviews (New York, Springer, 2016). Wilson, M and O’Brien, E, ‘Constructing the Ideal Victim in the United States of America’s Annual Trafficking in Persons Reports’ (2016) 65 Crime Law and Social Change 29. Yoo, E and Heger Boyle, E, ‘National Human Trafficking Initiatives: Dimensions of Policy Diffusion’ (2015) 40 Law & Social Inquiry 631.

5 Victims of Trafficking in the Migration Discourse A Conceptualisation of Particular Vulnerability ELINA PIRJATANNIEMI

I. INTRODUCTION

A

ccording to the United Nations Refugee Agency (UNHCR), the number of refugees, asylum-seekers and internally displaced persons amounted to 65.6  ­million persons by the end of 2016.1 The largest share of the forcibly displaced is hosted by Sub-Saharan Africa (30 per cent), followed closely by the Middle East and North Africa (26 per cent). Europe hosted 17 per cent, the Americas hosted 16 per cent, while Asia and Pacific hosted 11 per cent.2 In 2015, Europe faced a significant rise in irregular migrants.3 This increase, also called the European migration crisis, has had serious political consequences throughout Europe. In the light of the figures presented above, Europe is nonetheless not the only region affected by the global migration crisis. By the same token, it is evident that Europe, and particularly the European Union (EU), faces significant challenges in this regard. The human tragedy taking place in the Mediterranean and the structural shortcomings of the Common European Asylum System (CEAS) have put the EU to the test morally, ­politically and legally. Unfortunately, there is no consensus in sight as regards the response to the crisis, except for the fact that most Europeans seem to think that the current system does not work. Political conclusions of the situation are drawn very differently in the different

1 UNHCR, ‘Global Trends, Forced Displacement in 2016’, www.unhcr.org/globaltrends2016. 2 See www.unhcr.org/figures-at-a-glance.html. 3 In the context of migration and asylum, the use of terminology plays an important role. Migration is normally used as an overall term which refers to all forms of migration, voluntary as well as involuntary. As the focus of this chapter is on irregular migration, the word ‘migration’ refers here to forced migration unless explicitly stated otherwise. The concept ‘refugee crisis’ is avoided, because the legal term ‘refugee’ is very limited and does not describe all persons who are forced to move. Persons who are forced to migrate are referred to as irregular migrants, asylum-seekers, victims of trafficking or persons seeking international protection.

78  Elina Pirjatanniemi EU institutions,4 and there is also a certain risk that the crisis, if prolonged, will challenge the idea of freedom of movement in the EU. Seen from a human rights perspective, the situation is alarming. European countries are engaged in a race to the bottom, which leads to more stringent asylum procedures and reduced access to basic welfare services for migrants. Despite promises of the contrary, legal avenues to the EU remain to a large extent illusory. Detention is used extensively, even in relation to children. Anti-refugee propaganda and xenophobic attitudes are visible across Europe, in some countries even as part of official policy.5 Taking into account the core values that the EU is based upon,6 the state of affairs undoubtedly raises questions about the legitimacy of the whole organisation. Forced migration to Europe is of course not a unique phenomenon as such. What makes the current crisis, which began in 2015, particularly problematic is the relatively large number of people on the move and the uneven flow of refugees to different ­European countries. The situation is partly dependent on the geography of conflicts and partly on the basic tenets of the CEAS. The former reason is to a large extent beyond the control of the EU, while the latter is a direct result of EU legislation. According to the Regulation (EU) 604/2013,7 the country of first entry handles the asylum claim if there are no particular reasons to deviate from this rule. As some countries are more exposed than others, it is comprehensible that only very few, if any countries are satisfied with the current state of affairs. As a consequence, the EU is now in the process of rethinking the basic principles of its migration and asylum policies. The efforts made and planned by the EU cover a vast area of migration and asylumrelated issues, and it is not possible to tackle them all here. The interest of this chapter is geared towards the situation of mass influx of irregular migrants and asylum-­seekers, and more specifically the mechanisms through which states try to prioritise among those seeking international protection.8 The underlying assumption here is that in a refugee setting, the interests of states and of those seeking international protection are not necessarily unified. Asylum-seekers and irregular migrants can be perceived as a substantial burden to the host society, and it is thus understandable that states try to find out legitimate ways to concentrate their protective actions on certain categories of persons.

4 The EU Commission emphasises the necessity of burden-sharing, solidarity and joint action, while many Member States, echoed by Donald Tusk, the President of the European Council, are reluctant to accept the growing role of the EU in this context. See Commission contribution to the EU leaders’ thematic debate on a way forward on the external and the internal dimension of migration policy Brussels, 7 December 2017 COM(2017) 820 final and the Leader’s Agenda on migration: www.consilium.europa.eu/media/32083/en_leaders-agenda-note-on-migration_.pdf. 5 See European Union Agency for Fundamental Rights, Fundamental Rights Report 2017 (Luxembourg, European Union Agency for Fundamental Rights, 2017) ch 5. 6 Article 2 of the Treaty on European Union (TEU) reads: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ Consolidated version of the Treaty on European Union [2012] OJ C326/13. 7 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31 (hereinafter Regulation (EU) No 604/2013 or the Dublin III Regulation). 8 On the problematics regarding mixed migration, see also the chapter by Herlin-Karnell in this volume.

Victims of Trafficking in the Migration Discourse  79 A plausible a­ lternative in this respect is the construction of categories consisting of persons with different degrees of vulnerability. The more vulnerable a person is, the more comprehensive is also the protection given to the person. One subgroup of particularly vulnerable persons is victims of trafficking, which is also the main focus here.9 The argument made in this chapter is that in the face of the complex and often very chaotic realities of asylum and migration, the EU is putting too much faith in subtle legal distinctions and clear-cut categories. In addition, it is argued that key concepts are construed in a way that does not offer justice to the real-life experiences of those fleeing to Europe.10 By doing so, the EU risks losing sight of the role of law in creating, and sometimes even worsening, societal problems. As indicated above, the basis for the argument made above is built up around the phenomenon of trafficking. The aim is to show how the particular vulnerability of victims of trafficking is construed in the EU and what the concept ‘does’ in a refugee setting. This chapter argues that the strong focus on the particular vulnerability of victims of trafficking is closely linked to their status as ideal victims.11 This, again, is a characteristic that irregular migrants and asylum-seekers do not benefit from.12 The fact that many of them have been in the hands of traffickers and smugglers, and thereby suffered from equivalent abuse and humiliation as those being trafficked, is given almost no relevance. Consequently, this chapter discusses the meaningfulness of the difference made between the concepts of smuggling and trafficking in the refugee setting. The discussion on the concept of vulnerability highlights not only dichotomies that are present in the migration context, but also reveals challenges that have been described typical for human rights in general. As Martti Koskenniemi has emphasised, it is essential to keep in mind that the identification, meaning and applicability of rights are always dependent on contextual assessments. Despite its claim for value-neutrality, rights rhetoric is constantly reduced to conflicting arguments about the political good. This leads to prioritisations. These, again, are not dictated by any natural essence of things, but by political preferences. The selectivity, Koskenniemi continues, by which one problem is characterised as a rights question while the other is not, causes exclusions.13 The same is true with vulnerability; its content is dependent on political preferences. From the perspective of a policy-maker, it is easier to defend the vulnerability of those perceived having no agency than those who take risks and show their urge to get a better life.14

9 See further on the crime of human trafficking V Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge, Cambridge University Press, 2017). 10 See also M de Angelis, Human Trafficking: Women’s Stories of Agency (Newcastle upon Tyne, Cambridge Scholars Publishing, 2016) 144–45. 11 On the concept of ideal victims in the context of trafficking, see also the chapter by Haverkamp in this volume. 12 See also de Angelis, Human Trafficking (2016) 44–46. 13 M Koskenniemi, ‘The Effect of Rights on Political Culture’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press 1999) 99–107. 14 The problematic nature of the concept of ‘abuse of a position of vulnerability’ is also discussed elsewhere in this volume. See the chapter by Bergelson for a critical analysis of the definition used in the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons. The chapter by van Kempen and Lestrade focuses on the problems of the concept in the context of labour exploitation.

80  Elina Pirjatanniemi In order to describe how the particular vulnerability is perceived in the EU, several key documents have been analysed. The main focus has been on the legal instruments regulating the status of asylum-seekers and those focusing directly on victims of trafficking. These include legislation on which Member State is responsible for the examination of an asylum claim,15 the type of persons who can qualify for international protection,16 the common EU standards regarding the granting and withdrawal of refugee status,17 and the common standards of living that applicants should be granted.18 As regards the victims of trafficking, the analysis has concentrated on Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims19 and Directive 2004/81/EC on the residence permit issued to victims of trafficking.20 Furthermore, the directive defining the facilitation of unauthorised entry, transit and residence has been studied.21 In addition to the EU legislation currently in force, the most important policy documents have been investigated. These include the EU Strategy towards the Eradication of Trafficking in Human Beings 2012–1622 and the most important/­relevant proposals to complete the development of the CEAS. These are the new European Agenda on Migration,23 the EU Action Plan against migrant smuggling24 and the Reform of the CEAS.25 In addition, the study comprises the European Agenda on Security.26 The ­relevant primary EU legislation has also been taken into account where necessary. 15 Regulation (EU) No 604/2013. 16 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the ­protection granted (recast) [2011] OJ L337/9 (hereinafter Directive 2011/95/EU or the Qualification Directive). 17 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60 (hereinafter Directive 2013/32/EU or the Asylum Procedures Directive). 18 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96 (hereinafter Directive 2013/33/EU or the Reception Conditions Directive). 19 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1 (hereinafter Directive 2011/36/EU or the Anti-trafficking Directive). 20 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L19/261 (hereinafter Directive 2004/81/EC). 21 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ L328/17 (hereinafter Directive 2002/90/EC or Facilitation Directive). 22 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–16, COM(2012) 286 final, Brussels, 19 June 2012. 23 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, COM(2015)240 final, Brussels, 13 May 2015. 24 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, EU Action Plan on Migrant Smuggling (2015–20), COM(2015) 285 final, Brussels, 27 May 2015 (hereinafter EU Action Plan against migrant smuggling). 25 Communication from the Commission to the European Parliament and the Council, towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe, COM(2016) 197 final, Brussels, 6 April 2016 (hereinafter Reform of the CEAS). 26 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2015) 185 final, Strasbourg 28 April 2015 (hereinafter European Agenda on Security).

Victims of Trafficking in the Migration Discourse  81 II. BACKGROUND

A.  Contours of the Area of Freedom, Security and Justice The EU is based on an idea of an internal market with free movement of goods, persons, capital and services. The relevance of these freedoms still constitutes the core of the EU, albeit that the organisation has developed far beyond economic integration. This development has had several strands, but for the purposes of this chapter two components are especially important. First, the EU has become a significant actor as regards the protection of fundamental and human rights. As the Treaty of the European Union (TEU) stipulates, the foundation of the EU is built upon the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.27 Second, the integration process entails a constant balancing between different interests. This balancing is clearly present in the Area of Freedom, Security and Justice (AFSJ), as can be read in Article 3(2) TEU: The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

Within this area, the EU shall ensure the absence of internal border controls for its citizens. As a corollary, it correspondingly frames a common policy on asylum, immigration and external border control, which is ‘based on solidarity between Member States, which is fair towards third-country nationals’.28 Despite the reference to fairness towards outsiders, the creation of the AFSJ presupposes closed external borders. In this respect, the EU acts as nation states do; in other words, it gives the benefit of citizenship to some, but simultaneously limits the group that has access to this powerful status. Due to the advantages linked to citizenship and due to the human rights obligations towards all those under the jurisdiction of the EU, there is thus a strong political incentive to keep migration from third countries manageable.29 It is also noteworthy that the migration question is profoundly securitised in the EU. The asylum-seeker and/or the migrant is the potentially dangerous ‘other’, a source of societal dangers of different kinds.30 The creation of the AFSJ also called for a stronger focus on judicial cooperation in general. In the context of the present study, judicial cooperation in criminal matters is particularly relevant. From being an area exclusively under the control of Member States, criminal cooperation has, as Tanja Börzel puts it, ‘undergone progressive

27 See art 2 TEU. On the relevance of fundamental and human rights in the EU, see further A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2010) 143–162. 28 Article 67(2) of the Treaty on the Functioning of the European Union (TFEU); Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47. 29 On the rights of third-country nationals in the EU, see further S Iglesias Sánchez, ‘The Constitutional Status of Foreigners and European Union Citizens: Loopholes and Interactions in the Scope of Application of Fundamental Rights’ in Daniel Thyme (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Oxford, Hart Publishing 2017) 256–66. 30 See further J Huysmans, ‘The European Union and the Securitization of Migration’ (2000) 38 Journal of Common Market Studies 751, 761–62.

82  Elina Pirjatanniemi s­upranationalization during the last decade’.31 The EU has now competence to establish minimum rules on the definition of criminal offences and sanctions ‘in the areas of particularly serious crime with a cross-border dimension’.32 Currently, these are ­terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. B.  Towards a New Agenda on Migration The combination of the complex notions of freedom, security and justice essentially ­triggers a question of how to feasibly balance between the underlying interests linked to these concepts. The current migration situation exemplifies how difficult this can be. On the one hand, the EU Member States share – or at least should share – the same ­fundamental values that should also guide their policies with regard to asylum and migration. Furthermore, the Member States shall ensure that persons seeking international protection are treated in a manner which is in compliance with the principle of nonrefoulement and in accordance with the Geneva Convention of 1951 relating to the status of refugees.33 These obligations are concretised in the secondary legislation on asylum and migration. On the other hand, all this has proven to be very difficult in practice.34 In May 2015, the EU presented its Agenda on Migration, which brought together the different steps that the EU should take in the near future. The Agenda covers all dimensions of migration, but an important part of it concentrates on actions to tackle irregular migration. The Agenda called for ‘a robust fight against irregular migration, traffickers and smugglers’35 and listed several goals for this fight. The approach taken echoed the priorities listed in the European Agenda on S­ ecurity, which had been presented a month earlier. It established three interlinked priorities for European security in the coming five years: response to terrorism and foreign terrorist fighters, serious and organised cross-border crime, and cybercrime. Smuggling of migrants and trafficking in human beings were explicitly mentioned as areas where a reinforced action against criminal networks is needed.36 The securitisation of migration is very visible in this document; according to the Agenda, smuggling of migrants, trafficking in human beings and border management in general are all issues that are ‘directly relevant to security’.37 Some weeks after the publication of these strategic documents, the EU Action Plan against migrant smuggling was introduced. The Action Plan sets out the specific actions

31 See TA Börzel, ‘Mind the Gap! European Integration between Level and Scope’ (2005) 12 Journal of ­European Public Policy 217, 227. 32 TFEU, art 83. 33 ibid art 78(1). 34 See further M den Heijer, J Rijpma, and T Spijkerboer, ‘Coercion, Prohibition, and Great Expectations: The Continuing Failure of the Common European Asylum System’ (2016) 53 Common Market Law Review 607, 608–25. 35 COM(2015) 240 final 13 May 2015, 6. 36 COM(2015) 185 final, 28 April 2015, 18. 37 COM(2015) 185 final, 28 April 2015, 4.

Victims of Trafficking in the Migration Discourse  83 that are needed to implement the Agenda on Migration and the Agenda on Security. It aims ‘to counter and prevent migrant smuggling, while ensuring the protection of the human rights of migrants’.38 Finally, in April 2016, the EU Commission presented a comprehensive plan to improve the CEAS. The structural shortcomings of the system are proposed to be improved within five different areas. To begin with, the EU aims to establish a sustainable and fair system for determining the Member State responsible to asylum-seekers. The current system would be replaced with a mechanism where asylum-seekers were distributed to Members States according to a distribution key. The proposal also strives for reinforcing the Eurodac system so that it could be used to facilitate the return of irregular migrants. Furthermore, a range of measures is proposed to ensure that the functioning of the CEAS is not disrupted by the secondary movement of asylum applicants. More generally, the intention is also to further harmonise asylum procedures across the EU. The mandate of the European Asylum Agency will also be strengthened.39 The underlying logic in the 2016 proposal is in line with the previous strategic ­documents. It consequently places strong emphasis on the necessity to reduce irregular flows to and within Europe, and on the necessity to protect the EU’s external borders. At the same time, it also acknowledges the need to enhance legal and safe pathways to Europe.40 This is motivated partly by humanitarian considerations, but also by purely instrumental standpoints. Europe wants to attract skills and talents, and migration is obviously a crucial tool in this respect. However, the current ‘uncontrollable flow’ of irregular migrants and asylum-seekers is not in the EU’s interests. An intelligent and comprehensive strategy for migration and asylum would serve the interests of migrants, EU citizens and Member States alike. Unfortunately, the European political environment is not promising in this respect. As mentioned already in the introduction, the proposals regarding, for example, efforts to facilitate burden sharing between the Member States have been met with totally divergent views by the different EU institutions. To some extent, asylum and migration policy lacks direction, and Member States have, for their part, engaged themselves in the race to the bottom. Reforms are necessary, but it is very difficult to foresee how the political backlog should be addressed. III.  ON THE MARKET

A.  The Narrative of Business The underlying aim of the European Agenda on Migration is ‘to build up a coherent and comprehensive approach to reap the benefits and address the challenges deriving from migration’.41 With regard to challenges, the agenda strongly emphasises the necessity to combat smuggling and trafficking. Actions against smugglers and traffickers are primarily



38 COM(2015)

285 final, 27 May 2015, 2. 197 final, 6 April 2016, 5–13 40 COM(2016) 197 final 6 April 2016, 3. 41 COM(2015) 240 final, 13 May 2015, 2. 39 COM(2016)

84  Elina Pirjatanniemi described as a way to prevent the exploitation of irregular migrants by criminal networks. In addition, they are perceived as an important tool to hinder irregular migration. Smuggling networks are presented as ‘low risk, high return’ operations, while the goal is to turn them to ‘high risk, low return’ operations. The Agenda on Migration also acknowledges the need to create a better framework for legal pathways into the EU, but the concrete proposals in this regard remain undeveloped. All in all, the main focus is on actions to fight criminal networks of smuggling and trafficking.42 The Action Plan against migrant smuggling uses the same narrative of business. The market at hand is portrayed as a highly profitable business, with low risks. Smugglers are seen as evil members of criminal networks who treat migrants solely as goods. They organise the journeys of desperate migrants in a ruthless manner and put their lives at risk.43 In order to counter and prevent these heinous activities, the EU puts forward four sets of responses. First, it aims to ‘disrupt the business model’ of criminal networks and bring the perpetrators to justice.44 In addition, it strives for enhancing information gathering and exchange. The third group of actions includes different ways of preventing migrant smuggling and mechanisms to support smuggled migrants. In particular, the EU should step up its efforts to assist and protect vulnerable groups, such as children and women. Finally, the EU should strengthen cooperation with third countries along the entire smuggling route.45 When the new Action Plan against migrant smuggling is compared with the earlier EU Strategy towards the Eradication of Trafficking in Human Beings (2012–16), significant differences in emphasis can be detected. First of all, the anti-trafficking strategy is much more detailed and also gives more weight to actions that are focused on protecting and assisting the victims of trafficking.46 Both strategies highlight the lucrative nature and seriousness of the criminality linked to smuggling and trafficking, but the anti-trafficking strategy is more articulate in defining trafficking as a severe violation of human rights.47 This is not only a question of semantics; it also indicates that victims of smuggling and victims of trafficking are treated differently in the EU. This, for its part, is a consequence of how these phenomena are understood in the legal framework and in a broader policy framework.48 B.  Trafficking and Smuggling as Legal Concepts In a legal sense, trafficking and smuggling are two interlinked yet separate phenomena. In the latter case, there is a common understanding between the smuggler and the 42 COM(2015) 240 final, 13 May 2015, 8–9. See also COM (2015) 185 final, 28 April 2015, 18. 43 COM(2015) 285 final, 27 May 2015, 1. 44 COM(2015) 285, 27 May 2015, 2. 45 ibid 4–10. 46 COM(2012) 286 final, 19 June 2012, 6–8. 47 ibid 2. 48 On a general note, one serious dilemma is the lack of evidence-based knowledge on the links between organised crime, smuggling and trafficking. This leads to only rough estimates on the nature of the business, whereas the criminal context of trafficking and smuggling is not properly understood. See further G ­Vermeulen, Y van Damme and W de Bondt, ‘Perceived Involvement of “Organised Crime” in Human Trafficking and ­Smuggling’ (2010) 81 Revue Internationale de Droit Pénal 247, 250–52, 266–69.

Victims of Trafficking in the Migration Discourse  85 s­ muggled regarding the terms of the transaction. In a migration context, this typically means that an irregular migrant pays a certain sum of money of the smuggler’s services. These can include, inter alia, information on routes to the country of destination, counterfeited travel documents and other necessary services.49 Facilitation of irregular immigration is defined in Directive 2002/90/EC. According to Article 1(1) of the Directive: Each Member State shall adopt appropriate sanctions on: a) any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens; b) any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens.50 Trafficking, for its part, includes a strong element of coercion. The trafficker has more or less total control over those who are trafficked, which also explains why trafficking is often called ‘modern-day slavery’. Trafficking is defined in Article 2(1) of Directive 2011/36/EU as follows: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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.

Member States shall take all the necessary measures in order to make all the intentional acts described above punishable. According to the Directive, exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. C.  Different Yet Interlinked Seen from a legal perspective, there are, in other words, significant differences between smuggling and trafficking. To begin with, compared to smuggling, trafficking cannot be described as a contractual relationship. Trafficking is always characterised by obvious and flagrant misuse of force or power. While smuggling can be understood as a deal where both parties gain something, this type of characterisation is beyond question in cases of trafficking. This is also accentuated as regards the relevance of consent of a victim in trafficking cases. Consent to the exploitation, whether intended or actual, is irrelevant where

49 According to Europol, 90 per cent of the irregular migrants arriving in the EU use some sort of facilitation services at some stage during their journey. Europol, Migrant Smuggling in the EU (The Hague, Europol, 2016). 50 According to art 1(2), Member States may decide not to impose sanctions with regard to the behaviour defined in para 1(a) for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.

86  Elina Pirjatanniemi any of the oppressive means described above have been used. In addition, the aims of the perpetrators differ. Smuggling is a temporary arrangement. As soon as the smuggled person has reached his or her destination, the contractual relationship is over. Trafficking, for its part, has normally a longer timespan. The source of profit is the exploitation, which typically continues after a person has been moved from one place to another.51 However, a closer look at the definition of trafficking reveals that the purpose to exploit a person can already constitute trafficking. The offence does not require the causing of harm. A migrant may have negotiated with a smuggler that he or she will be transferred to a particular destination without knowing that the smuggler does this for the purpose of future exploitation. In scenarios like this, it can be very difficult to distinguish between smuggling and trafficking.52 Irrespective of the separate legal definitions of these two phenomena, research shows that in practice it is often difficult to make a distinction between them.53 To begin with, one can question the idea of voluntariness which is typically linked to smuggling. For most asylum-seekers, a journey to Europe is cumbersome. In fact, without the assistance of smugglers, traffickers and unofficial travel agents, the obstacles to the entry into Europe might be insurmountable.54 For many migrants, legal ways to enter are nevertheless fairly restricted. This imbalance in supply and demand creates fruitful circumstances for business. Prices tend to raise when demand exceeds supply. Unfortunately, there are always individuals who are willing to exploit these kinds of ruthless market scenarios. In other words, it is reasonable to ask whether the migrant or asylum-seeker has any real options. We would hardly accept an equivalent imbalance in power relations in other contractual relationships. Whether trafficked or smuggled, migrants are often exposed to different forms of violations during and after their journey. The intensity of these violations differs and can in the worst cases amount to such intensive control of the smuggled person that he or she becomes a victim of trafficking.55 The concepts or, rather, the distinction between them also downplay the fact that the exploitation of those seeking protection often constitutes a continuum of exploitation. The continuum places win-win transactions, where the interests of the smuggled and the smuggler are united, at one end, and serious forms of exploitation at the other. This continuum of exploitation describes the experiences of migrants as part of a larger context rather than as single, isolated incidents.56

51 Some definitions of trafficking include a requirement of cross-border movements. The EU legislation covers both internal and international trafficking. 52 See further the chapter by Herlin-Karnell in this volume. 53 See also J Goodey, ‘Migration, Crime and Victimhood: Responses to Sex Trafficking in the EU’ (2003) 5 Punishment & Society 415, 419–21. 54 See, for example, K Koser, ‘Asylum Policies, Trafficking and Vulnerability’ (2000) 38 International­ Migration 91, 97. The fact that 90 per cent of the irregular migrants are estimated to use facilitation services also points to this direction; see Europol, Migrant Smuggling in the EU (2016). 55 A Jokinen, ‘Irregular Migration, Trafficking in Persons and Prevention of Exploitation’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 70–73. 56 On the continuum of exploitation, see further N Ollus, From Forced Flexibility to Forced Labour: The Exploitation of Migrant Workers in Finland (Helsinki, European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI), 2016) 18–19.

Victims of Trafficking in the Migration Discourse  87 That being said, it is possible that mutually profitable relationships between the smugglers and the smuggled exist. Even if the anti-smuggling rhetoric underlines the existence of transnational criminal networks, many facilitators of irregular migration in fact run very small-scale operations.57 In less developed and conflict-torn countries, where possibilities for employment are few, smuggling may put bread on the table. In order to better tackle smuggling, decision-makers should have a more nuanced understanding of the complex nature of the phenomenon. All smugglers are not necessarily evil criminals who ruthlessly exploit the desperation of others. As far as trafficking is concerned, it is apparent that all trafficking is not related to the current migration situation. It is a phenomenon in its own right, but at the same time irregular migration, especially in situations of mass influx, creates a particularly good environment for trafficking. IV.  ON AGENCY

A.  Vulnerability Enters the Scene The purpose of this chapter is to highlight some of the paradoxes the concept vulnerability creates in a migration setting. The concept is in extensive use in the EU and it also has found its way to the case law of the European Court of Human Rights (ECtHR).58 Interestingly, one can identify subtle differences in the use of the concept within the two European systems. The ECtHR addresses those seeking international protection in general as vulnerable, and it also acknowledges the specific vulnerability of certain categories seeking international protection. In the EU, the focus seems to be on the latter understanding of the concept, albeit that the use of the concept is yet neither developed nor coherent.59 The argument made here is that regardless of the intention of those who have introduced the concept, in the EU migration context it risks creating unfair distinctions amongst people and, as such, it also lacks the ability to identify those in need of particular care and attention.

57 See J Salt and J Stein, ‘Migration as a Business: The Case of Trafficking’ (1997) 35 International Migration 467, 476–83; and M Collyer, ‘Cross-border Cottage Industries and Fragmented Migration’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 18. The necessity to have a more nuanced picture of the market is also emphasised by Vermeulen, van Damme and de Bondt, ‘Perceived Involvement of “Organised Crime”’ (2010) 266–69. 58 The focus of this chapter is on the EU. As far as human rights and fundamental freedoms are concerned, the scope of guaranteed rights and the level of protection is nevertheless strongly linked to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Insofar as the EU Charter of Fundamental Rights contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the Convention. The European Court of Justice (ECJ) has recognised the special relevance of the ECHR in its case law, and it also regularly cites individual judgments of the ECtHR. Even if the EU has not yet acceded to the ECHR in its own right, the two European systems live very close to each other. See further Rosas and Armati, EU Constitutional Law (2010) 143–47. 59 ECRE, The Concept of Vulnerability in European Asylum Procedures (Brussels, ECRE, 2017) 10-18. See also M Mustaniemi-Laakso et al, The Protection of Vulnerable Individuals in the Context of EU ­Policies on Border Checks, Asylum and Immigration, Large-Scale FP7 Collaborative Project, Work Package No 11–­Deliverable No 3 (Leuven, Frame, 2016) 14–18.

88  Elina Pirjatanniemi The awareness of groups in need of special protection is not a novelty in international law. For example, motherhood and childhood are already listed as conditions that are entitled to special care and assistance in the International Bill of Human Rights.60 Furthermore, group-specific conventions, such as those focusing on women,61 racial and ethnic minorities,62 children,63 disabled persons64 and migrant workers,65 can be seen as a reaction to the necessity to give special attention to some groups. Furthermore, it can be argued that economic, social and cultural rights in general are a category of rights that typically aim to strengthen the resilience of individuals. By providing the right to adequate standard of living, the right to work, the right to social security and the right to education, to name just a few, the state protects, maintains and advances the fulfilment of basic human needs. Vulnerability is normally used to define groups of dependent or stigmatised subjects. Characteristically, vulnerability is associated with victimhood, deprivation and dependency. Different categories of vulnerable include, at least, children, women, elderly, indigenous peoples, refugees and migrants, disabled persons, persons living with HIV/ AIDS, national or ethnic, religious and linguistic minorities, and lesbian, gay, bisexual, transgender and intersex (LGTBI) persons. Common to all these groups is a need of special protection because of biological and/or long-standing patterns of persecution and exploitation. Vulnerable groups are normally based on non-voluntary membership.66 Vulnerability as a concept as such does not have a precise meaning in a legal sense. One cannot find it in general human rights conventions, nor does it appear in the groupspecific conventions. There is, however, a growing tendency to use it by different human rights bodies and in policy documents. To begin with, vulnerability is used as an instrument of identifying persons in disadvantageous situations.67 It can be construed as inherent, as in cases of children and persons with mental disabilities. It can be group-based (Roma, indigenous peoples), gender-based (women) or a consequence of one’s legal status. Examples of the latter category are stateless persons, persons in detention, those accused or persons without legal capacity, asylum-seekers or migrants. Certain occupations or opinions may also render persons vulnerable. 60 See Universal Declaration of Human Rights, UNGA Res 217A (10 December 1948), art 25(1); International Covenant on Economic, Social and Cultural Rights, (adopted 16 December 1966, entered into force 3 ­January 1976) 993 UNTS 3, art 10(2) and 10(3); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 24(1). 61 See, for example, Convention on the Elimination of All Forms of Discrimination against Women (adopted 1 March 1980, entered into force 3 September 1981) 1249 UNTS 13. 62 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195. 63 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 64 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3. 65 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3. 66 See E Baisley, ‘Status-Differentiated Rights’ (2012) 11 Journal of Human Rights 365, 365–66. 67 Alexandra Timmer’s analysis of the ECtHR’s case law gives a good insight into this type of usage. See further A Timmer, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in M ­Albertson Fineman and A Gear (eds), Vulnerability. Reflections on a New Ethical Foundation for Law and Politics (Farnham, Ashgate, 2013) 152–62.

Victims of Trafficking in the Migration Discourse  89 As earlier indicated, the ECtHR and the EU have increasingly relied on vulnerability reasoning. Lourdes Peroni and Alexandra Timmer have shown that the concept of vulnerability, as used by the ECtHR, has three main characteristics: first, the ECtHR does not locate the vulnerability in the individual alone, but in his or her social circumstances – in this sense, vulnerability is relational; second, the ECtHR sees vulnerability as a quality of a particular group member, not as a universal experience shared by all; and, finally, vulnerability is linked to harm.68 Peroni and Timmer identify many interesting challenges regarding the ECtHR’s reliance on the concept. It is especially noteworthy that the ECtHR’s reasoning includes a risk of reinforcing the vulnerability of certain groups by essentialising, stigmatising, victimising and paternalising them. Peroni and Timmer thus ask for a more analytical approach to vulnerability. They argue that the ECtHR should ensure that it is specific about why it considers a certain group vulnerable. In addition, the ECtHR should demonstrate why a particular circumstance or feature makes the individual more prone to certain types of harm or why he or she should be considered and treated as a v­ ulnerable member of the group at hand.69 Even if the authors above make critical remarks as regards the ECtHR’s reasoning, they nevertheless underline that the ECtHR’s use of the concept is more than mere ­rhetoric. As they say: ‘The term does something: it addresses and redresses different aspect of inequality in a more substantive manner.’70 First of all, vulnerability brings with it the potential to prioritise. It enables procedural prioritisations, that is, prioritisations that can be used in order to rationalise the decision-making in, for example, situations of urgency, or when there is a scarcity of resources.71 Furthermore, the concept enables substantial prioritisations, which focus on the content of the decision. These, for their part, help the decision-maker to weigh up different interests.72 B.  Different Categories of Vulnerability As already mentioned above, it is interesting to note that the ECtHR has clearly indicated that migrants and asylum-seekers are a vulnerable group.73 In the EU vocabulary, however, there is a tendency to under-state the vulnerability of asylum-seekers in general and instead to focus on groups that are particularly vulnerable. One of these groups is victims of trafficking. The EU Charter of Fundamental Rights decidedly stipulates that trafficking in human beings is prohibited.74 Besides the recognition of the deplorable nature of these acts at

68 L Peroni and A Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11 International Journal of Constitutional Law 1056, 1064. 69 Peroni and Timmer, ‘Vulnerable Groups’ (2013) 1073. 70 ibid 1074. 71 See also Timmer, ‘A Quiet Revolution’ (2013) 163–64. 72 See also Peroni and Timmer (n 68) 1079–82; and Timmer (n 67) 163–65. 73 MSS v Belgium and Greece, App No 30696/09 (ECtHR, 21 January 2011): ‘The Court attaches considerable importance to the applicant’s status as an asylum-seeker and, as such, a member of a particularly ­underprivileged and vulnerable population group in need of special protection.’ 74 See Charter of the Fundamental Rights of the European Union [2000] OJ C364/1, art 5.

90  Elina Pirjatanniemi the highest hierarchical level of the EU legal order, victims of trafficking have also been granted particular rights and benefits in the secondary legislation. This, again, is motivated by their particular vulnerability. The right to asylum is also guaranteed in Article 18 of the EU Charter of Fundamental Rights. This right is not unconditional, but is dependent on primary and secondary EU law and/or measures enacted under national law.75 In the directives regarding asylum, victims of trafficking are also characterised as a vulnerable group. When Member States are implementing the standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, they have an obligation, according to Article 20(3) of the Qualification Directive (2011/95/EU) to: [T]ake into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. (Emphasis added)

Vulnerability shall also be taken into account in asylum procedures. For example, the Asylum Procedures Directive (2013/32/EU) stipulates that Member States must ensure that those who conduct asylum interviews are competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability. Furthermore, Member States may prioritise an examination of an application for international protection where the applicant is vulnerable. The most comprehensive rules regarding vulnerability are included in the Reception Conditions Directive (2013/33/EU). The necessity of taking into account the specific situation of vulnerable persons, such as victims of trafficking, is laid down in Article 21 as the general and guiding principle concerning the implementation of the Directive. In order to be able to do this, Member States shall assess whether a vulnerable applicant has special receptions needs and what the nature of such needs is. The assessment should be initiated within a reasonable period of time after an application for international protection is made. If special reception needs become apparent at a later stage in the asylum procedure, Member States must be prepared to take them into account accordingly. Special needs should also be properly monitored throughout the asylum process. As regards minors, Member States shall give primary consideration to the best interests of the child. When assessing the best interests of the child, Member States shall take due account of, for example, safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking. Finally, Member States shall also ensure that persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts. These persons should have access to appropriate medical and psychological treatment or care, and those working with them shall have had (and shall continue to receive) appropriate training. This type of support is obviously of the utmost importance for victims of trafficking. 75 F Ippolito, ‘Migration and Asylum Cases before the Court of Justice of the European Union: Putting the EU Charter of Fundamental Rights to Test?’ (2015) 17 European Journal of Migration and Law 1, 19–20.

Victims of Trafficking in the Migration Discourse  91 Besides the asylum procedure, victims of trafficking have access to particular protection regimes. Third-country nationals who cooperate in the fight against trafficking may, according to Directive 2004/81/EC, be granted a residence permit. The permit is of limited duration and it is linked to the length of the relevant national proceedings. If a victim of trafficking is willing to cooperate with the law enforcement authorities, Member States shall ensure that he or she is granted a reflection period, which allows him or her to recover and escape the influence of the traffickers. During the reflection period, the victim is supposed to make an informed decision as to whether to cooperate with the competent authorities. The reflection period may be terminated if the person concerned actively, voluntarily and on his or her own initiative renews contact with the traffickers. After the expiry of the reflection period, the Member State may prolong his or her stay on its territory for the investigations or the judicial proceedings and issue him or her with a temporary residence permit, which shall be valid for at least six months. However, the requirement is that the victim must have shown a clear intention to cooperate with competent authorities. Irrespectively of the victim’s willingness to cooperate, Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable grounds indication for believing that the person might have been subjected to trafficking. According to Directive 2011/36/EU, these support measures shall include standards of living capable of ­ensuring victims’ subsistence, as well as necessary medical treatment, and translation and interpretation services where appropriate. During the criminal proceedings, the victim enjoys the right to legal counselling, and he or she receives the appropriate level of protection. C.  Fluid Categories In the EU secondary legislation, victims of trafficking are explicitly recognised as ­vulnerable persons. Their particular vulnerability is assumed and they benefit from a specific protection regime. What makes the situation problematic is the co-existence of different understandings of vulnerability. Seen from a human rights perspective, it seems evident that irregular migrants, asylum-seekers and victims of trafficking are all in a vulnerable position. Nevertheless, compared to victims of trafficking, the vulnerability of migrants and asylum-seekers is not necessarily beyond doubt. In order to become identified as a vulnerable person, one must fit into the category of vulnerable persons as it is defined within the EU. The mere fact that a person is an irregular migrant or an asylumseeker is not sufficient as such; something more is required. The situation of the victims of trafficking is nevertheless far from optimal. A victim of trafficking has access to a specific protection scheme without having the burden of showing that he or she meets the qualifications of a refugee or person who can be afforded subsidiary protection. He or she can obtain a residence permit if he or she is willing to help the authorities to bring his or her traffickers to justice. On the other hand, this permit is temporary. His or her stronger position is thus only illusory. As soon as he or she is not instrumental to the authorities, his or her right to stay terminates. A victim of trafficking may of course try to seek international protection, but this path is cumbersome as

92  Elina Pirjatanniemi the potential persecutor is usually a non-state actor and the nature of persecution is also atypical compared to ‘normal’ cases of international protection.76 After fierce criticism of the instrumental approach to victims of trafficking, the legal framework in the EU was in fact amended in order to better take into account the human rights of these victims. Nevertheless, the amendments do not change the fact that victims of trafficking have limited possibilities to remain in the territory of the host state. Even if they are particularly vulnerable, this position does not protect them from being returned.77 All this triggers several questions, one of which is linked to the concept of victimhood. It is obvious that irregular migrants who use the ‘services’ of smugglers are easily perceived as active agents rather than as helpless victims. The narrative that describes them concentrates on their choices and aspirations, as well as the risks that they take. Even if the use of smugglers a is not criminalised as such, they are seen as complicit in the crime of smuggling. They are described as ‘illegal’, which associates them with crimes and criminals.78 Victims of trafficking, for their part, easily meet the criteria not only of a victim, but of the ideal victim. They are weak and vulnerable, without agency and cannot be accused of being complicit to the crime. Furthermore, the perpetrator is bad and evil, whereas the victim of trafficking is portrayed as innocent.79 It is something of a paradox that the legal status of these ‘innocent and vulnerable’ victims is made partly dependent on their willingness and ability to contribute to the judicial proceedings against their perpetrators. Another dilemma is that the difference between trafficked victims and smuggled migrants is based on the dubious premise that only the former group experiences harm. This simplistic dichotomy also poses the danger that the exploitation of migrants, and their vulnerability during and after the journey, is not properly acknowledged.80 The conceptualisation of victimhood is based on the assumption according to which migrants are able agents responsible for their fate, whereas victims of trafficking lack agency. When the gender profile of victims of trafficking and irregular migrants is taken into consideration, further remarks on the inherent problems of these two categories can be made. Women and girls represent by far the largest groups of trafficked persons, whereas men and boys are dominant amongst asylum-seekers.81 Interestingly, there also seems 76 On the difficulties involved in recognising violence of non-state actors as relevant in the context of asylum and forced migration, see E Nykänen, Fragmented State Power and Forced Migration (Leiden, Martinus Nijhoff Publishers 2012) 119–27. 77 See V Stoyanova, ‘Victims of Human Trafficking in the Asylum Procedure: A Legal Analysis of the Guarantees for “Vulnerable Persons” under the Second Generation of EU Asylum Legislation’ in C Bauloz, M Ineli-Ciger and V Stoyanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common European Asylum System (Leiden, Martinus Nijhoff Publishers, 2015) 65–66. 78 See also Koser, ‘Asylum Policies, Trafficking and Vulnerability’ (2000) 100–01. 79 N Christie, ‘The Ideal Victim’ in EA Fattah (ed), From Crime Policy to Victim Policy: Reorienting the Justice System (Basingstoke, Macmillan 1986) 17–30. 80 See also Stoyanova, ‘Victims of Human Trafficking in the Asylum Procedure’ (2015) 66; and de Angelis (n 10) 45–46. 81 The distribution of first-time asylum applicants by gender shows that more men than women were seeking asylum in the EU. In 2015, during the worst year of the current crisis, 70 per cent of applicants were men. In 2016, 53 per cent of the applicants were men (ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_ statistics). In 2015 and 2016, 80 per cent of registered victims of trafficking in Europe were female (ec.europa. eu/eurostat/documents/3888793/6648090/KS-TC-14-008-EN-1.pdf/b0315d39-e7bd-4da5-8285-854f37bb8801 and www.globalslaveryindex.org/region/europe).

Victims of Trafficking in the Migration Discourse  93 to be a significant gender bias in the legal conceptualisation of these phenomena. It is an open question whether this reflects real-life experiences or whether the conceptualisation and demarcation between smuggling and trafficking is de facto overshadowed by gendered stereotypes. Nevertheless, from a gender perspective, it is noteworthy that trafficking stands for involuntary and non-consensual, while irregular migration is linked with voluntariness and consensual arrangements. This undoubtedly strengthens the idea of migration that rests on the traditional dualism that identifies women with passivity, reproduction and the private sphere, and men with activity, production and the public sphere.82 As a consequence, the division has an inherent risk of neglecting the fact that migrant men may also be in a very vulnerable position. Simultaneously, the division reinforces the image of the ideal victim, who is dependent, passive and innocent. This, again, makes it difficult to identify the multiple variety of exploitative patterns that people on the move, regardless of gender, encounter. Instead of categorising groups en masse as invulnerable, vulnerable or particularly vulnerable, a stronger focus should be put on the individual and his or her need for ­protection.83 This is essential because at the end of the day, vulnerability is, as Martha Albertson Fineman emphasises, a common human condition. It arises from our ­embodiment, which carries with it an ever-present possibility of harm, injury and misfortune. We can reduce the risks or mitigate the effects of negative events, but they cannot be eliminated completely. Vulnerability is, in other words, both universal and particular. It is universal, as we all share the potential of being in a vulnerable position, and it is particular, as it is experienced uniquely by each of us. The particularity of our vulnerability is, again, significantly dependent on the quality and quantity of the resources we possess.84 In this respect, the efforts to design distinct group-based layers of vulnerability are unnecessary, if not counterproductive endeavours. They simply do not provide us with the proper tools to identify who is in need of protection. The dangers of the use of the concept of vulnerability become even more visible when we focus our attention on institutions and systems – namely, vulnerability is also a condition that can be linked to these. A revealing example is given by Frontex, the ­European Agency of the Management of Operational Cooperation at the External Borders. In its manual regarding the guidelines for intelligence operations and management, vulnerability is determined: [B]y the capacity of a system to mitigate a threat. Vulnerability is understood as the factors at the borders or in the EU that might increase or decrease the magnitude or likelihood of the threat.85

82 See R Andrijasevic, ‘Trafficking: Not a Neutral Concept’ in S Carrera and E Guild (eds), Irregular ­Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 58–63. 83 See also M Heikkilä and M Mustaniemi-Laakso, ‘Seeing the Individual in the Midst of Large-Scale Phenomena: Some Remarks on the European Approach to the Refugee Situation’ [2016] European Yearbook on Human Rights 187, 197–200. 84 M Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1, 8–13. 85 Frontex, Guidelines for Risk Analysis Units: Structure and Tools for the Application of CIRAM Version 2.0 (Warsaw, Frontex, 2012) 109.

94  Elina Pirjatanniemi Here, the external border is construed as vulnerable, while the people crossing it are seen as a threat.86 What we have at hand after all this vulnerability talk is the vulnerable border that is crossed by more or less vulnerable groups and individuals. This could be disregarded as a mere terminological play on concepts if the playground would not be so securitised. All things considered, migration management in fact actualises the question of security. The security perspective regarding smuggling and trafficking is construed differently, but it nevertheless overshadows the debate. In the context of irregular migration, security is mainly threatened by the masses seeking international protection. These persons, potential security threats, are registered, fingerprinted and controlled, and they are often also detained. Even if the asylum procedures guarantee an individual assessment of every applicant’s protection status, the underlying assumption is that the corpus of ‘others’ is potentially dangerous. In the case of victims of trafficking, security is also the lens through which the phenomenon is primarily understood. Even if considerable efforts have been made to strengthen the victim’s perspective, anti-trafficking actions are still largely characterised by efforts to bring dangerous perpetrators to justice. Victims of trafficking are essential instruments in this regard, and after they have contributed to the judicial proceedings, they can be returned to their countries of origin. V. CONCLUSION

As legal concepts, smuggling and trafficking have significant differences. Whereas the person being smuggled is normally cooperating with his or her smuggler, trafficking typically contains an element of force, fraud or coercion. Trafficking involves serious infringements of the human rights of the trafficked persons; at worst, it can be described as modern-day slavery. Smuggling, again, does not normally entail such intensive control of the smuggled person’s life, even if the circumstances during the journey may be very harsh. The motive behind smuggling and trafficking also differ. Smuggling is a contract, where a person facilitates another person’s illegal crossing over an international border. The smuggled pays for these facilitation ‘services’ for the smuggler. After the transaction is completed and the smuggled person has reached his or her destination, the relationship ends. Traffickers for their part have an interest of exploiting the trafficked for a longer period of time. Persons who are trafficked are generally defined and understood as victims. They are victims of human rights violations and they are victims of crime. In comparison, persons who are smuggled are not typically seen as victims of the crime of smuggling; rather, they are construed as complicit in the smuggling crime. Depending on the circumstances in which they are smuggled, they obviously may also become victims of crime. In the EU policy documents, the links between trafficking and smuggling are acknowledged, but they are nevertheless addressed by separate strategies. Trafficking

86 R Andersson, ‘Europe’s Failed “Fight” against Irregular Migration: Ethnographic Notes on a Counterproductive Industry’ (2016) 46 Journal of Ethnic and Migration Studies 1055, 1061.

Victims of Trafficking in the Migration Discourse  95 and smuggling are perceived as interlinked, yet different, phenomena. Unfortunately, the distinctions made do not describe the realities in which the trafficked, and especially the smuggled, find themselves. The circumstances that irregular migrants encounter during their journey to Europe vary. They may be given assistance and support from small-scale entrepreneurs, or they may be exposed to different forms of violations and exploitation. They even face the risk of being trafficked as they are obliged to rely on smugglers. Inevitably, the EU contributes to the creation of a lucrative market, where demand exceeds supply, and prices get higher and higher. Without legal avenues to Europe, the EU is pushing people into smugglers’ and traffickers’ hands. Using the EU’s own vocabulary, it in fact creates vulnerability. The inability to understand this ruthless commercial logic is astonishing, taking into account that the EU is an organisation that was originally created to promote free trade. In addition to the questionable nature of the division made between smuggling and trafficking, our research shows that the vulnerability discourse is not necessarily helping those who are vulnerable. In theory, it enables us to see human experiences that otherwise risk remaining invisible; in other words, it has potential to teach us to listen to those voices we have not heard. Unfortunately, the concept of vulnerability does not yet meet the expectations it raises. One reason for this is that it is used in an over-inclusive manner. In the European debate, not only the migrants and the trafficked but also the border they cross are vulnerable. Needless to say, if almost everything is vulnerable, nothing is vulnerable. Besides being over-inclusive, the concept is also over-exclusive. It contains layers and subcategories that exclude relevant experiences of exploitation. Above all, the group-based use of the concept downplays the misery of migrants. Their agency, their power to make choices and act accordingly is assumed, whereas victims of trafficking are seen as ideal victims. As particularly vulnerable persons, they have access to support and assistance, but only as long as they are useful for the criminal justice system. The particularity of their vulnerability does not protect them from being returned. Vulnerability turns out to be mainly a managerial mechanism of prioritisation. Finally, we are faced with the dilemma Martti Koskenniemi reflected upon in the introduction. By positioning someone as a victim of trafficking, a particularly vulnerable person or mere as an irregular migrant, we make a significant decision. As long as the decision echoes the realities of those forced to move, this is not troubling. But if the distinction is made without reflecting the realities behind our legal categories, the law risks creating more problems than it solves. REFERENCES

Albertson Fineman, M, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1. Andersson, R, ‘Europe’s Failed “Fight” against Irregular Migration: Ethnographic Notes on a Counterproductive Industry’ (2016) 46 Journal of Ethnic and Migration Studies 1055. Andrijasevic, R, ‘Trafficking: Not a Neutral Concept’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 58–63.

96  Elina Pirjatanniemi Baisley, E, ‘Status-Differentiated Rights’ (2012) 11 Journal of Human Rights 365. Börzel, TA, ‘Mind the Gap! European Integration between Level and Scope’ (2005) 12 Journal of European Public Policy 217. Christie, N, ‘The Ideal Victim’ in EA Fattah (ed), From Crime Policy to Victim Policy: Reorienting the Justice System (Basingstoke, Macmillan, 1986) 17–30. Collyer, M, ‘Cross-border Cottage Industries and Fragmented Migration’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 17–23. De Angelis, M, Human Trafficking: Women’s Stories of Agency (Newcastle upon Tyne, Cambridge Scholars Publishing, 2016). Den Heijer, M, Rijpma, J and Spijkerboer, T, ‘Coercion, Prohibition, and Great Expectations: The Continuing Failure of the Common European Asylum System’ (2016) 53 Common Market Law Review 607. European Council on Refugees and Exiles (ECRE), The Concept of Vulnerability in European Asylum Procedures (Brussels, ECRE, 2017). European Union Agency for Fundamental Rights, Fundamental Rights Report 2017 (Luxembourg, European Union Agency for Fundamental Rights, 2017). Europol, Migrant Smuggling in the EU (The Hague, Europol, 2016). Frontex, Guidelines for Risk Analysis Units: Structure and Tools for the Application of CIRAM Version 2.0 (Warsaw, Frontex, 2012). Goodey, J, ‘Migration, Crime and Victimhood: Responses to Sex Trafficking in the EU’ (2003) 5 Punishment & Society 415. Heikkilä, M and Mustaniemi-Laakso, M, ‘Seeing the Individual in the Midst of LargeScale Phenomena: Some Remarks on the European Approach to the Refugee Situation’ [2016] European Yearbook on Human Rights 187. Huysmans, J, ‘The European Union and the Securitization of Migration’ (2000) 38 Journal of Common Market Studies 751. Iglesias Sánchez, S, ‘The Constitutional Status of Foreigners and European Union Citizens: Loopholes and Interactions in the Scope of Application of Fundamental Rights’ in Daniel Thyme (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Oxford, Hart Publishing 2017) 243–66. Ippolito, F, ‘Migration and Asylum Cases before the Court of Justice of the European Union: Putting the EU Charter of Fundamental Rights to Test?’ (2015) 17 European Journal of Migration and Law 1. Jokinen, A, ‘Irregular Migration, Trafficking in Persons and Prevention of Exploitation’ in S Carrera and E Guild (eds), Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU (Brussels, Centre for European Policy Studies (CEPS), 2016) 70–73. Koser, K, ‘Asylum Policies, Trafficking and Vulnerability’ (2000) 38 International Migration 91. Koskenniemi, M, ‘The Effect of Rights on Political Culture’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press 1999) 99–116. Mustaniemi-Laakso, M et al, The Protection of Vulnerable Individuals in the Context of EU Policies on Border Checks, Asylum and Immigration, Large-Scale FP7 Collaborative Project, Work Package No 11–Deliverable No 3 (Leuven, Frame, 2016).

Victims of Trafficking in the Migration Discourse  97 Nykänen, E, Fragmented State Power and Forced Migration (Leiden, Martinus Nijhoff Publishers, 2012). Ollus, N, From Forced Flexibility to Forced Labour: The Exploitation of Migrant Workers in Finland (Helsinki, European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI), 2016). Peroni, L and Timmer, A, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11 International Journal of Constitutional Law 1056. Rosas, A and Armati, L, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2010). Salt, J and Stein, J, ‘Migration as a Business: The Case of Trafficking’ (1997) 35 International Migration 467. Stoyanova, V, ‘Victims of Human Trafficking in the Asylum Procedure: A Legal Analysis of the Guarantees for “Vulnerable Persons” under the Second Generation of EU Asylum Legislation’ in C Bauloz, M Ineli-Ciger and V Stoyanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common European Asylum System (Leiden, Martinus Nijhoff Publishers, 2015) 58–108. ——. Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law (Cambridge, Cambridge University Press, 2017). Timmer, A, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in M Albertson Fineman and A Gear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Farnham, Ashgate, 2013) 147–70. Vermeulen, G, van Damme, Y and de Bondt, W, ‘Perceived Involvement of “Organised Crime” in Human Trafficking and Smuggling’ (2010) 81 Revue Internationale de Droit Pénal 247.

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6 Understanding Trafficking in Human Beings as Mixed Migration The European Area of Freedom, Security and Justice and its Global Width ESTER HERLIN-KARNELL*

I. INTRODUCTION

W

hen the European Union (EU) promises to ensure freedom, security and justice, and thereby combat crime and other irregularities, the legal framework for doing so is chiefly constructed through preventive regulation and the notion of meeting the need for the EU to attain a high level of security. A central component of this mission, and as part of the EU project of ensuring sufficient rights protection, is the fight against trafficking in human beings.1 Indeed, as the EU Charter of Fundamental Rights proclaims, trafficking in human beings is prohibited, as it goes against the basic idea that all human beings are entitled to equality and freedom. Therefore, freedom from trafficking is considered an essential presupposition of any minimum definition of a decent life in modern society and, as such, is based upon the rule of law and human rights. While this volume asks what is wrong with trafficking, an obvious answer to the ­question is that trafficking in human beings – modern slavery as it is sometimes referred to – is criminalised for a reason. The claim is that trafficked people are not treated as humans and that, in itself, is wrong.2 Specifically, dignity is denied to those who are trafficked. Yet what if people consent to trafficking? Many criminal lawyers would ask this question in defending the libertarian contractual viewpoint in which freedom to do as * My thanks go to the participants at the Stockholm, Amsterdam and Tübingen workshops in 2016 and 2017 respectively for their useful comments. Thanks also to Alon Harel for his helpful comments and to Chris Engert and Jon Lloyd for their excellent proofreading, with the usual disclaimer. 1 This is done through approximating Member State laws in various related fields as stated in art 67 of the Treaty on the Functioning of the European Union. 2 See also the chapter by Farmer in this volume. And see, for example, A Margalit, The Decent Society (Cambridge, MA, Harvard University Press, 1998). On the history of criminal law and civilisation, see also L Farmer, Making the Modern Criminal Law (Oxford, Oxford University Press, 2016) chs 1–2.

100  Ester Herlin-Karnell one pleases is of utmost importance in society.3 Can there be voluntary slaves? In the context of trafficking, defending classic libertarian views that everyone should be free to do as they please seems to miss an important dimension as to whether one is interested in robust human rights legislation. First of all, trafficking in human beings is, in the majority of cases, not voluntary. As Debra Satz points out: [D]emocratic societies depend on the ability of their citizens to operate as equals. This means not only that in such societies people have equal rights, but also that they see themselves as having equal basic rights, understand and act on the requirements of justice, and accept that they and others are self-authenticating sources of claims who do not need to ask permission to have and make demands.4 (Emphasis in original)

This chapter adds an additional complication to the moral and legal questions as to why trafficking in human beings is wrong by focusing on the EU and the global implications of the current EU measures to tackle the migration crisis and the phenomenon of mixed migration.5 The flows of people to Europe in recent years have seriously blurred the lines between the different categories of migrants. Mixed flows of people may include undocumented, unauthorised, smuggled, trafficked or other migrants seeking refuge and asylum.6 The concept poses numerous questions as to what legal framework is applicable for addressing this open-textured phenomenon, as well as broader theoretical questions concerning rights and territoriality. Why then should there be a constitutional position for researching the phenomenon of trafficking in a global security context? The alternative to a constitutional perspective would mainly revolve around administrative measures through its immigration law policies. This chapter contends that a turn to constitutionalism is more human rightsfriendly and better groundwork for the EU than the administrative pathway in EU security regulation, most prominently found in the EU’s anti-terrorism and migration law policies. Furthermore, the practice of security regulation in the EU with regard to detention (both in immigration and in anti-terrorism cases) is too often tilted towards concerns of ‘effectiveness’ rather than fairness. A constitutional outlook therefore seems a crucial choice both for the safeguards of human rights and for the legitimacy of the Area of Freedom, Security and Justice (AFSJ) project. Yet recent studies in global administrative law have emphasised the difficulties involved in securing legitimacy for any system situated beyond the nation state and have criticised the constitutional lens.7 ­Nevertheless, the importance of a constitutional outlook for securing human rights standards at the meta-state level is difficult to deny, especially in criminal law-related contexts where administrative provisions guarantee neither the full safeguards set up by the European Convention on Human Rights (ECHR) nor those rights guaranteed by the Charter of ­Fundamental Rights. What still needs to be tackled, from a constitutionalism perspective, is the ­question of 3 See the interesting chapters by Hörnle and Bergelson in this volume, defending this view. 4 D Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (Oxford, Oxford University Press, 2010) ch 8, 185. 5 See also the chapter by Pirjatanniemi in this volume. 6 See www.unhcr.org/pages/4a16aac66.html. 7 For example, P Lindseth, Equilibrium, Democracy, and Delegation: On the ‘Administrative, Not ­Constitutional’ Legitimacy of European Integration, Jean Monnet Working Paper 07/13 (New York, Jean Monnet Center for International and Regional Economic Law & Justice, 2013); and N Krish, Beyond ­Constitutionalism (Oxford, Oxford University Press, 2010).

Understanding Trafficking in Human Beings as Mixed Migration  101 the legitimacy of the AFSJ regime. The EU has an obligation to act as a promoter of EU values in line with the well-known trinity of rule of law, human rights and democracy.8 In the following, I set out to explore the question of how trafficking understood as mixed migration fits into the EU constitutional framework and why its criminalisation is important. The chapter is structured as follows. First, I will briefly paint the background picture of what we mean by EU security regulation, what we are discussing and why it matters in the context of trafficking in human beings. Subsequently, the chapter tentatively looks at the implications of a constitutional structure for understanding trafficking and the importance of constitutionalism in this process. Finally, the chapter will look at the specific function of courts, both the Court of Justice of the European Union (CJEU) as well as, more specifically, the role of national courts and the possible implications of fiduciary obligations. As argued by Malcolm Thorburn in his chapter in this volume, a crucial reason for the sovereign state to legislate against trafficking is to remain in control of its borders (trafficking can also occur domestically, but the inter-state dimension is more common). This is why there are no open borders and why nation states claim to have the unilateral power to decide who to let in and who to expel. Therefore, by criminalising trafficking in human beings, the legislator also claims that it controls its territory.9 In this context, arguably, courts and the institutes of judicial review play an important role as ‘back-up’ organisations for checking that the system in question is robust enough when the state operates in public and human rights law matters.10 The underlying question in this chapter is the relationship between the EU’s security framework and constitutionalism when applied to mixed migration and what conceptual lessons can be drawn from this intersection for understanding the EU’s approach to outsiders. One key underlying issue is the following. What, if any, justification does the EU offer those entering its territory in submitting them to its current forms of regulation? Could one reasonably claim that this right to justification amounts merely to ‘a right of due process/to be treated fairly’? The chapter discusses these rather big theoretical questions by zooming in and out on the phenomenon of trafficking as a question of mixed migration and understood from the prism of constitutionalism. In trying to sketch out those questions in more detail, broader contextual and background questions must first be acknowledged. Thus, the chapter will briefly map the main legislative grid in the EU and global settings. II.  THE PLETHORA OF LEGISLATION ON TRAFFICKING: TOO MUCH OR TOO LITTLE?

Currently the EU recognises its duties to criminalise trafficking in human beings and, as this chapter will argue, this is the right approach. Much legislative action has taken place globally in the fight against trafficking, particularly since the entry into force of 8 M Kumm, ‘Constitutionalism and the Moral Point of Constitutional Pluralism’ in P Eleftheriadis and J Dickson (eds), Philosophical Foundations of EU Law (Oxford, Oxford University Press, 2012) ch 9. 9 As Schmitt argued, sovereign is he (or she) who decides on the exception. On this challenge in the context of the rule of law, see E Criddle and E Fox-Decent, Fiducaries of Humanity (Oxford, Oxford University Press, 2016) 142–43. 10 See A Harel, Why Law Matters (Oxford, Oxford University Press, 2014) ch 2.

102  Ester Herlin-Karnell the ­Trafficking in Persons Protocol in 2003.11 The EU has had legislation in place for a long time, first a framework decision in 2002 and subsequently a Directive adopted in 2011.12 The Directive was recently evaluated by the EU Commission and is subject to constant monitoring and updating.13 Article 4 of the European Convention on Human Rights (ECHR) makes forced slavery a human rights crime, and the ECHR has binding general principles for the EU and treaty-based obligations for its Member States. The prohibition of trafficking is also listed as a core concern in the EU Charter of ­ Fundamental Rights. Specifically, in Article 5 of the EU Charter, on the prohibition of trafficking and forced labour, it is stated that: 1. 2. 3.

No one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour. Trafficking in human beings is prohibited.

In addition, the fight against trafficking forms part of the EU policy domain of the AFSJ. Specifically, Article 83 of the Treaty on the Functioning of the European Union (TFEU) makes it clear that the EU is to adopt criminal measures to fight trafficking in human beings. Thus, Article 83 singles out terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. These are considered the specific EU crimes with a clear cross-border dimension. Furthermore, Article 79 TFEU stipulates that the EU is to develop a common immigration policy and focuses inter alia on enhancing measures to combat illegal immigration and trafficking in human beings, and stresses that the EU is to combat trafficking in persons, in particular that of women and children. Interestingly, for our purposes, the EU has recently issued a Strategy towards the ­Eradication of Trafficking in Human Beings 2012–16.14 This report refers to the Migration Agenda 2015 and stipulates that there is strong evidence that the migration crisis has been exploited by criminal networks involved in trafficking in human beings to target the most vulnerable, in particular women and children. According to the report,

11 United Nations, Treaty Series, vol 2237, 319; Doc A/55/383, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, available at: www.unodc.org/documents/data-and-analysis/glotip/­Trafficking_ in_Persons_2012_web.pdf. 12 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1. See the chapters by Albrecht and Farmer in this volume. 13 See n 11 above. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime defines trafficking in persons as follows: ‘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, 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’. 14 European Commission/Home Affairs, The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 (Brussels, European Commission, 2016).

Understanding Trafficking in Human Beings as Mixed Migration  103 t­raffickers increasingly abuse asylum systems, which makes it harder to discover it from other forms of mixed migration. In particular, it is often pointed out that trafficking is difficult to distinguish from smuggling in humans. The distinction is crucial because of the extended protection offered to the victims of trafficking with the further important practical consequence that compensations to victims may differ between countries.15 While human trafficking and migrant smuggling are two distinct crimes, the two phenomena frequently overlap. But the prevention of and the fight against migrant smuggling is, as the EU Commission rightly points out, a complex process, affected by contextual factors, including a high level of economic and social disparity between the EU and several third countries. The Commission points at difficult cooperation with the source and transit countries, and the limited legal migration channels to the EU. In the context of the increasing control of borders to prevent irregular migration, many potential migrants turn to organised criminal groups in order to arrange their border crossings. As the EU policy documents point out, smuggled migrants are generally unaware of the risks involved in these transactions and they often become victims of abuse by organised crime syndicates. Finally, the European Agenda on Migration 2015 is instructive, as it expressly states that although migrant smuggling and trafficking are two diverse criminal activities perpetrated by criminal networks, they are also interlinked, since persons who start their journeys in a voluntary manner can also be vulnerable to networks of labour or sexual exploitation.16 One of the core criticisms of the EU’s action in this area is that the policies need to provide a flexible framework to meet the challenges of increasing human mobility.17 Furthermore, it has been suggested that immigration policies need to devote more attention to the regional and local specificities of the phenomenon and the enforcement of the existing EU human rights acquis.18 More broadly, it also raises the question of the EU’s responsibility to outsiders. As noted above, the trafficking offence is one of the ‘core’ EU criminal offences and, as such, it is listed in the AFSJ. It has a clear symbolic message and is connected to the EU values and the human rights obligations set out in the EU Charter and embedded in the ECHR. It also has a clear expressive dimension of EU values, which is why the EU legislator has decided that it needs to be legislated at the EU level rather than at the national level. In addition, it is part of the migration policies of the Member States. Given the multifaceted nature of the trafficking phenomenon, it seems fair to conclude that it is a constitutional right not to be subject to trafficking or enslavement. Unlike other areas, such as the case of national security anti-terrorism measures, in the migration context, it is seldom the case that the risks to citizens are life-threatening (with the exception of the Mediterranean crossings on over-loaded boats).19 Yet ­interestingly,

15 However, see Council Directive 2004/80/EC [2004] OJ L 261, 6 August, 15–18. See also European Treaty Series No 116 European Convention on the Compensation of Victims of Violent Crimes. On victims, see also the chapters by Haverkamp and Pirjatanniemi in this volume. 16 See also the chapter by Pirjatanniemi in this volume. 17 European Commission, A European Agenda on Migration 2015, COM (2015) 240 final (Brussels, European Commission, 2015). 18 ibid. 19 I Mann, Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge, Cambridge University Press, 2016) ch 4.

104  Ester Herlin-Karnell the ECHR emergency provision Article 15 allows state signatories to derogate from their human rights obligations in states of emergency. However, a core set of the convention’s provisions are not ‘derogable’ and are absolute, such as the right to life. The point, for our purposes, is that there is a connection between the EU and the national responses to the emergency-driven nature of the migration crisis and mixed migration and that of terrorism. III.  EU SECURITY REGULATION AND MIXED MIGRATION

The regulation of trafficking in human beings in the EU context has a multifaceted ­function. On the one hand, it is related to the security mission in the EU. On the other hand, it is linked to the migration governance aspect and free movement within the EU. Moreover, the EU stance on the prohibition of trafficking in human beings has a significant symbolic element of ensuring and entrenching human rights as well as ensuring compliance with international law obligations. While trafficking and the smuggling of people is a key concern for the EU, in its Migration Agenda (2015) on how to tackle the migration crisis, the EU wants to prevent smugglers from entering into contracts with desperate migrants and refugees, and trafficking has been criminalised for a long time.20 The common assumption is that smuggling is done with consent, while trafficking is not. While this chapter argues that trafficking should be criminalised, the purpose of this chapter is to cast a clarifying light on the constitutional and human rights questions that arise in the context of mixed migration, ie, when the question as to who is an asylum seeker, a trafficked person/migrant or a smuggled migrant is not so clear. The question of trafficking is complex precisely because it involves mixed migration. Migrants are often driven economically to seek a home elsewhere, while refugees are politically persecuted and forced to leave their homes. This sometimes blurred distinction has prompted Thomas Pogge, for example, to argue that, from a global justice perspective, there is no good reason to distinguish so sharply between someone being imprisoned for his or her beliefs, and someone working in a factory for 16 hours a day in slavery-like conditions.21 As Max Cherem points out: While immigrants and refugee-like outsiders lucky enough to make it to well-off shores would be benefitted by (and have strong interests in) membership, they are only entitled to have their unfulfilled basic needs met.22

In addition, there seems to be no binding duty among EU Member States to assist an overburdened state and even entering such a debate has been criticised for mimicking debates about carbon trading.23

20 European Commission, A European Agenda on Migration 2015 (2015). 21 See the discussion in C Lafont, ‘Sovereignty and the International Protection of Human Rights’ (2015) 23 Journal of Political Philosophy 1; A Buchanan, The Heart of Human Rights (Oxford, Oxford University Press, 2012). 22 M Cherem, ‘Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere’ (2016) 24 Journal of Political Philosophy 183. 23 A Zylberman, ‘Why Human Rights? Because of You’ (2016) 24 Journal of Political Philosophy 1.

Understanding Trafficking in Human Beings as Mixed Migration  105 Moreover, migrants and refugees increasingly make use of the same routes and means of transport to get to an overseas destination. If the people who make up these mixed flows are unable to enter a particular state legally, they often employ the services of human smugglers and embark on dangerous sea or land voyages, which many do not survive.24 As a UN document stresses, international migration flows have become increasingly mixed, whereby refugees and asylum-seekers in need of international protection move alongside migrants in search of better livelihoods. As a result of increasingly mixed migration flows, it has become more difficult to identify refugees and asylumseekers from other international migrants, including those who are trafficked or at risk of being trafficked.25 In addition, trafficking seems to be gender-specific: recent studies by the UN have shown that 75 per cent of trafficked people are women and children.26 Clearly, the complexity of mixed migration has intensified both in the recent refugee crises and in the current crisis in the EU, which escalated in 2015.27 The Dublin Regulation III sets out to ensure that refugees are sent back to the first state in which they entered the EU, but they cannot be sent ‘back’ to where they are subject to persecution etc and must be allowed to acquire membership in a state somewhere. In our case, this ‘­somewhere’ for the most needy to call a home is Europe. This claim rests on two incongruent states of affairs: on the one hand, the EU system broadly complies with the principle of non-refoulement according to which: No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

EU law does not grant a general right to asylum, but such a right is contingent on the Geneva Convention (Article 18 of the Charter of Fundamental Rights). In addition, legal systems that deal with mixed migration and trafficking are challenged by the question of the causal origins that generate the geographical movement in question, alternately framed in terms of objective cause or subjective motive, when attempting to categorise subjects and allocate legal entitlements. A.  The Question of Justification and EU Shifting Borders It seems to me that one key underlying issue is the following, and it is worth asking even if it cannot be answered fully. What, if any, justification does the EU offer those entering its territory in submitting them to its current forms of regulation? Perhaps this poses the question as to why the EU needs to offer a justification in the first place. Could one reasonably claim that this right to justification amounts merely to ‘a right of due process/to 24 www.unhcr.org/pages/4a16aac66.html. 25 United Nations/Department of Economic and Social Affairs, International Migration Policies: Government Views and Priorities (New York, United Nations, 2013). 26 UNODC, Global Report on Trafficking in Persons (New York, United Nations, 2012). The same study demonstrated that trafficking networks also widely use women as the recruiters of victims of sexual exploitation, as they may be more easily trusted by other females, who are more vulnerable to this type of trafficking. 27 On the potentially problematic definition of a refugee, see Cherem, ‘Refugee Rights’ (2016) 183.

106  Ester Herlin-Karnell be treated fairly’ as was mentioned above? Trafficking in human beings is clearly against the idea of fairness and justice. But why is this relevant in the context of mixed migration? Contemporary constitutional law has for a long time been absorbed with the discussion of the question of ‘outsiders’ and justification in the context of the Kantian idea of a ‘cosmopolitan right’ that requires those who arrive in the territory of a foreign state to be received without hostility or discrimination.28 Thus, Allen Buchanan stands for a certain cosmopolitan tradition in claiming that the basic idea behind the international legal regime of human rights is to regulate the behaviour of states towards all individuals within their ­jurisdiction.29 This, however, is a problem on the regional and global stage if one wants to achieve a universal rights system beyond the state, as in the case of the EU. This may even be extended to a requirement that the EU expresses and applies its obligation to accord safety and protection through operations that extend beyond its territory by, for example, the European coastguard (Frontex) outside the shores of Europe. Such externalisation and extension of EU law would require a compelling discursive construction of the relationship between the EU and the trafficked/migrant/refugee/smuggled person, whereby the relationship enters into force before the migrant/refugee/trafficked enters the EU space. Given that one can hardly claim that the EU has effective control over its external borders, how can it then ground such jurisdiction? According to the CJEU, border and migration enforcement activities can stretch beyond the actual, territorial border of Members States.30 Against this background, Ayalet Shachar has noted the EU has authorised ‘border officials responsible for border surveillance and the monitoring of foreign nationals’ to carry out their activities within an area of 20 kilometres distance from the border, creating, as she argues, a European variant of the ‘constitution-free’ zone.31 Why is this so? Does the EU not have its own constitution? In the Melki and Adeli32 cases, the Court of Justice was asked whether the French national criminal law code that authorises border controls at the borders with other Member States is contrary to the principle of freedom of movement for persons, as set out in Article 67(2) TFEU, which provides that the EU is to ensure the absence of internal border controls for persons. The Court held that national legislation may not grant a blanket use of policing powers to the police where that legislation does not provide the necessary framework for that power to guarantee that its practical exercise cannot have an effect equivalent to border checks. The EU Court was more interested in constructing a European framework of borders and security within those borders and also curbing national powers than depriving individuals of their rights. This is problematic when the rights standard is lowered as a consequence of this. Hence, it could be argued that discussing the question of justification to outsiders presupposes a constitutional environment at the EU metalevel. But before addressing the meta-level, we need to know in brief terms what form of constitutionalism is proper. According to Liav Orgad, for example, constitutionalism 28 On Kant and cosmopolitan rights, see A Ripstein, Force and Freedom (Cambridge, MA, Harvard University Press, 2009). 29 Buchanan, The Heart of Human Rights (2012). 30 For example, Case C-278/12 PPU Adi, judgment of 19 July 2012, 31 A Shachar, ‘New Borders and Citizenship Constellations’ (draft conference paper presented at WZB Berlin, December 2015 on file with the author). 32 Joined Cases C-188/10 and C-189/10 Melki and Abdeli, judgment of 22 June 2010.

Understanding Trafficking in Human Beings as Mixed Migration  107 is justified for at least two reasons.33 First, it is based upon democratic consent, and hence the decision to become a citizen of a particular state means that one accepts the constitutional essentials of that state. Second, the idea of constitutionalism is based upon fairness. A constitution in this context means a set of fundamental principles and institutions according to which a state is organised. Consider again the core cases of trafficking and smuggling in human beings. If the question of mixed migration is seen in the broader light of global justice and constitutionalism, and if questioning whether the EU should take into account the needs of those outside EU territory when legislating on new security regulation, then the security threat becomes less of the excluded versus the included and more centred on the rights of the individual. And this is connected to what Seyla Benhabib has referred to as ‘the right of others’ (and, perhaps more broadly, Hannah Arendt’s the ‘right to have rights’).34 If the question of trafficking is discussed or challenged as a question of mixed migration rather than through a harm-based conception in criminal law (where the harm in question is rather diffuse and difficult to measure), what, if any, advantages may this bring? So, in the context of territoriality, what is debated is, perhaps, a general right to justice in Kantian cosmopolitan terms, substantiated in a due process right rather than a right to relocation as such. Increasing human rights protection by looking at it from (global) constitutionalism, rather than technical differences and administrative practices to trafficking and migration, asylum smuggling and so on, seems to represent a more workable solution, despite theoretical flaws. This is because the idea of sovereignty is weakened when it concerns fundamental human rights protection.35 When borders are weakened and regimes ‘go global’, the robustness of the human rights regulation needs to be secured in a way that increases, rather than decreases, protection, while avoiding accusations of a lack of legitimacy and democratic accountability.36 This chapter argues that understanding this is connected to the theme of justification and to the EU’s obligations towards those entering the EU space. Consequently, to recap, one of the reasons why the question of trafficking is complex is precisely because it involves mixed migration. Migrants are often economically driven to seek a home elsewhere, while refugees are politically persecuted and forced to leave their homes. IV.  EXPRESSIVE DIMENSION AND OBLIGATION TO CRIMINALISE

As already noted, the regulation of trafficking in EU context forms part of the EU strategies against illegal migration and, as part of the fight against cross-border crime, is

33 L Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (Oxford, Oxford University Press, 2015) 212–13. 34 S Benhabib, The Right of Others: Aliens, Residents and Citizens (Cambridge, Cambridge University Press, 2004). Citizenship of the EU is also exclusive to the EU territory. 35 M Kumm, ‘Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities and the Proper Domain of the Consent Requirement in International Law’ (2016) 79 Law and Contemporary Problems 239. 36 See discussion in Lafont, ‘Sovereignty and the International Protection of Human Rights’ (2015); Buchanan (n 22).

108  Ester Herlin-Karnell fascinating in the context of mixed migration. For one thing, as mentioned above, it seems to have something of an expressive dimension to it. One question that automatically arises in this context of security and when discussing the identity of the AFSJ is the extent to which this identity mission is more broadly tied to the EU’s expressive function. It could be argued that criminal law offers one of the most interesting case studies of what is meant by ‘expressive’. Criminalisation at the EU level offers a particularly clear example of where the legislator often relies on expressive justification when proposing new legislation. In other words, there is a clear symbolic dimension at stake.37 It has been argued, for example, that the fight against racism and xenophobia provides an example of where measures were justified mainly upon the basis of the symbolic rather than the actual need for them. While the offence of trafficking is largely difficult to tackle precisely because it involves mixed migration, it is also one with symbolic elements and sets the standard for how we live together in Europe. As explained above, trafficking as part of the illegal immigration framework in EU law is dealt with through administrative procedures. From this perspective, criminalisation seems to have many benefits compared to the administrative procedure and detention without trial that seems to signify EU migration procedures at present. Let us call this the right to criminalisation. As Alon Harel states: The duty to criminalize and the duty to constitutionally entrench the duty to criminalize are grounded therefore in the concern that life and liberty ought not to be left to the mercy of other individuals or even to the mercy of the legislature itself.

To paraphrase Harel (citing Thomas Nagel): To be trafficked would be terrible: but to be trafficked and also be someone it was not wrong to traffic would be even worse.38

Interestingly, and fitting to this contribution, as Harel argues, it is non-domination that ought to guide us here when deciding on criminalisation. Certainly, the classic benchmark for testing the level of freedom in a given society is commonly the republican yardstick of ‘non-domination’.39 Because freedom as non-domination is a status that one enjoys in relation to other people, which stems from one person or group (or the state) being able to interfere with another person (or group) arbitrarily, Philip Pettit claims that nondomination is an egalitarian concept.40 In order to identify the notion of domination, Pettit uses the well-known slave-master example as the prime example of ‘unfreedom’.41 Yet with regard to the freedom as a non-domination benchmark and in the context of applying the theories advocated by Pettit to criminal law, Vincent Chiao has recently

37 I Turner, ‘The Expressive Dimension of EU Criminal Law’ (2012) 60 American Journal of Comparative Law 1. 38 Harel, Why Law Matters (2014). 39 See, for example, A Tomkins, Our Republican Constitution (Oxford, Hart Publishing, 2005) 46–52. 40 C Rostboll, ‘Non-domination and Democratic Legitimacy’ (2015) 18 Critical Review of International Social and Political Philosophy 424. 41 P Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge, Cambridge University Press, 2013); and F Schubbert, ‘Non-domination, Non-alienation and Social Equality: Towards a Republican Understanding of Equality’ (2015) 18 Critical Review of International Social and Political Philosophy 440.

Understanding Trafficking in Human Beings as Mixed Migration  109 asked whether, under the non-domination theory, for example, police officials using force against suspects are therefore dominating.42 According to Chiao, the simple fact that, for example, police and prosecutors have the uncontrolled discretion to interfere in this way is itself dominating, even if it were exercised in an entirely reasonable manner.43 Yet in my view, this does not mean that non-domination is not relevant to criminalisation theory. This is because, according to the non-arbitrariness requirement, only arbitrary domination that cannot be justified is a prohibited form of domination if one views non-domination as freedom. Closely associated with the non-domination path are dignity-oriented views such as the one suggested by Rainer Forst, which appears fitting to criminal law procedure as it focuses on the right to justification.44 This seems particularly relevant in the context of the trafficking in human beings, where the rationale behind criminalisation is to prevent any enslavement of human beings.45 Dependence renders a person vulnerable to the whims of others; it exposes a person to the potential interference of a dominant agent.46 Notwithstanding this, there is a debate in the scholarship on human trafficking focusing on social aspects – rather than on criminal law – by arguing for a move away from human rights law-oriented regulation and against criminalisation to a labour law regulation which focuses on policy outcome and life prospects for those who are trafficked.47 If the social standards were higher and regulated minimum wages were applied, surely there would be no demand for trafficked people? I believe the EU is different from many other regimes when it comes to the migration law aspect. In the US context, one argument against the criminalisation of trafficking has been the concern that trafficked people would then fall into the criminal law camp or be expelled. Thus, the argument is that people would be exploited and vulnerable through being part of the criminalised gang, while, in Europe, people subjected to trafficking are seen as victims and are not subject to deportation according to the 2011 Directive. However, a labour perspective that suggests that trafficking may be caused by structural features common to significant parts of the entire labour market would challenge the assumption that trafficking is a rare and extreme occurrence that occurs upon an ­individual basis.48 The question, then, seems highly context-dependent. Given all this, why then should the EU criminalise, as it does, the trafficking offence? Are we merely discussing ‘law in the books’, but forgetting ‘law in action’ and enforcement? As noted above, the trafficking offence is one of the ‘oldest’ in EU criminal law and has a clear symbolic message to it which is connected to the EU values and the human rights obligations set out in the EU Charter and embedded in the ECHR. It is also one

42 V Chiao, ‘Discretion and Domination in Criminal Law Procedure: Reflections on Pettit’ (2016) 15 Politics, Philosophy & Economics 92, 92–110. 43 ibid. 44 On the right to justification, see R Forst, The Right to Justification (New York, Columbia University Press, 2012). 45 P Pettit, ‘A Republican Law of Peoples’ (2010) 9 European Journal of Political Theory 70, 70–94. 46 ibid. 47 H Shamir, A Labour Law Paradigm (2012) 60 UCLA Law Review 78. See also YJ Shin, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of ­Transnational Law 753, 753–812. 48 See also the chapter by van Kempen and Lestrade in this volume.

110  Ester Herlin-Karnell with a clear expressive dimension of EU values, which is why the EU legislator has decided it needs to be legislated at the EU level rather than at the national level. In addition, as mentioned above, it is part of the migration policies. Given this multifaceted nature of the trafficking phenomenon, it seems fair to conclude that it is a constitutional right not to be subjected to trafficking or enslavement. The EU has not acceded to the ECHR. In its Opinion 2/13, the CJEU concluded that the present EU legal framework could not accede to the ECHR, as the planned arrangements for complying with the obligation imposed on the EU by Article 6(2) TEU to accede to the ECHR are not compatible with EU law.49 What is interesting is that the Court, in its judgment in Opinion 2/13, especially singled out the AFSJ as a crucial area in which the EU’s relationship to the ECHR and in which the notion of ‘trust’ is vital, yet largely under-studied. The Court held that the trust principle requires, particularly with regard to the AFSJ, each Member State (save in exceptional circumstances) to consider all the other Member States to be complying both with EU law and particularly with the fundamental rights recognised by EU law. This highlights how critical it is to understand the parameters that make up the AFSJ. Again, as argued above, a move away from criminalisation to administrative provisions in immigration law is not desirable. This chapter therefore argues that the offence of trafficking ought to remain criminalised and that the various labour law regulations should be taken care of by the extensive EU law framework on free movement that applies once people are within the EU. EU victims who have been subjected to trafficking within the EU and hold EU membership are already protected by the EU legislative framework and the provision on EU citizenship. The question in this respect concerns instead the question of enforcement and why it is not working. What this chapter will do now is to discuss briefly the following scenario. What are the exact obligations of national courts when they are asked to decide on the level of human rights protection? When international law and EU obligation sometimes stand in conflict with national constitutional law, should the EU dogma of supremacy always play out in favour of the supranational level? V.  NATIONAL COURTS AND FIDUCIARY OBLIGATIONS: WHEN THE EU STANDARD IS NOT ROBUST ENOUGH

When the EU regulates trafficking as part of mixed migration, it very often also extends EU jurisdiction beyond its borders. Often the ‘new’ regime, ie, the extended jurisdiction, does not have a fully fledged human rights regime to accompanying it. As Lafont points out: What the political process cannot possibly guarantee, the legal process typically does: the individual right to a fair hearing in which explicit, reasoned justifications for and against a contested statute become publicly available for political deliberation.50

49 Opinion 2/13 delivered 18 December 2014. 50 C Lafont, ‘Philosophical Foundations of Judicial Review’ in D Dyzenhaus and M Thorburn (eds), ­Philosophical Foundations of Constitutional Law (Oxford, Oxford University Press, 2016).

Understanding Trafficking in Human Beings as Mixed Migration  111 In the national context, this begs the question of whether courts have a duty of ‘trusteeship’ or a fiduciary obligation of constitutional rights for individuals when the current EU law regime does not offer a sufficiently high human rights standard according to its constitutional culture.51 Constitutional rights are often said to function as a filtering mechanism through which we can determine what sorts of treatment of persons by the state are consistent with their status as free and equal bearers.52 With regard to the relationship between the CJEU and the national courts, the free and equal paradigm should, perhaps, fall within the national margin of appreciation (not just ECHR but also EU law proportionality).53 Since limitations on rights must be ‘rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations’, this can be interpreted as a mechanism for ensuring that coercive state interference remains nonarbitrary in the republican sense, in that it tracks ‘commonly avowable’ public interests.54 It is true that, in some variants at least, the proportionality test will effectively require judges to make substantive, even intuitive, appraisals as to the relative merits of competing claims of public and private rights. According to Eoin Daly, this implicates judges in a more far-reaching normative endeavour, which goes/extends beyond an assessment of arbitrariness in its republican sense.55 However, constitutional rights in the AFSJ appear to be largely contingent on the proportionality test in national courts in order to realise the justice component of ­‘Freedom, Security and Justice’, as courts are often asked to strike the right balance between security and freedom.56 However, the more technical aspects of the proportionality doctrine – particularly the requirement of a rational connection between the means and ends of a restriction on rights – help to show that constitutional rights are not simply moral rights, which are institutionalised, but rather are controls on the predicates of state power.57 If rights are not adequately protected at the international level, are national courts still obliged to apply international norms? Or, conversely, if rights are not protected at the national level, does international law take moral precedence? Regardless of the EU law requirement of the supremacy of EU law, there is a wide-ranging literature in EU constitutional law on pluralism and the cosmopolitan legal movement.58 Much of this debate

51 On trustees, see E Benvinisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295; and Criddle and Fox-Decent, Fiducaries of Humanity (2016). 52 M Thorburn, ‘Proportionality’ in D Dyzenhaus and M Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford, Oxford University Press, 2016) ch 15. 53 On the margin of appreciation, see, for example, Y Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907. 54 Pettit, On the People’s Terms (2013) ch 4 and 5. 55 E Daly, ‘Freedom as Non-domination in the Jurisprudence of Constitutional Rights’ (2015) 15 Canadian Journal of Law and Jurisprudence 289. 56 On the difference between reasonableness and proportionality, see M Klatt, ‘Positive Rights: Who Decides? Judicial Review in Balance’ (2015) 13 International Journal of Constitutional Law 354. 57 See, for example, A Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge, Cambridge University Press, 2012); R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002); M Klatt and M Meister, The Constitutional Structure of Proportionality (Oxford, Oxford ­University Press, 2012); Thorburn, ‘Proportionality’ (2016). 58 See, for example, S Douglas-Scott, ‘Justice and Pluralism in the EU’ (2012) 65 Current Legal Problems 83, 83–118; and K Jaklic, Constitutional Pluralism in the EU (Oxford, Oxford University Press, 2015).

112  Ester Herlin-Karnell has been constructed around the possibility of Member States derogating from EU law and the possibility of national constitutional courts to act as a rebutter of EU law when national constitutional values are endangered (which would be against ‘supremacy’ in classic EU law doctrine). This, again, seems to support the EU’s involvement in the prohibition of trafficking through legislative measures and through judicial review. Courts provide individuals with an opportunity to raise their grievances and challenge what the individuals perceive (justifiably or unjustifiably) as a violation of their rights.59 In this way, courts engage in reasoned deliberation and provide an explanation for the alleged violation. Institutions that operate in this way thereby inevitably become institutions that operate in a judicial manner.60 In practical terms, national courts are closer to the ‘scene’ and so are better at knowing the situation in the concrete case. While EU law is firm on the strong protection for the victims of trafficking, as compared to other areas (ie, ‘other’ forms of illegal migration), in those cases where the EU protection is not robust enough and where national law offers a stronger protection, the latter should prevail. Likewise, if there is a tendency for Member States to rely on administrative measures when countering trafficking in human beings and the increased use of administrative measures such as indefinite detention and sanctions in the EU’s management of migration, the EU’s stance of adopting a criminal law approach should prevail. The constitutional vision is safeguarded through the criminalisation route in this context and offers a higher and more robust human rights standard as opposed to many of the emergency-driven provisions currently adopted in administrative law. For all these reasons, the EU Directive on Trafficking in Human Beings is a sound measure. But by also understanding trafficking as mixed migration, we are reminded that there may be other types of migrant categories that are difficult to distinguish from trafficking and that are also in need of extended human rights protection. VI. CONCLUSION

This chapter has tried to highlight some of the main constitutional questions that are raised by the EU’s involvement in this area. The EU has an obligation to counter trafficking in human beings, both through criminalisation provisions and through its extensive migration policies, and the key policy challenge here is to synchronise these two objectives. The trafficking offence is also one of the core EU crimes: it sends a signal that operates like an apolitical (and also moral) standard-setter to how people ought to be treated in the EU. This raises tricky questions from the global justice perspective, as it begs difficult legitimacy questions as to why outsiders are treated differently from those within the European castle when we speak about ‘justice’. Nonetheless, constructing an AFSJ which ensures a constitutional structure is key to our understanding of the open-textured phenomenon of trafficking. It also illuminates the limits of centralisation and where local practices and the contribution of national courts are sometimes more effective in order to ensure judicial review, and where 59 Harel (n 10) ch 2; Alon Harel, ‘Robust Constitutionalism’, chapter in Ester Herlin-Karnell and Matthias Klatt, Constitutionalism Justified (Oxford University Press, 2019), forthcoming. 60 Daly, ‘Freedom as Non-domination in the Jurisprudence of Constitutional Rights’ (2015) 289.

Understanding Trafficking in Human Beings as Mixed Migration  113 the strict EU judicial hierarchy is sometimes unwise. A fiduciary obligation for courts61 (perhaps we are talking about national constitutional courts) and the right to judicial review are crucial. In the trafficking context, this means that courts may be the ones that are testing the robustness of the EU regime and of what justification is offered to the victim and the due process standards for the suspects. The EU is responding to trafficking by criminalising the offence. The problem goes deeper than this, but, as explained above, the EU is obliged to promote human rights and constitutional values. As noted, the EU is, in other words, obliged to combat the crime of trafficking and ensure that domination and slavery conditions between individuals are struck down where they exist. The constitutional structure of the AFSJ is largely dependent on reasonableness and proportionality in order to ensure that arbitrary domination does not exist. Reciprocity and trust, in turn, is guaranteed by a pluralistic structure of the AFSJ where enforcement depends on the robustness of the system. National courts are sometimes better placed than the CJEU to secure the highest level of human rights and this should be recognised under EU law. If we want to understand the EU and global responses to trafficking in human beings, we need to understand the broader question of mixed migration and all the interlinked questions, as discussed above. Increasing human rights protection by looking at it from a (global) constitutionalism perspective, rather than looking at technical differences and administrative practices in EU security regulation to migration flows, appears a more workable solution for the construction of an AFSJ. At any rate, and in line with political theory concepts such as reasonableness and reciprocity, which are often given loose context-dependent ­definitions,62 a simplification of something that is inherently complex is, perhaps, bound to be a failure. When borders are weakened and regimes ‘go global’, the robustness of the human rights regulation needs to be secured in a way that increases rather than decreases protection, while avoiding accusations of lack of legitimacy and democratic ­accountability.63 Therefore, the criminalisation of the trafficking of human beings is one of the most evident EU crimes and, as such, opens up a plethora of questions as to what justification Europe owes to all those outside its fortress and, once they are inside (and included), how to guarantee them freedom and equality. REFERENCES

Alexy, R, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002). Barak, A, Proportionality: Constitutional Rights and their Limitations (Cambridge, Cambridge University Press, 2012). Benhabib, S, The Right of Others: Aliens, Residents and Citizens (Cambridge, Cambridge University Press, 2004). Benvinisti, E, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295. Buchanan, A, The Heart of Human Rights (Oxford, Oxford University Press, 2012).

61 Criddle

and Fox-Decent (n 9). Chambers, ‘Theories of Political Justification’ (2010) 6 Philosophy Compass 893. 63 See the discussion in Lafont (n 22); and Buchanan (n 22). 62 S

114  Ester Herlin-Karnell Chambers, S, ‘Theories of Political Justification’ (2010) 6 Philosophy Compass 893. Cherem, M, ‘Refugee Rights: Against Expanding the Definition of a “Refugee” and Unilateral Protection Elsewhere’ (2016) 24 Journal of Political Philosophy 183. Chiao, V, ‘Discretion and Domination in Criminal Law Procedure: Reflections on Pettit’ (2016) 15 Politics, Philosophy & Economics 92. Criddle, E and Fox-Decent, E, Fiducaries of Humanity (Oxford, Oxford University Press, 2016). Daly, E, ‘Freedom as Non-domination in the Jurisprudence of Constitutional Rights’ (2015) 15 Canadian Journal of Law and Jurisprudence 289. Douglas-Scott, S, ‘Justice and Pluralism in the EU’ (2012) 65 Current Legal Problems 83. European Commission, A European Agenda on Migration 2015, COM (2015) 240 final (Brussels, European Commission, 2015). European Commission/Home Affairs, The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 (Brussels, European Commission, 2016). Farmer, L, Making the Modern Criminal Law (Oxford, Oxford University Press, 2016). Forst, R, The Right to Justification (New York, Columbia University Press, 2012). Gibney, MJ, ‘Refugees and Justice between States’ (2015) 14 European Journal of Political Theory 448. Harel, A, Why Law Matters (Oxford, Oxford University Press, 2014). Jaklic, K, Constitutional Pluralism in the EU (Oxford, Oxford University Press, 2015). Klatt, M, ‘Positive Rights: Who Decides? Judicial Review in Balance’ (2015) 13 International Journal of Constitutional Law 354. Klatt, M and Meister, M, The Constitutional Structure of Proportionality (Oxford, Oxford University Press, 2012). Krish, N, Beyond Constitutionalism (Oxford, Oxford University Press, 2010). Kumm, M, ‘Constitutionalism and the Moral Point of Constitutional Pluralism’ in P Eleftheriadis and J Dickson (eds), Philosophical Foundations of EU Law (Oxford, Oxford University Press, 2012). Kumm, M, ‘Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities and the Proper Domain of the Consent Requirement in International Law’ (2016) 79 Law and Contemporary Problems 239. Lafont, C, ‘Sovereignty and the International Protection of Human Rights’ (2015) 23 Journal of Political Philosophy 1. Lafont, C, ‘Philosophical Foundations of Judicial Review’ in D Dyzenhaus and M Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford, Oxford University Press, 2016). Lindseth, P, Equilibrium, Democracy, and Delegation: On the ‘Administrative, not Constitutional’ Legitimacy of European Integration, Jean Monnet Working Paper 07/13 (New York, Jean Monnet Center for International and Regional Economic Law & Justice, 2013). Mann, I, Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge, Cambridge University Press, 2016). Margalit, A, The Decent Society (Cambridge, MA, Harvard University Press, 1998). Orgad, L, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (Oxford, Oxford University Press, 2015). Pettit, P, ‘A Republican Law of Peoples’ (2010) 9 European Journal of Political Theory 70.

Understanding Trafficking in Human Beings as Mixed Migration  115 Pettit, P, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge, Cambridge University Press, 2013). Pogge, T, ‘Migration and Poverty’ in V Bader (ed), Citizenship and Exclusion (Basingstoke, Macmillan, 1997) 12–27. Ripstein, A, Force and Freedom (Cambridge, MA, Harvard University Press, 2009). Rostboll, C, ‘Non-domination and Democratic Legitimacy’ (2015) 18 Critical Review of International Social and Political Philosophy 424. Satz, D, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (Oxford, Oxford University Press, 2010). Schubbert, F, ‘Non-domination, Non-alienation and Social Equality: Towards a Republican Understanding of Equality’ (2015) 18 Critical Review of International Social and Political Philosophy 440. Shachar, A, ‘New Borders and Citizenship Constellations’ (draft conference paper presented at WZB Berlin, December 2015, on file with the author). Shamir, H, ‘A Labour Law Paradigm’ (2012) 60 UCLA Law Review 78. Shany, Y, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907. Shin, YJ, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753. Thorburn, M, ‘Proportionality’ in D Dyzenhaus and M Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford, Oxford University Press, 2016). Tomkins, A, Our Republican Constitution (Oxford, Hart Publishing, 2005). Turner, I, ‘The Expressive Dimension of EU Criminal Law’ (2012) 60 American Journal of Comparative Law 1. United Nations/Department of Economic and Social Affairs, International Migration Policies: Government Views and Priorities (New York, United Nations, 2013). United Nations Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons (New York, United Nations, 2012). Zylberman, A, ‘Why Human Rights? Because of You’ (2016) 24 Journal of Political Philosophy 1.

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7 Human Trafficking Human Rights Activism and its Consequences for Criminal Law TATJANA HÖRNLE

I. INTRODUCTION

I

nternational organisations pursue the mission to combat human trafficking with fervour, including demands to make use of the criminal law. For the ­anti-human trafficking campaigns, criminal law is just one instrument in a larger toolkit – ‘smart weaponry’1 to be applied liberally for the good cause. From the viewpoint of ­criminalisation theory, which is the perspective taken in this chapter, this deserves criticism. Human rights activism does not pay sufficient attention to the characteristics of criminal law, that is, its particularly intrusive nature. Criminal laws should be drafted more carefully and parsimoniously than the ‘let’s fight human trafficking with all means’ approach assumes. The blanket assessment of human trafficking as a serious crime does not sit well with the broad spectrum of behaviour that falls under the definitions in international law (section II). The combat against human trafficking is driven by moral intuitions and institutional self-interest (section III). Confronted with such developments, legal scholars have reasons to reiterate that the criminal law should not be considered a flexible tool to serve all kinds of political interests and moral convictions, but as a means to protect individual rights and important collective interests (section IV). Against the sweeping claims that human trafficking is serious wrongdoing, a more differentiated analysis shows that this is true for some constellations, but not for all. Human trafficking as defined in international law does not necessarily clash with the individual rights of persons. I will analyse the legal concept of autonomy and the notion of exploitation to conclude that it is not plausible to categorise all variations of human trafficking as crimes against persons (section V). Collective interests in controlling problematic features of irregular

1 A Gallagher, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010) 5.

118  Tatjana Hörnle migration may play a larger role than is often admitted in human rights talk (section VI). The ­chapter ends with the conclusion that the offence descriptions for human trafficking should be rewritten (section VII). II.  BROAD DEFINITIONS OF HUMAN TRAFFICKING IN INTERNATIONAL LAW

International treaties and European law demand legal actions, with a central role of criminal law. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children from 20002 took the lead. Subsequent European legal instruments solemnly condemn human trafficking. The Preamble to the European Convention on Action against Trafficking in Human Beings (Council of Europe, 2005)3 stipulates ‘that trafficking in human beings constitutes a violation of human rights and an offence to the dignity and the integrity of the human being’. The EU Framework Decision on combating trafficking in human beings (2002) adds more negative emphasis: ‘Trafficking in human beings comprises serious violations of fundamental human rights and human dignity and involves ruthless practices such as the abuse and deception of vulnerable persons’ (emphasis added).4 Even stronger are the words in the EU Directive on preventing and combating trafficking in human beings and protecting its victims (2011): ‘trafficking in human beings is a serious crime, often committed within the framework of organised crime, a gross violation of fundamental rights’.5 States are obliged to make human trafficking a criminal offence and to deter potential offenders with ‘dissuasive’ sanctions.6 With regard to the development of national criminal laws, the United Nations Office on Drugs and Crimes (UNODC) in its recent Global Report on Trafficking speaks of ‘solid legislative progress’.7 Germany has added an offence with the title Menschenhandel to its Criminal Code (StGB) in 2005; however, it was constructed differently from the international norms because it did not address the typical acts of trafficking (recruitment, transportation etc). In 2016,8 the offence description was rephrased, following the definition in international law more closely. At first sight, the association of ‘human trafficking’ and ‘serious crime’ seems convincing. The German term Menschenhandel, which literally means ‘trading human beings’, and talking about ‘modern slavery’ is particularly well suited to suggest that truly obnoxious misconduct is targeted. However, a closer look yields a less coherent picture. The definitions in the UN Protocol and EU law cover a hotchpotch of behaviour. They describe human trafficking as: ‘recruitment, transportation, transfer, harbouring or

2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, in force since 25 December 2003), UNTS 2237, 319. 3 European Convention on Action against Trafficking in Human Beings, Council of Europe Treaty Series – No 197. 4 Council Framework Decision (2002/629/JHA), 19 July 2002, L 203/1; Considerations (3). 5 Directive 2011/36/EU of the European Parliament and of the Council, 5 April 2011, L 101/1, Considerations (1). 6 European Convention (2005), arts 19 and 23; Council Framework Decision (2002), art 3; see also Directive 2011/36/EU (2011), art 4. 7 UNODC, Global Report on Trafficking in Persons (New York, United Nations, 2016) 12. 8 Gesetz v 11.10.2016, BGBl. I 226, see § 232 of the German Criminal Code in its current version.

Human Rights Activism and its Consequences for Criminal Law  119 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’.9 Cases that involve coercion and abduction mostly fall into the category of serious crimes. This is evident if, for instance, agents of a criminal organisation overpower a person for purposes such as slavery or harvesting organs, or if gangs on the routes of illegal migration kidnap persons and demand ransom,10 or if in armed conflicts civilians are forced to provide sexual and other services.11 But the range of conduct that is labelled as human trafficking is much wider. When estimates of many millions of victims are made,12 it is unlikely that these numbers refer to cases of obviously serious wrongdoing. A main problem is to distinguish human trafficking from typical cases of supporting vulnerable migrants who do not have access to legal pathways of migration. In her contribution to this volume, Elina Pirjatanniemi argues that ‘trafficking typically contains an element of force, fraud or coercion’, whereas migrants who get smuggled normally cooperate with the smugglers.13 In a similar vein, the UNODC on its homepage defines human trafficking as ‘acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them’.14 Such narrow definitions of human trafficking do not track the definitions in contemporary international law. Initial efforts to describe human trafficking at the end of the twentieth century, before the UN Protocol, had indeed focused on violence, coercion and deceit.15 Unfortunately, the definitions have expanded since. The element ‘abuse of vulnerability’ leads to a broad overlap with typical scenarios of migration.16 The majority of detected victims of trafficking are international migrants17 and the spatial patterns of trafficking flows and other migration flows are similar.18 It is hard to imagine a migrant without legal immigration status who is not vulnerable, at least at some point. Vulnerability can refer to the initial position of living in dire economic and social environments within the country of origin. Vulnerability is also a typical condition during the dangerous journeys of irregular migration and within the countries of destination.19 Because it is impossible to distinguish between ‘use of vulnerability’ and ‘abuse of vulnerability’,20 assisting migrants will usually fulfil the first two elements of the offence description (recruitment,

9 UN Protocol (2000), art 3(a); European Convention (n 3) art 4(a); Directive 2011/36/EU (n 5) Art 2 (1); the words ‘including the exchange or transfer of control over those persons’ are added in the Directive, otherwise the definitions are identical. 10 UNODC Global Report on Trafficking in Persons (2016) 62. 11 ibid 66. 12 See the chapter by Albrecht in this volume; M Wilson and E O’Brien, ‘Constructing the Ideal Victim in the United States of America’s Annual Trafficking in Persons Report‘ (2016) 65 Crime, Law and Social Change 31, who cite the US Trafficking in Persons Report 2012 with an estimate of 27 million victims worldwide. 13 See the chapter by Pirjatanniemi in this volume. 14 www.unodc.org/unodc/human-trafficking. 15 For the narrower definitions, see Gallagher, The International Law of Human Trafficking (2010) 21–24. 16 See the chapter by Pirjataniemi in this volume. 17 UNODC (n 7) 57. 18 ibid 58. 19 For a list of circumstances that tend to constitute vulnerability, see ibid 80. 20 For the impossibility of this distinction, see the chapter by van Kempen and Lestrade in this volume.

120  Tatjana Hörnle transportation, transfer, harbouring or receipt of persons and abusing vulnerability). Services for vulnerable migrants will often involve exploitation (the third element in the offence description of human trafficking) through professional smugglers who reap profit or networks of other migrants who resort to exploiting others on the same journey in order to make a living for themselves. III.  ANTI-HUMAN TRAFFICKING CAMPAIGNS: POLITICS AND MORAL JUDGEMENTS

Anne Gallagher, who has been involved as a UN official in the meetings leading to the UN Protocol, proudly states in her book The International Law of Human T ­ rafficking that ‘this previously marginal issue’ is ‘now firmly on the international political agenda’.21 Millions of euros are spent annually on anti-human trafficking activities,22 and a huge number of projects employ an even larger number of persons in international organisations and in non-governmental organisations (NGOs).23 If results are measured in terms of the number of prosecutions and convictions, the disparity between efforts made and results achieved is remarkable.24 The number of detected victims is rather small compared to the numbers one could expect for other crimes in worldwide surveys: the UNODC’s Global Report 2016 mentions ‘some 34,000 victims of trafficking in persons detected between 2012 and 2014’25 across the world (the suggestion is that the numbers represent only the ‘tip of the iceberg’). This report lists an average of 29 criminal ­convictions even in those countries that had made human trafficking a criminal offence before 2003 (countries that amended their criminal laws later have even lower rates of convictions).26 To understand the driving forces behind anti-human trafficking campaigns, one has to move beyond assessments of (dubious) effectiveness in terms of prevention, law enforcement and criminal convictions. Maintaining targets as such can be of high symbolic and intrinsic value. More than national states, international organisations have to justify their activities and thus need popular causes as focus points, popular causes which politicians and the public in different countries perceive as valuable activities. Anti-crime campaigns are attractive not only for national politics but also for international organisations, particularly if it can be convincingly argued that combatting a particular crime makes international efforts indispensable. Article 83 of the Treaty on the Functioning of the European Union lists cross-border enterprises: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer

21 Gallagher (n 1) 2. 22 D Davy, ‘Anti-human Trafficking Interventions: How Do We Know if They are Working?’ (2016) 37 American Journal of Evaluation 486, 486–87: US $65 million annually, plus sums by private donors. 23 Davy, ‘Anti-human Trafficking Interventions’ (2016) 489–90. 24 See the chapter by Haverkamp in this volume. 25 UNODC (n 7) 39. 26 ibid 52.

Human Rights Activism and its Consequences for Criminal Law  121 crime and organised crime.27 If one compares human trafficking with other activities on this list, it is understandable why actors within international organisations might find the former a particularly rewarding subject. Drug trafficking has been an important field for international efforts too. However, public enthusiasm for wars on drugs through the means of the criminal law has waned. Generations of citizens in many countries have become used to the recreational use of illegal substances such as marijuana, and awareness is growing that harsh criminal sanctions for drug-related crimes impose high costs on public budgets and communities.28 Choosing human trafficking as a target has the big advantage that international organisations and NGOs can expect stronger public support for their agendas. Anti-human trafficking activities are attractive because persons from different countries and different cultures perceive them to be a good cause. Film stars like to lend their face to these campaigns as so-called goodwill ambassadors.29 For political campaigns, it is of great value to present human beings as subjects for identification. Human faces create sympathy if they carry the association of ‘innocent victims’, more than the figure of a drug addict for anti-drug trafficking efforts. The UN Protocol against trafficking in persons mentions ‘Especially Women and Children’ in its title. The initial proposals for this Protocol, submitted by the US and Argentina, even more straightforwardly targeted this group.30 The reliance on the concept of ideal victims31 is unmistakable. Pushing women and children to the fore enables the bridging of cultural differences within the UN. The focus on ‘women and children’ appeals to protective impulses that can be found both in traditional, family-focused, patriarchal societies (a moral obligation to protect women and children fits well with a patriarchal stance) and in societies that hold individuals’ human rights in high regard. Within ‘Western’ societies, strong responses to concepts such as vulnerability can be expected. Contemporary representations of human trafficking in public policy documents and awareness campaigns reinforce pictures of ideal victims.32 Public perceptions have been shaped by drastic depictions of horrible things done to ideal victims in entertainment media. For instance, a TV mini-series called Human Trafficking is described as follows: ‘Hundreds of thousands of young women have vanished from their everyday lives – forced by violence into a hellish existence of brutality and prostitution. They’re a profitable commodity in the multi-billion-dollar industry of modern slavery.’ The script espouses the nightmares of many men and women: on a family holiday to a foreign c­ountry,

27 Treaty on the Functioning of the European Union – Part Three: Union Policies and Internal Actions, Title V: Area of Freedom, Security and Justice, Chapter: Judicial Cooperation in Criminal Matters – Article 83 (ex Article 31 TEU), OJ L115, 80. 28 For a forceful critique, see M Alexander, The New Jim Crow (New York, New Press, 2010). 29 See the UNODC press release from 10 February 2009 announcing that ‘Academy Award-winning actress Mira Sorvino will be appointed a United Nations Office on Drugs and Crime Goodwill Ambassador to Combat Human Trafficking’; www.ungift.org/docs/ungift/mirasorvino.pdf. 30 J Doezema, Sex Slaves and Discourse Masters: The Construction of Trafficking (London, Zed Books, 2010) 119. 31 See the chapter by Haverkamp in this volume. 32 Wilson and O’Brien, ‘Constructing the Ideal Victim’ (2016); E O’Brien, ‘Human Trafficking Heroes and Villains: Representing the Problem in Anti-trafficking Awareness Campaigns’ (2016) 25 Social and Legal Studies 205, 206–07.

122  Tatjana Hörnle the juvenile daughter gets abducted and disappears; a single woman gets seduced by a ­handsome man on a date who suddenly turns out to be a sinister, plotting criminal.33 Such stories do not represent the wide range of conduct that international documents define as ‘human trafficking’, probably because viewers of films and TV series are less likely to identify themselves with young males working in sweatshops or juveniles who are trained to become pickpockets or beggars. Answers to the question as to why human trafficking is considered an important target of international efforts must point to moral judgements. The contemporary movement against human trafficking would not have gained momentum if it did not accord with moral judgements of different types. First, there are still objections against prostitution. The modern campaigns against human trafficking are rooted in the nineteenth-century crusades against the ‘defilement of innocent girls’.34 The abolitionist movement against prostitution within NGOs and the US government promoted efforts in international law to fight human trafficking.35 A second source for demands to fight human trafficking does not focus specifically on commercialised sex, but objects to exploitation in general. In our contemporary moral worlds, it is agreed that the abuse of vulnerability and exploitation are moral wrongs. Within academic moral philosophy, it is debated what exactly constitutes exploitation, but one can assume that in general, and specifically for human rights activists, the claim to fight exploitation is regarded as a worthy moral goal. To describe the political and moral forces that lead to and support campaigns against human trafficking is one thing. It is a different question entirely as to whether moral judgements suffice to justify criminal punishment. In the following sections, criminal laws against human trafficking are assessed from the perspective of criminalisation theory. IV.  CRIMINALISATION THEORY

A critical assessment of criminal prohibitions, whatever their content or source, requires some preliminary considerations regarding the proper scope of the criminal law. It makes a difference whether conduct is regulated with the means of the criminal law or with other legal regulations such as civil or administrative laws. Law makers ought to deliberate how to assign legal instruments to political goals and particularly when to use the criminal law. Terms such as ultima ratio or last resort36 capture the idea that the criminal law should be used sparingly because it interferes in a highly intrusive way with the liberties of convicted persons. Neither international law nor national constitutions provide much

33 See the description on the Internet Movie Database (IMDb) (www.imdb.com/title/tt0461872/plotsummary? ref_=tt_ov_pl) and also the film Taken. The widespread fascination with atrocious crimes is utilised by international organisations: the homepage of UN.GIFT.HUB (United Nations Global Initiative to Fight Human Trafficking) uses the yellow plastic tape that has become a visual symbol of crime scenes as an eye catcher, with the inscription on that tape ‘HUMAN TRAFFICKING: A CRIME THAT SHAMES US ALL’; see the picture at: www. ungift.org. 34 For the older narratives of ‘white slavery’ and ‘purity’ campaigns promoting the abolition of prostitution, see Doezema, Sex Slaves and Discourse Masters (2010) 77–105; and the chapter by Farmer in this volume. 35 Doezema (n 30) 132–38. 36 See N Jareborg, ‘Criminalization as Last Resort (Ultima Ratio)’ (2004) 2 Ohio State Journal of Criminal Law 521; D Husak, ‘The Criminal Law as Last Resort’ (2004) 24 Oxford Journal of Legal Studies 207.

Human Rights Activism and its Consequences for Criminal Law  123 guidance on the question of what purposes merit the use of the criminal law. It is left to criminal law theorists to reason on the limits for criminalisation37 (whether ­legislators follow such arguments is another matter). A.  Protection of (European) Values? The most far-reaching proposal for criminalisation points to the protection of values. It is far-reaching because it makes it possible to penalise what Joel Feinberg in his ­seminal work The Moral Limits of the Criminal Law has called ‘Harmless Wrong’.38 For ­centuries, the protection of religious and moral values has been the traditional goal of criminal law.39 In an interesting turn, Esther Herlin-Karnell adopts a modern interpretation of the old theme. She argues in favour of criminalising conduct that is incompatible with ‘European values’.40 Her proposal could take the first obstacle that poses difficulties for more traditional versions of value protection. The question ‘which values – who defines what counts as a value and what not?’ might be answered by pointing to EU legal documents. Identifying European values could be easier than coming up with a conclusive list of general moral values with no agreed-upon foundation. However, several objections remain. If the value-protection approach simply points to another, high-ranking EU norm such as Article 5(3) of the EU Charter of Fundamental Rights (‘trafficking in human beings is prohibited’), this does not tell us what is wrong with human trafficking in its substance. Proceeding from values to the content of criminal norms would require the identification of European values that are more abstract than the prohibition deduced from it. General values emerging from EU documents could be described as, for instance, ‘respect for human rights’ or ‘protecting the vulnerable’. It would, however, be hard to make a convincing case that deductions from values straightforwardly lead to a description of objectionable behaviour, such as the definitions of human trafficking. It might not be difficult to agree on a core of European values, but it will remain highly controversial as to what follows from that. The even more fundamental objection is that pointing to values misconstrues the purposes that the criminal law should serve in modern states. If the conduct in question violates or endangers the rights of human beings or important collective interests, this is a prima facie reason for criminalisation (see section IV.C below). References to European values are superfluous if the crime is a crime against persons or if it endangers important collective institutions or resources. If, however, ‘crime against persons’ and ‘endangerment of important collective interests’ arguments fail to support a prohibition, the question arises as to why citizens should be punished solely for the sake of abstract European values. A broad approach to the purposes of the criminal law clashes with the proposition that this sharp instrument should be used sparingly. 37 See generally T Hörnle, ’Theories of Criminalization’ in M Dubber and T Hörnle (eds), The Oxford ­Handbook of Criminal Law (Oxford, Oxford University Press, 2014) 679. 38 J Feinberg, The Moral Limits of the Criminal Law, Vol 1: Harm to Others (Oxford, Oxford University Press, 1987). 39 For a defence of this position, see P Devlin, The Enforcement of Morals (Oxford, Oxford University Press, 1965). 40 See the chapter by Herlin-Karnell in this volume.

124  Tatjana Hörnle From a functionalist perspective, one could also question the efficiency of strategies to protect European values. In the field of punishment theory, concepts called ‘positive general prevention’ argue that re-affirming norms is the most important purpose of criminal law and its enforcement.41 Punishment can reinforce pre-legal, accepted norms of conduct – for instance, ‘do not assault other people’ or ‘do not trespass on another person’s property’. The sociopsychological nexus between sanctions and approval for norms favours a bottom-up rather than a top-down mechanism.42 However, protection of European values comes closer to a top-down approach that conceptualises criminal laws as instruments of education. The effects of educatory top-down efforts might be mixed, particularly in a climate of increasing scepticism about European ambitions. B.  Protection of Legal Goods (Rechtsgüter) Scholars of criminal law in many European countries argue that criminal law should protect legal goods (Rechtsgüterschutz).43 References to Rechtsgüter undoubtedly serve a heuristic function for legal doctrine as they make it possible to summarise purposes and to categorise offences into groups. Within the context of criminalisation theory, however, the question is whether introducing the notion of Rechtsgut is a valuable tool for critical analysis. This claim increasingly meets with scepticism.44 The critical view has two strands. The first argues that democratic procedures make laws legitimate and that parliament is not bound by pre-legal concepts.45 This is true, but the conclusions are not devastating for legal theorists: we should avoid strong expressions such as ‘illegitimate’ or ‘unconstitutional’, but this does not rule out moderately phrased negative judgements about a law or legislative proposal. The second argument points out that the concept of Rechtsgut is fuzzy or even empty. If the term is presented to legal theorists who are unfamiliar with it, it is not very likely that they will rejoice because the philosopher’s stone has appeared on the table. Obviously, the crucial step is to give the term Rechtsgut a meaningful definition. The German scholar Claus Roxin proposes that the criminal law should only be used to protect ‘conditions or purposes which are necessary for the free development of individuals, the realisation of their fundamental rights, or the

41 For this concept, see G Jakobs, ‘Imputation in Criminal Law and the Conditions for Norm Validity’ (2004) 7 Buffalo Criminal Law Review 491; M Dubber, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 53 American Journal of Comparative Law 679, 699. 42 For this point, see P Robinson, Distributive Principles of Criminal Law (Oxford, Oxford University Press, 2008) 175–221; P Robinson, Intuitions of Justice and the Utility of Desert (Oxford, Oxford University Press, 2013). 43 Dubber, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 682–96; K Nuotio, ‘Theories of Criminalization and the Limits of Criminal Law: A Legal Cultural Approach’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford, Oxford University Press, 2010) 244–52; and the chapter by Lernestedt in this volume. 44 See K Gärditz, ‘Strafbegründung und Demokratieprinzip’ (2010) 49 Der Staat 331; C-F Stuckenberg, ‘Grundrechtsdogmatik statt Rechtsgutslehre’ (2011) 158 Goltdammer’s Archiv für Strafrecht 653; A Engländer, ‘Revitalisierung der materiellen Rechtsgutslehre durch das Verfassungsrecht’ (2015) 127 Zeitschrift für die ­gesamte Strafrechtswissenschaft 616. 45 See the decision of the German Federal Constitutional Court regarding the criminal prohibition of incest between siblings: BVerfGE 120, 224, 241–42.

Human Rights Activism and its Consequences for Criminal Law  125 f­ unctioning of the state based on these goals’.46 This definition of what the criminal law should achieve has its merits. However, it would involve some mumbo-jumbo to pretend that it can be deduced from some pre-existing meaning of Rechtsgut. In my view, it is an unnecessary detour to spend time on discussing the advantages and disadvantages of the Rechtsgut doctrine. We should skip this term and move on to thinking about individual rights and collective interests. The crucial point is to show that a proposed or existing criminal prohibition can be justified by the need to protect either individual rights or collective interests. C.  Individual Rights and Collective Interests Criminal laws should protect in a systematic and consistent way the most fundamental rights that persons have against each other, such as rights to bodily integrity, sexual autonomy or property.47 If one of these rights has been violated, the state is under a duty to respond to the incident, a duty that is owed to the victim. Victims have to desist from revenge and other reactions that would violate offenders’ rights. The historical processes that have created the state’s monopoly on the use of violence are not just contingent developments, but are of crucial importance for the peaceful co-existence of human beings. In return, the state has to take rights violations seriously and respond to them in the role of a fiduciary for the actual victim.48 Which human interests deserve to be protected with a legal right to non-interference and which rights are important enough to be protected by criminal law rather than, for example, tort law can be a matter of debate. But arguments that support a right to non-intervention at least open the door to criminalisation (without being a sufficient condition, as there might be other reasons to refrain from criminalising conduct).49 Protecting the rights of individuals against interferences is a core function of criminal law, but is not its exclusive function. It can also be legitimate to rely on criminal law to protect important collective interests. The more complex and spatially extended social and economic relations become, the more individuals depend on collective institutions. Norms against counterfeiting of money or corruption, for example, are indispensable in modern societies. With regard to discussions about important collective interests, some cautionary remarks are necessary. This line of argument might be utilised to pursue legal moralism or paternalism, for instance, by arguing that there is a collective interest in

46 C Roxin, Strafrecht Allgemeiner Teil, Bd I, 4th edn (Munich, CH Beck Verlag, 2006) 16. 47 For the role of rights in criminalisation theory, see T Hörnle, ‘“Rights of Others” in Criminalisation Theory’ in AP Simester, A du Bois-Pedain and U Neumann (eds), Liberal Criminal Law Theory: Essays for Andreas von Hirsch (Oxford, Hart Publishing, 2014) 169. 48 See T Hörnle, ‘The Role of Victims in Punishment Theory’ in A Bottoms and A du Bois-Pedain (eds), Penal Censure: Engagements within and beyond Desert Theory (Oxford, Hart Publishing, 2019, forthcoming). The expression ‘fiduciary’ does not imply close supervision of law enforcement activities by victims. The state’s role is more complex. Besides re-affirming the victim’s rights, genuine public interests (in equality and fairness, for instance) and the limitations of resources must be taken into account. 49 For countervailing reasons and mediating principles, see D Husak, Overcriminalization (Oxford, Oxford University Press, 2007) ch 3; A von Hirsch and K Seelmann (eds), Mediating Principles. Begrenzungsprinzipien bei der Strafbegründung (Baden-Baden, Nomos Verlag, 2006).

126  Tatjana Hörnle the protection of good morals50 or that the ill-advised choices of individuals affect their social environments too. However, my understanding of collective interests is narrower. It refers, in a similar fashion to Claus Roxin’s definition of Rechtsgut,51 to infrastructures in the form of social institutions and basic security that all citizens need, whatever their individual vision of a good life might be. Applying this framework to human trafficking, the relevant questions are: do the acts violate rights of individual victims; in other words, is human trafficking a crime against persons? Or do plausible arguments point to important collective interests? V.  HUMAN TRAFFICKING: A CRIME AGAINST PERSONS?

A.  Violations of Autonomy and Liberty Rights For some of the elements in the definitions of human trafficking,52 a collision with the rights of individuals can be identified. It would not make sense to postulate a general right not to be recruited, transported etc, but in combination with some of the means mentioned (threat or use of force or other forms of coercion and abduction), one could plausibly argue that the act violates a right. If a person is abducted or coerced, this violates either liberty or autonomy rights.53 In the case of deception,54 autonomy can be compromised too. Choices made under such conditions are often not autonomous choices, and the person who tricks another person into doing something interferes with his or her autonomy rights. However, the question arises as to whether every instance of being transported, transferred etc that involves some dishonesty really deserves to be called a violation of autonomy rights or a violation of autonomy rights serious enough to justify prohibitions in the criminal law. Perfectionist demands should be avoided when the notion of autonomy figures in legal contexts. Only in an ideal world are decisions made under perfect conditions, that is, with full knowledge on the side of the deciding person and absolute honesty and fairness on the other side. Some flaws have to be accepted and the question can only be if the choice to be transported, recruited etc was autonomous enough. Deceptions with severe consequences might be regarded as violations of autonomy rights, for instance, if a car ride to the supermarket was promised and the napping passenger finds himself or herself abroad hours later. However, if the persons concerned understand the basic features of what they have to expect, it is not obvious that every kind of deception about concomitant circumstances – for instance, the amount of pay or details of the working conditions – undermines autonomy. In the area of sexual offences, the expressions ‘fraud in the factum’ and ‘fraud in the ­inducement’

50 See the arguments made in Devlin, The Enforcement of Morals (1965). 51 See the text accompanying n 46. 52 See the text accompanying n 9. 53 When putting the international standards into criminal laws, some attention needs to be paid to details. For instance, if the mode of coercion is not force but a threat, the law should require a certain weight of this threat; see § 232 II Nr 1 of the German Criminal Code (serious threat). 54 The definitions in the international documents (see the text accompanying n 9) also list fraud, but this does not add a new dimension if deception is included.

Human Rights Activism and its Consequences for Criminal Law  127 are used to distinguish between more or less severe cases of deception.55 When formulating offence descriptions in the area of human trafficking, legislators should apply similar distinctions. With regard to sex work, trafficked persons might be aware of which kind of work they expect to be doing, while having imprecise ideas about the conditions or being unaware of ‘fees’ taken away from their earnings.56 In such cases, it is not adequate to label their decision to move places non-autonomous. B.  The Right Not to Be Exploited The most difficult scenarios are those that neither involve coercion nor a relevant degree of deception, but could be described as abuse of a position of vulnerability. The question again is which rights are at stake. Transporting, harbouring etc a vulnerable person does not per se clash with the interests of this person: transporting the victim of a traffic accident to the next hospital obviously gives no reason to think about criminalisation. ‘Abuse’ and ‘exploitation’ are indispensable in the description of objectionable conduct. The decisive questions are: should the criminal law acknowledge and protect a right not to be exploited? And what does exploitation mean? The UN Protocol and European law do not define exploitation, but give some examples: ‘Exploitation shall include, 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.’57 This list is of limited use for understanding the concept of exploitation. It leaves open which cases beyond the ‘minimum’ are to be covered. The drafters took the safe road of listing some unproblematic examples while avoiding approaching borderline cases. For most of the examples, criminalisation can be justified in a straightforward way. If victims are coerced and/or restricted in their movements, such as in the case of forced labour, slavery or servitude, or if removing organs severely physically harms them, the violation of victims’ rights can be described without reference to exploitation. The one example in the list that would require some consideration regarding exploitation is prostitution, but here we find a circular definition: exploitation is defined as exploitation. A more promising way to clarify the concept of exploitation leads to analytical moral philosophy. Authors who dissect the concept agree on the starting point: The exploiter (A) must gain benefits through goods or services delivered by the exploited (B).58 However, it is controversial which additional conditions are necessary. It is disputed whether a finding of exploitation requires either substantive unfairness or procedural unfairness or both.

55 D Archard, Sexual Consent (Boulder, Westview Press, 1998) 46–50. 56 For the different groups of Filipinas coming to Korea, see YJ Shin, ‘Human Trafficking and Labour ­Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753, 772–76. 57 UN Protocol (n 2) art 3(a); Council of Europe Convention (n 3) art 4(a); Directive 2011/36/EU (n 5) art 2(3). 58 A Wertheimer, Exploitation (Princeton, Princeton University Press, 1996) 208; M Zwolinski and A Wertheimer, ‘Exploitation’ in E Zalta (ed), The Stanford Encyclopedia of Philosophy (Fall 2016 edn), https:// plato.stanford.edu/archives/fall2016/entries/exploitation, 2.1; R Mayer, ‘What’s Wrong with Exploitation?’ (2007) 24 Journal of Applied Philosophy 137, 139.

128  Tatjana Hörnle Some moral philosophers define exploitation primarily as ‘substantive unfairness’.59 This approach compares goods, services and other benefits that are the outcomes of an exchange between A and B. If severe asymmetry in the outcome is the defining element, two scenarios constitute exploitation: (1) A receives benefits, B receives none or is even harmed as a result of their transactional relations; (2) A receives benefits and do does B, but B’s advantage is disproportionately small in comparison to what A gains. This moral assessment covers typical scenarios of ill-paid labour and sex work, for instance, if the owners of sweatshops or brothels take advantage of workers’ weak bargaining positions and obtain a disproportionate share of the generated revenue. If substantive unfairness were the necessary and also sufficient feature of exploitation, it would not matter whether the other person consented to the exchange. This conclusion is, however, too simple. Comparing outcomes is one step in the evaluation, but other elements should play a role as well. One approach emphasises A’s attitude towards B and defines exploitation as the failure to recognise the value inherent in a person.60 The more promising alternative does not focus on the exploiter’s attitudes, but on the interactions between A and B. This widens the outlook from substantive unfairness to procedural unfairness. Under certain conditions, we would not label an exchange exploitative even if the tangible benefits all go to A. If B freely and voluntarily decides to engage in charity work, his or her activities would not carry the stigma of exploitation.61 My hunch is that an adequate moral description of exploitation should involve elements of both substantive unfairness and procedural unfairness in shifting ratios: the more pronounced the gap in the respective benefits, the lower the threshold for assuming procedural unfairness that renders the exchange exploitative, and vice versa. Alan Wertheimer in his sophisticated analysis of exploitation adds yet another layer. While he argues that B’s consent does not preclude describing the exchange as exploitation, the issue of consent nevertheless becomes relevant with regard to the appropriate moral reactions. His argument is that for some cases, despite their correct description as exploitation, B’s valid consent changes evaluations. Consent gives the transaction protection against interferences by third parties – in this limited sense, A has a ‘right to do wrong’.62 Wertheimer’s distinction between descriptions on the one hand and the legitimacy of interferences on the other hand is particularly appropriate once we move from moral blame and social sanctions to prohibitions in the criminal law.63 For a rights-based approach to criminalisation, valid consent must be of even greater importance than for moral judgements. If the focus is on rights against interferences by others, it is obvious that these rights can be waived. Consent means to waive one’s right.64 In this case, there is no victim in a legal sense. This leaves us with the following understanding of a right

59 Zwolinski and Wertheimer, ‘Exploitation’ (2016) 2.3.2; Mayer, ‘What’s Wrong with Exploitation?’ (2007) 139–46; H Steiner, ‘Liberalism, Neutrality and Exploitation’ (2013) 12 Politics, Philosophy & Economy 335. 60 R Sample, Exploitation: What it is and Why it’s Wrong (Lanham, MD, Rowman & Littlefield, 2003) ch 3. 61 See for this point the chapter by van Kempen and Lestrade in this volume. 62 Wertheimer, Exploitation (1996), 271; J Waldron, ‘A Right to Do Wrong’ (1981) 92 Ethics 21. 63 See on legal prohibitions Wertheimer (n 58) 296–300. Other moral philosophers concede this point too; see Mayer (n 58) 148, who argues that it might be more humane to manage exploitation rather than trying to ­abolish it. 64 See the chapter by Bergelson in this volume.

Human Rights Activism and its Consequences for Criminal Law  129 not to be exploited: two elements are necessary, which are an imbalance between the ­respective benefits and a lack of competent choice by B. The activities that definitions of human trafficking describe as recruitment, transport etc are mainly not single acts, but prolonged activities that require some cooperation by the trafficked person. The crucial question is whether cooperation, approval, agreement etc are based on competent choice. Three types of scenarios can be distinguished. In the first group of cases, B has cooperated, although with an evident deficit in the abilities necessary to make competent decisions. Imagine a 10-year-old child who testifies to having perceived the trip to another country and the work to do there as an improvement. Despite the absence of individual unhappiness, minor age (and also mental disabilities) renders agreements irrelevant. If the victim was not harmed and if his or her personal experience was positive, this is reason to mitigate sentences, but it does not preclude punishing the exploiter for human trafficking. It makes sense to categorise these cases not only as a violation of autonomy rights but also as exploitation: this description gives a fuller picture of wrongdoing. In the second group, B is an adult who agreed and cooperated, but under socioeconomic and/or personal circumstances that weakened his or her bargaining power and assertiveness in interactions with others. Should legal assessments deem his or her factual approval irrelevant? Moral and legal judgments can be split. From a moral point of view, one can conclude that A exploited B in a morally blameworthy way if socioeconomic or personal weakness diminished B’s bargaining position. Legal judgments should, however, be more restrictive.65 It is one of the founding stones of modern constitutional states to ascribe autonomy and responsibility in a broad and egalitarian way to all citizens once they are of age. From a psychological view, this means a certain amount of fiction. Reaching full legal age does, of course, not involve a sudden increase in maturity compared to the evening before. And among adults of any age, competence in making decisions varies widely. However, the legal façade of autonomy is meant to obscure close-up views on reality. In this volume, Claes Lernestedt argues that ‘the criminal law must metaphorically speaking have the opportunity to get ‘close’ enough to this concrete person (alleged “victim”) in this concrete situation’.66 My position is that a formal, non-psychological approach is not shallow or callous, but appropriate. It does not signify cold indifference and lack of empathy, as would be the case in interpersonal relationships. The state should treat citizens as citizens rather than as the fragile, not-so-competent, vulnerable individual human beings that many of us are. Above the threshold of age and above the threshold of measurable, pathological mental disabilities, the law should resort to ascriptions rather than to detailed descriptions of the social situations and competences of individuals. Within the relationship between the state and citizens, ascriptions of autonomy are benign constructions that leave persons with sufficient latitude to follow their preferences. The same view should be applied to migrants. Emphasising empathy can backfire and turn into arrogance if hard living conditions are cited in order to label adults as vulnerable and thus incompetent beings.67



65 Wertheimer

(n 58) 296–99. the chapter by Lernestedt in this volume. 67 See Shin, ‘Human Trafficking and Labour Migration’ (2015) 789. 66 See

130  Tatjana Hörnle If persons are of age and do not suffer from severe mental disabilities, the fact that they consistently agreed to be transported etc is sufficient for valid consent. International documents on human trafficking contain an exclusionary rule that declares the consent of a victim of trafficking to the exploitation to be irrelevant.68 This clause makes sense if consent is interpreted as factual declaration of approval. Under certain conditions, human beings – for instance, the child in my example – can be exploited even if they declare agreement. If, however, consent is interpreted in a narrower sense as legally valid consent, such consent necessarily excludes exploitation. The third group comprises ‘mixed circumstances’. The trafficked persons agree in principle and cooperate most of the time; however, they also have occasional misgivings or are resenting a particular incident of mistreatment, and then are coerced to continue cooperating. Should we assume the violation of a right not to be exploited under such conditions? For such scenarios, it is crucial whether the change of mind and expression of disapproval relate to the whole enterprise or refer only to details. If the overall plan concerning the kind of ill-paid work at the destination remains consensual, but there is, for instance, an argument concerning the quality of the food during transport, this bounded conflict does not render approval for the greater plan meaningless, even if the smaller conflict is ended by coercion. However, the right not to be exploited is violated if the trafficked person reconsiders his or her willingness to engage in ill-paid work and is then forced with violence or threats of violence to stick to the initial agreement. The most difficult cases are those that involve constraint to pre-empt the trafficked person from venturing into independence, such as confiscating passports upon arrival. Again, the decisive question should be whether such measures make the choice to begin or continue a substantively unfair interaction a non-autonomous choice. In my view, the crucial question ought to be if exploiters have acted in a way that is comparable to serious threats or coercive force. If systematic barriers are erected, such as taking away passports and mobile phones, this is a case of coercion that makes continued cooperation non-­autonomous. C. Summary The question as to whether human trafficking offences are crimes against persons cannot be answered in a uniform way. In some constellations, human trafficking does violate the rights of individuals. This is evidently the case if a victim is transferred, harboured etc who has never given any signs of approval, but is abducted or in some other way overpowered by force. If offenders violate liberty rights or the right to physical integrity, the description as ‘human trafficking’ does not add much to the picture.69 Directives in international law to criminalise coercion, violence, restriction of movement, bodily assault etc are likely to push open doors. Other variations of human trafficking are crimes against persons because they violate a right not to be exploited. Exploitation can occur even if the victim agreed or



68 UN Protocol (n 2) art 3(b); Council of 69 See

Europe Convention (n 3) art 4(b); Directive 2011/36/EU (n 5) art 2(4). the chapter by Matravers in this volume.

Human Rights Activism and its Consequences for Criminal Law  131 cooperated, but only if the factual agreement does not count as valid consent, that is, if the victim has been coerced or deceived about essential conditions or was not capable to make competent decisions (due to minority or mental disabilities), or if a person withdraws consent during the acts of recruitment, transfer, harbouring etc. In other cases, references to the rights of individuals and crimes against persons are not convincing. If the trafficked person has made a competent enough decision and has cooperated with the trafficker in a consistent way, his or her socioeconomic or personal vulnerability does not suffice to argue that his or her rights have been violated. In legal contexts, consent should be treated as a formalised concept based on a normative notion of free, equal and responsible persons. Criminalising behaviour that is covered by valid consent cannot be justified by the individual rights of this person. Under such conditions, there is no individual victim to the crime. This leaves us with another possible explanation and perhaps justification of prohibitions against human trafficking. If these prohibitions serve collective interests, it is irrelevant whether the persons involved gave valid consent. VI.  HUMAN TRAFFICKING AND COLLECTIVE INTERESTS

Collective interests of citizens and permanent residents in the territories of destination might give prima facie reasons to resort to prohibitions in criminal laws. The phenomenon called human trafficking in international treaties can also be described as irregular migration that creates or increases social problems. One worry is that labour law, particularly minimum wage regulations, will be undermined if groups of irregular migrants enter the country, instructed and willing to work for minimal pay. This weakens the prospects of other workers from the low-pay segment of the labour market. A countervailing thesis would be that displacement effects are small and that willingness to work for very low pay might also have positive effects for economic development. Deepening these points would require sophisticated economic analysis, which is beyond the scope of the discussion here. And why labour protection should be best achieved by the means of the criminal law rather than better enforcement of labour laws would need further inquiry.70 Even if one takes into account that it is a demanding (and intrusive) task to monitor employers, including small businesses and households,71 it remains unclear whether the criminal law would be better suited to ensure compliance with labour laws. Another subgroup of trafficked persons is a source for greater concern, that is, migrants who are not entering the labour market. Low levels of education and professional skills, weak economic status or personal problems make persons vulnerable. At the same time, these conditions can be expected to complicate social adjustment at the place of destination. The organisers of this segment of migration will see that new arrivals cover their costs of living and generate some profit, but in the long run, this might not be a successful strategy. The likelihood of dependence on social security or illegal sources of income collides with collective interests of citizens in the countries of destination. Discussing 70 See the chapter by van Kempen and Lestrade in this volume. 71 A Efrat, ‘Global Efforts against Human Trafficking: The Misguided Conflation of Sex, Labour, and Organ Trafficking’ (2016) 17 International Studies Perspectives 34, 48.

132  Tatjana Hörnle this means touching upon a highly sensitive topic that is open to moral misgivings and heated political debates. We are used to thinking in categories of moral wrongdoing, and migrants who move from destitute living conditions in their countries of origin to bad living conditions at the new place are not committing individual wrongs. Instead, with a certain degree of hypocrisy, the figure of the trafficker has become a general moral ­scapegoat, beyond the evident cases of coercion or mistreatment.72 An interesting question is whether a hard layer of migration control could be found under the soft layer of the campaigns against human trafficking. The international efforts to control migration flows address smuggling migrants73 and human trafficking separately. The acts falling under ‘smuggling of migrants’ are defined in a narrower and more technical way (procurement of illegal entry, production of false documents etc).74 It would not be far-fetched to see some acts of human trafficking as preparatory and subsidiary offences to the smuggling-of-migrants offences (for instance, recruitment and harbouring). However, there are also evident differences between the two approaches in international law. If the purpose is to prevent irregular migration, it would be superfluous to demand a purpose to exploit the migrant, and the list of means underscores the point that human trafficking offences were primarily conceptualised as offences against persons. Obviously, the international definitions were drafted in an effort to distinguish the ‘warm’ commitment to human rights from the ‘cold’ efforts to regulate migration. In the words of the former UN official Anne Gallagher: ‘Making human rights the centre of thinking about trafficking stops us from being side-tracked by the slick arguments of those who would prefer it be approached as a straightforward issue of migration, of public order, or of organized crime.’75 However, if one focuses on national politics rather than on the idealistic visions of human rights advocates in international organisations, it is less evident whether efforts against trafficking can always be clearly separated from the purpose to control irregular migration.76 VII. CONCLUSIONS

The case of campaigns against human trafficking is a good illustration of what can go awry if directives in international and European law demand the unification of substantive criminal law. The international campaigns follow the logic of politics. From a political point of view, it is understandable why international organisations focus on moral concepts such as exploitation, and why they conceptualise human trafficking as crimes against persons and invoke vulnerability and pictures of ‘ideal victims’. The ‘crimes against persons’ approach sets a counterpoint to the more mundane language

72 The case of the Stockholm city court that Lernestedt cites in his chapter in this volume seems a good ­example. It would be hypocritical to frame the problem of begging as human trafficking carried out by Romanian parents in relation to their 15-year-old daughter. 73 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 2000. 74 See UN Convention (n 2) art 6. 75 Gallagher (n 1) 3. 76 Wilson and O’Brien (n 12) 41–42; SA Fitzgerald, ‘Vulnerable Bodies, Vulnerable Borders: Extraterritoriality and Human Trafficking’ (2012) 20 Feminist Legal Studies 227.

Human Rights Activism and its Consequences for Criminal Law  133 in documents referring to the smuggling of migrants. It appeals both to moral intuitions and to the widespread commitment to the protection of human rights, and it corresponds with the self-image of actors in international organisations as guardians of the poor and marginalised.77 However, the definitions developed in the name of human rights have led to problematic results from the perspective of criminal law theory. Offence descriptions ought to be drafted with regard to parsimony in a way that is tailored narrowly to the protective goals, ie, the protection of the rights of individuals and important collective interests. Criminal laws against human trafficking based on the broad international definitions do not meet these standards. Among the miscellany of behaviour that falls under these offence descriptions, some acts do indeed violate the rights of persons, but others do not. One of the faults of the international definitions is that they exaggerate the relevance of vulnerability and negate the importance of consent. Socioeconomic deprivation or personal troubles below the threshold of mental disabilities are not sufficient to deem factual approval legally invalid consent. If trafficked persons give valid consent, the ‘crimes against persons’ label is not fitting. From a moral perspective, an actor who intends to gain an uneven share of benefits from a vulnerable human being might deserve blame. Legal judgments, however, should apply more restrictive standards. One of the unfortunate features of the anti-human trafficking campaigns is that they argue with the protection of the rights of individuals, but give considerable space to legal moralism. What would be the conclusion beyond fussing about the state of affairs? The answer could be changes in international law and in national criminal laws. Admittedly, the likelihood that such a proposal is taken seriously in the political arena is virtually zero after the UNODC could proudly announce ‘solid legislative progress’ in the member states of the UN. The adaption of a bad design in national criminal laws is hardly reversible too. Nevertheless, I will add a few thoughts on how the situation could be improved by redrafting offence descriptions. Under the heading ‘crimes against persons’, laws that protect liberty rights (such as prohibitions against abduction and other uses of force against a person) are easy to justify, but it can be expected that they existed in most criminal codes. In the interest of well-organised criminal laws, it is preferable to keep prohibitions of abduction, overpowering violence and assaults on bodily integrity separate from offence descriptions that target exploitation. With regard to the latter, the notion of exploitation would need to be defined, and in a narrow way. The criminal law should only interfere with exchanges that lead to an unequal distribution of benefits if it can be argued that the disadvantaged person’s cooperation lacked the basic requirements for autonomous choice. Offence descriptions should avoid the term ‘vulnerability’, but should list those conditions that destroy or pre-empt autonomy: coercion; deception about essential features; minority; and mental disabilities. Furthermore, the central part of such an offence description should focus on the actual exploitation. The international descriptions of human ­ trafficking focus on

77 See Gallagher (n 1) 3. The role of human rights as the focus point of a contemporary civil religion occasionally shows up in the use of language; see, for instance, Gallagher’s (non-ironic) referral to the ‘sacred chambers of the international human rights system’ (at 4) and also the references to ‘faith’ and ‘spirit’ (at 5).

134  Tatjana Hörnle ­ reparatory acts such as recruitment or transport to the place of future exploitation.78 p From the perspective of criminalisation theory, this does not make sense.79 Legislatures might consider additional layers of preparatory offences that include recruitment, transfer etc. However, if protecting a right to not be exploited, the law should put the primary focus on the core of wrongdoing.80 The touchiest subject is whether and which collective interests should be protected, and how this should be done. Concerns about the undermining of labour regulations could be addressed by a better enforcement of labour laws and safety provisions regarding prostitution. However, it might be worth considering whether some features of the current prohibitions against human trafficking should be integrated into the laws against the smuggling of migrants, for instance, by listing recruitment and harbouring in this context. Evidently, regulation of migration requires many more considerations than I  could sketch here, the most controversial points being how collective interests in selective immigration should be weighed against humanitarian duties and the possible demands of global justice. Only one conclusion can be drawn here: if, all things considered, the decision is to be restrictive towards hard-to-integrate groups of potential immigrants, this should not be disguised with human rights talk. References to vulnerability and protection of victims’ rights are dishonest if prohibitions protect collective interests of citizens. REFERENCES

Alexander, M, The New Jim Crow (New York, New Press, 2010). Archard, D, Sexual Consent (Boulder, Westview Press, 1998). Davy, D, ‘Anti-Human Trafficking Interventions: How Do We Know if They are Working?’ (2016) 37 American Journal of Evaluation 486. Devlin, P, The Enforcement of Morals (Oxford, Oxford University Press, 1965). Doezema, J, Sex Slaves and Discourse Masters: The Construction of Trafficking (London, Zed Books, 2010). Dubber, M, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 53 American Journal of Comparative Law 679. Efrat, A, ‘Global Efforts against Human Trafficking: The Misguided Conflation of Sex, Labour, and Organ Trafficking’ (2016) 17 International Studies Perspectives 34. Engländer, A, ‘Revitalisierung der materiellen Rechtsgutslehre durch das Verfassungsrecht’ (2015) 127 Zeitschrift für die gesamte Strafrechtwissenschaft 616. Feinberg, J, The Moral Limits of the Criminal Law, Vol 1: Harm to Others (Oxford, Oxford University Press, 1987). Fitzgerald, SA, ‘Vulnerable Bodies, Vulnerable Borders: Extraterritoriality and Human Trafficking’ (2012) 20 Feminist Legal Studies 227.

78 Thorburn in his chapter in this volume draws a parallel to the possession of narcotics or burglary tools – these are preparatory offences too. 79 See the chapter by Viganò in this volume. 80 Provisions that address specifically labour exploitation, forced labour and forced prostitution can be found in §§ 232a–233 of the German Criminal Code; see the chapter by Viganò in this volume.

Human Rights Activism and its Consequences for Criminal Law  135 Gallagher, A, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010). Gärditz, K, ‘Strafbegründung und Demokratieprinzip’ (2010) 49 Der Staat 331. Hörnle, T, ‘“Rights of Others” in Criminalisation Theory’ in AP Simester, A du Bois-Pedain and U Neumann (eds), Liberal Criminal Law Theory: Essays for Andreas von Hirsch (Oxford, Hart Publishing, 2014) 169–85. Hörnle, T, ‘Theories of Criminalization’ in M Dubber and T Hörnle (eds), The Oxford Handbook of Criminal Law (Oxford, Oxford University Press, 2014) 679–701. ——. ‘The Role of Victims in Punishment Theory’ in A Bottoms and A du Bois-Pedain (eds), Penal Censure: Engagements within and beyond Desert Theory (Oxford, Hart Publishing, 2019, forthcoming). Husak, D, ‘The Criminal Law as Last Resort’ (2004) 24 Oxford Journal of Legal Studies 207. ——. Overcriminalization (Oxford, Oxford University Press, 2007). Jakobs, G, ‘Imputation in Criminal Law and the Conditions for Norm Validity’ (2004) 7 Buffalo Criminal Law Review 491. Jareborg, N, ‘Criminalization as Last Resort (Ultima Ratio)’ (2004) 2 Ohio State Journal of Criminal Law 521. Mayer, R, ‘What’s Wrong with Exploitation?’ (2007) 24 Journal of Applied Philosophy 137. Nuotio, K, ‘Theories of Criminalization and the Limits of Criminal Law: A Legal Cultural Approach,’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford, Oxford University Press, 2010), 238–62. O’Brien, E, ‘Human Trafficking Heroes and Villains: Representing the Problem in­ Anti-trafficking Awareness Campaigns’ (2016) 25 Social and Legal Studies 205. Robinson, P, Distributive Principles of Criminal Law (Oxford, Oxford University Press, 2008). ——. Intuitions of Justice and the Utility of Desert (Oxford, Oxford University Press, 2013). Roxin, C, Strafrecht Allgemeiner Teil, Bd I, 4th edn (Munich, CH Beck Verlag, 2006). Sample, R, Exploitation: What it is and Why it’s Wrong (Lanham, MD, Rowman & Littlefield, 2003). Shin, YJ, ‘Human Trafficking and Labour Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753. Steiner, H, ‘Liberalism, Neutrality and Exploitation’ (2013) 12 Politics, Philosophy & Economy 335. Stuckenberg, CF, ‘Grundrechtsdogmatik statt Rechtsgutslehre’ (2011) 158 Goltdammer’s Archiv für Strafrecht 653. United Nations Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons (New York, United Nations, 2016). Von Hirsch, A and Seelmann, K (eds), Mediating Principles. Begrenzungsprinzipien bei der Strafbegründung (Baden-Baden, Nomos Verlag, 2006). Waldron, J, ‘A Right to Do Wrong’ (1981) 92 Ethics 21. Wertheimer, A, Exploitation (Princeton, Princeton University Press, 1996). Wilson, M and O’Brien, E, ‘Constructing the Ideal Victim in the United States of America’s Annual Trafficking in Persons Report’ (2016) 65 Crime, Law and Social Change 31.

136 

8 What Does the Trafficker Do Wrong and Towards What or Whom? CLAES LERNESTEDT

It is, of course, a tautology that all choices are constrained. We always choose from among a limited set of options. Nonetheless, some sets of options are more constrained than others…1 I.  INTRODUCTION: TWO UNNOTICED TURNS AND ONE SUSPICION

M

y interest in approaching the legal regulation of human trafficking the way I do in this chapter was aroused when I saw in Sweden what might be characterised as a few important turns taking place through changes in the existing criminalisation.2 However, despite these changes, the criminalisation seemed to be conceived of as still being in relevant senses the same: the potential consequences of the changes were not given proper attention (hence I refer to the turns as unnoticed). This made the problems with the criminalisation worse. The first turn, which is also the one that is most central to my chapter, had to do with issues of voluntariness and freedom by the allegedly trafficked person. The turn was a consequence of the constant and general view that the regulation and its application were not ‘effective’ enough (see more on this below), but it was also more particularly a reaction, from the prosecutors and the legislator, to the outcome in a few court cases. What was important – and indeed not a small issue! – was how to look at and make intelligible the world, a place known for some being worse off and some better off, individually and structurally. So, what was the story? From Sweden’s initial enactment of the criminalisation of human trafficking (in 2002), the crime was (and it is still) characterised as a crime against the person, and thus as a crime that produces ‘crime victims’. In harmony with this (or so I shall argue), the first versions of the regulation contained explicit or implicit demands in various ways related to (the degree of) voluntariness, (the degree of) freedom etc by the specific person of flesh and blood allegedly ‘trafficked’ in the individual case. Such demands gave the courts a possibility and a duty to sift – to distinguish between



1 A

Wertheimer, Coercion (Princeton, Princeton University Press, 1987) 9–10. BrB (the Swedish Criminal Code) 4:1 a.

2 See

138  Claes Lernestedt i­ndividual cases – on the basis of such parameters. Enter a few court cases, concerning young women from poor conditions in Eastern Europe who were brought – or came, to put it slightly differently – to Sweden to sell sexual services, cases in which the courts did not find the involuntariness and lack of freedom established that the law required. As a consequence, the courts did not convict the defendants of human trafficking and thus classified the women neither as ‘trafficked’ nor as ‘crime victims’. The planned activities (the selling of sexual services) had already taken place, so the defendants were instead convicted of pimping etc; pimping is a lesser crime in terms of crime seriousness and at least as a point of departure, the sex seller is not given victim status (the crime of pimping is not seen as committed against the seller, but against the public). I will mention two reactions – one from the prosecutors and one from the legislator – to the courts’ unwillingness to convict. One reaction, regarding what the individual prosecutor should do in response to the then present state of things (with the then existing demands of the legislation etc), came from the Prosecutor-General: in a report summarising court practice etc, but also giving instructions to prosecutors,3 it was suggested that the prosecutor in the individual case should try to get, and submit to the court, evidence of structural inequalities (poor living conditions and so on) not only regarding the individual of flesh and blood who it was claimed was ‘trafficked’ in the particular case at hand, but also regarding general living conditions in the place (city or country) where he or she came from. Some quotes from these instructions are given below: 1. To prove the first requisite, that is, ‘difficult situation’, it is according to today’s court practice of great importance that the questioning of the plaintiff is intimate/profound enough regarding personal and economic conditions and regarding the motives for what he/she has done. Written evidence (eg, from the Foreign Department) regarding income and other economic conditions in other countries might need to be presented to the court. It may also be an advantage if a description of background conditions is given or a videotape depicting particularly difficult living conditions is shown. Remember that one needs to prove that the defendant has intent in relation to these conditions … 2. Regarding the second requisite, that is that the plaintiff did not have ‘any other real or acceptable alternative but to yield to the will of the defendant’; in the questioning of the plaintiff, it must be profoundly penetrated what considerations took place and what real possibilities or alternatives existed at that time. The defendant should be thoroughly questioned regarding the motives for choosing women in a weak position. One might argue that these are strategic parts of the crime plan, that is, that these women can more easily be exploited, and that it is financially more rewarding. Consider further evidence regarding the living conditions in the countries the women come from. (Author’s translation)

The ambition was, it seems, to be able to ‘prove’ (some of) the structural components present that the courts had not – in the Prosecutor-General’s opinion – given enough consideration or weight. The thought surely was that if such an addition of context would work as wished for, then the courts would alter their traditional atomist way of looking at the individual and become more inclined to see a structurally based (or at least structurally coloured) lack of voluntariness and freedom by the allegedly trafficked person, and thus (easier) find the demands for involuntariness and so on to be met. 3 Åklagarmyndigheten, RättsPM 2007:2. Människohandel (för sexuella ändamål) – möjligheter och svårigheter vid rättstillämpningen. Rapport 2, 2007.

What Does the Trafficker Do Wrong and Towards What or Whom?  139 Another reaction – part of a continuous process ever since the first version of the human trafficking criminalisation was enacted – has been a string of changes or proposed changes in the law, all aiming to make the legal regulation more ‘effective’ in the sense of producing more convictions. This line of thinking seems to presuppose and take as a point of departure that: (a) there are vast numbers of ‘human trafficking’ cases out there; and (b) the main problem is that the construction of the criminalisation process makes it too difficult to find them, prosecute them and secure a conviction.4 Consequently, one major ambition has been to remove obstacles for conviction. Central among such obstacles have been deemed the opportunities for the courts to address and use as sifting tools issues of voluntariness, freedom etc on the individual level, regarding this unique, allegedly ‘trafficked’ person. When such changes in the regulation have been proposed and effectuated, with the result that the courts’ examination gets more abstracted from the concrete parties and thus loses ‘closeness’ to the person allegedly trafficked (I will return to ‘closeness’ in section III below), there should have been much discussion, but has been no or little, regarding how the changes might affect against what or whom the crime of human trafficking should be seen as directed. The second unnoticed turn – where again after a substantial change in the law, the regulation seemed to be conceived of as being the same – concerned the trafficking purposes. As in some other countries, Sweden’s initial criminalisation of human trafficking contained only trafficking for sexual purposes. Later, the regulation was changed to also include other purposes (including non-sexual labour). What was unnoticed in this change? There was and is of course awareness that after the change, more purposes than sexual purposes can be included as part of the crime of human trafficking. However, awareness seems to have been low that the ways in which we tend to conceptualise, eg, trafficking for sexual and non-sexual labour purposes, respectively, are results of quite different cosmologies and points of departure with quite differing views, not least on what constitutes ‘exploitation’ (for more on this, see section IV below). This creates ­difficulties when the two purposes are to be handled under the same umbrella. The aim of my chapter is to contribute to the discussion of what is wrong with human trafficking and, more specifically, what (if anything) the trafficker does wrong and (if so) towards what or whom. Even if the first and broader question is necessary to take into account, it is the two latter questions that are of most interest, if – as here – the focus is on matters connected to the use of the criminal law. (It should be emphasised that it is the legal regulation of ‘human trafficking’, qua structuring and labelling tool,

4 As mentioned in ch 1 of this volume, when ‘human trafficking’ is the topic, there often seem to be definitions of (at least) two kinds at play. In one kind, the definitions used and relied on are the legal ones. Other definitions are instead, to a greater or lesser extent, free-standing from the legal definitions. One then starts with an – often implicit – idea of human trafficking as something free-standing from what the police and prosecutors find and can prove, free-standing from what the courts decide in particular cases, and free-standing from what the legislator has criminalised (or elsewhere legally defined) as human trafficking. And when the regulation is deemed not to work well in practice, because police, courts etc do not find/recognise the (‘free-standing’, emotive and vague) kind in what they lay their hands on, the way forward is seen to be changing the regulation in order to make what we extra-legally somehow ‘know’ is human trafficking also human trafficking in the legal sense. The latest Swedish commission ordered to investigate what more changes are needed to make the ­trafficking regulation more ‘effective’ delivered its report in October 2016 (SOU 2016:70. Ett starkt straffrättsligt skydd mot människohandel och annat utnyttjande av utsatta personer. Slutbetänkande av 2014 års ­människohandelsutredning).

140  Claes Lernestedt which is of interest.) In criminal law, typically and generally speaking, a person of flesh and blood is held responsible (and punished) for having done something specified, for having done this specified something against or to someone or something else and for having been b ­ lameworthy in doing it. That a larger phenomenon in itself is considered wrong, unwished for etc is not sufficient to legitimate criminalising the conduct of an actor who has a role within that phenomenon; in the best of worlds, there has to be more to it, and this ‘more’ must specifically concern the doings of that particular actor in the ­particular case. And even that is not enough if we are to create a crime against the person. Then we must additionally, in the individual case, be able to relate that particular actor to yet another particular actor in a relevant way: there must (here) be a ‘trafficked’ person who is also a ‘crime victim’, and he or she must have been ‘trafficked’ by this (particular) ­‘trafficker’. Under what circumstances is it proper to see the latter person not only as a victim in some more overarching sense (which, no doubt, is quite often the case when human trafficking is the topic), but as a ‘crime victim’ to this particular ‘trafficker’? What kind of predicament by the allegedly ‘trafficked’ person is necessary, and how must the trafficked and the trafficker be related to each other, what must the alleged ­‘trafficker’ have done to (or with or for) the allegedly ‘trafficked’ in order for the labels ‘crime against the person’ and ‘crime victim’– with the potential consequences that flow from such ­classifications – to be proper? In what blameworthy way must the alleged ‘trafficker’ have acted in relation to the allegedly ‘trafficked’ person? The main approach in the chapter is to: (a) accept the width of today’s criminalisation of human trafficking (I will not discuss whether the whole or parts of it should be abolished); and (b) discuss to what extent it is correct to see the crime as one against the person. Regarding a core area of the regulation, it is relatively easy to defend doing so. However, the further out from that core one moves, the more inventive the (possible) argumentation has to become. But I will argue that this does not convince: in the peripheries of the criminalisation, the crime should be seen not as one against the person, but as one against the public or the state – or, for that matter, against something above the state: the suspicion mentioned initially above is that in an EU context, the criminalisation of human trafficking is primarily not there in order to protect vulnerable individuals, but EU borders. Nevertheless, the latter kind of discussion is not the main aim of this chapter; here, the criminalisation is discussed more on its own (stated) terms, which gives a main focus on the idea of human trafficking as a crime against the person. Sections II and III give a general background to the discussion to follow of human trafficking criminalisation. They deal with different aspects of why it matters at what or whom a crime is seen to be directed (and especially whether it is conceived of as one against the person or not). The short version is that it matters because it has consequences (although these vary depending on the jurisdiction).5 Furthermore and more

5 This chapter contains more than one might have expected regarding Swedish law. Labelling something as a crime against the person has more far-reaching consequences there than it has elsewhere. However, the ambition is to illustrate and discuss general issues. It is also an important point in itself that a regulation given to, eg, the EU Member States – and thus expected to be at least similar enough between them for us to be able to talk about it – does not, when it enters a national system, enter a vacuum: the import changes the national system, but the national system also changes the import.

What Does the Trafficker Do Wrong and Towards What or Whom?  141 generally, issues related to ‘directedness’ should be seen as integrated and important parts of any structured, transparent argumentation regarding criminalisation. Section II deals in general terms with Rechtsgüter (legally protected interests) and their carriers, and with some possible consequences of the choices made regarding ‘directedness’ (including how the identity and mandate of the carrier affect the possible role of consent). Section III focuses on the category of crimes against the person and the umbrella concept of ‘crime victim’, under which one finds not only criminal law but also procedural law and damages law. Section IV discusses the human trafficking criminalisation. Section V contains short concluding remarks. By way of introduction, it should be mentioned that the remarkably odd construction of the human trafficking criminalisation – the crime is consummated before any actual exploitation etc has taken place and builds heavily on the ulterior intent of the trafficker – makes it necessary to also bring into the discussion in section IV the alleged ‘exploitation’ that would have happened after the consummation of the crime had the trafficker’s intent been realised (compare, on this point, eg, Francesco Viganò’s chapter in this volume). II. THE RECHTSGUT AND ITS CARRIER

Let us now turn to the general background and start with legally protected interests and their carriers. Especially in the German-speaking world, but also in the Nordic countries, for example, the concept of legally protected interests (Rechtsgüter) is considered important for criminalisation issues.6 In the German discussion, many scholars claim the Rechtsgut concept to be not only of descriptive but also of normative value, in the sense that it has a potential to provide critical yardsticks regarding ‘allowed’ criminalisation, yardsticks standing free from the law (or, after the enactment of the German Constitution, at least from the criminal law).7 However, in this chapter, ideas of legally protected interests will be used as descriptive tools. As important as the protected interests are their carriers (Träger) and their mandate. On the most general, abstracted level, it is reasonable to characterise all crimes as being directed at the state qua upholder of the norm order of criminal law.8 It is on a next and 6 In the Anglo-American discussion, this first step tends to get embedded in the discussion of what at least I think of as a next step: ‘harm’ etc. 7 For suggestions of more ‘transcendent’ kind, see, eg, C Roxin, Strafrecht. Allgemeiner Teil. Band I. G ­ rundlagen, 3rd edn (Munich, Beck, 1997) 13 ff; and W Hassemer, ‘Grundlinien einer Personalen Rechtsgutslehre’ in L Philipps et al (eds), Jenseits des Funktionalismus. Arthur Kaufmann zum 65. Geburtstag (Heidelberg, Decker & Müller, 1989) 85–94. For alternative views, see, eg, G Jakobs, ‘Was schützt das Strafrecht: Rechtsgüter oder Normgeltung?’ in T Shiibashi (ed), Aktualität und Entwicklung der Strafrechtswissenschaft. Festschrift für Seiji Saito zum 70. Geburtstag (Tokyo, Shinzansha Verlag, 2003) 760–79; and K Amelung, ‘Rechtsgutsverletzung und Sozialschädlichkeit’ in H Jung et al (eds), Recht und Moral: Beiträge zu einer Standortbestimmung (Baden-Baden, Nomos, 1991) 276: ‘Ein Rechtsgut … kann … die Kaaba in Mekka, ein Tier oder ein Moor sein.’ The German discussion on the principles of criminalisation etc is in many senses quite similar to the Anglo-American one; the concepts used differ, but the kind of discussions (and the suggested outcomes of the discussions) are to a rather large extent the same. One potential difference of interest is that today, in the German Rechtsguts-oriented discussion (today meaning after the Second World War), one turns to the constitution for yardsticks separate from the criminal law, something which (as far as I know) has not happened that much in Anglo-American discussions building on ‘harm’, ‘offence’ etc. 8 G Jakobs, Strafrecht. Allgemeiner Teil. Die Grundlagen und die Zurechnungslehre, 2nd edn (Berlin, de Gruyter, 1991) 9 f, 35 ff.

142  Claes Lernestedt less general level that Rechtsgüter and their carriers become of interest. As is well known, the crime catalogue is normally divided into a few subgroups; the most common division today is made between crimes against the person, crimes against the public and crimes against the state, with distinctions based on the carrier (or main carrier) of the interests protected in the subgroup.9 Within each subgroup, further distinctions are based on what particular interest of the carrier the crime attacks; sexual crimes, for example, are one distinct group within the crimes against the person.10 A Rechtsgut-based demand of the ‘descriptive’ kind is that for a certain (suggested) criminalisation, the interest or interests claimed to be protected are formulated with enough transparency and substance. The interests form a hierarchy with human life as the highest interest (high, although not as high in the hierarchy would be the persistence of the state). Ultimately, every criminalisation could be seen as being there to protect (some aspect of) human life. But the distance, the number of steps in the chain until the ultimate interest is directly attacked varies largely (compare, for example, murder and a prohibition against carrying a knife in a public place: the latter protects in the end the same interest as the former, but it takes some steps to get there). A certain form of criminalisation can protect more than one interest. Vertically, this is almost always the case, to the extent that one also sees lower steps in the hierarchy as forming their own Rechtsgüter. What I wish to elaborate a bit more upon is what we for the sake of distinction instead might call horizontal issues. Two unproblematic examples are robbery and rape, both committed through assault and battery; one protected interest for both of these crimes is physical integrity, while another protected interest is for the one (robbery) property and for the other (rape) sexual integrity. In both examples, the carrier of the two interests is the same: the person. A bigger source of potential problems are crimes where on the one hand the individual (the person) and on the other hand some other entity (the public or the state) are both carriers of interests within the same criminalisation. A first stop to be mentioned in this genre is over-fermented doughs.11 Often a product of the legislator’s wish to cast the net wide, such a criminalisation is characterised by a core protecting the interests of one carrier and peripheries protecting another interest, perhaps with another carrier. One Swedish example is the regulation of crime of child pornography.12 The interest protected in the core is nowadays often said to be the sexual integrity of the real, existing child of flesh and blood who was filmed, photographed etc. When someone later watches the film, this violates the sexual integrity of this child; the child is the carrier of the interest. But under the same criminalisation also falls, for example, the producing or handling of virtual child pornography, like (as an extreme example) the drawing of a stick man-child in a sexual situation. In such cases, the carrier is not the person (there is no person), but something else, and the Rechtsgut is also another. In later preparatory works, it has been suggested that the protected interest is something like ‘the Child as

9 Property crimes is often constructed as a separate group, since in many systems it does not matter for the purposes classification from whom or what object was stolen etc. 10 Further distinctions are based upon how that particular interest is attacked. 11 The term coined in C Lernestedt, Kriminalisering. Problem och principer (Gothenburg, Iustus förlag, 2003). 12 See BrB 16:10 a. This criminalisation does not cover the initial sexual crimes, if any, against a real child; such crimes are regulated elsewhere in the code (ch 6).

What Does the Trafficker Do Wrong and Towards What or Whom?  143 Idea’. We have then moved from the interests of a person to some kind of non-personal interest. Where over-fermented doughs may be created consciously as well as unconsciously, we then turn to something distinctly conscious: it can be a tactical move from the legislator to state that a certain criminalisation protects the interests of more than one carrier. If one carrier is the person and one does not want issues of consent etc to be given relevance, then one also suggests the existence of another, non-individual carrier: the public or the state. The Swedish regulation of the buying of sex is interesting here (not least in relation to the object of our volume).13 Any buying of sexual services is criminalised: no sifting is made between (classes of) individual cases on the basis of consent, freedom, voluntariness etc. The original preparatory works were unclear regarding protected interests and carriers. Today, the crime is said to be at least partly, at least in some senses, committed against the individual seller of flesh and blood, but also against vaguely described public interests (including ‘society’s interest in the absence of sex trade’), the latter being introduced, I would suggest, in order to avoid issues related to the consent of the seller. Now why is this – lost relevance of consent – the consequence of introducing a non-person interest? I as a person can only consent in a way which makes non-criminal what the other does to or with me, if all the legally protected interests of the crime in question are ones that I may fully dispose of. A first condition for this, which is necessary but not sufficient, is that I (qua person) am the sole carrier of the interest(s) in question. This means that if a certain crime is defined as not only one against the person, but also against, for example, the public, then the person – in the example above, the seller of sex – is not in a position to dispose of over all the interests protected by the criminalisation. Thus, the relevance of consent disappears if such a suggestion is unchallenged on ‘formal’ or ‘technical’ grounds. But if the buying of sex would be seen as exclusively a crime against the person, with the seller the sole carrier of the protected interest(s), then it would be more difficult to escape a discussion regarding consent, voluntariness etc, accompanied by demands that the legislation gets designed in a way which enables sifting between the voluntary and the involuntary, the consensual and the non-consensual etc. There is, though, another way for a legislator to (try to) fend off issues related to consent. Even if a certain form of criminalisation is said to protect solely the interests of the person, it may still be that the (sole) carrier is not given the mandate to dispose of his or her interests through waiving it. Thus, with (a) killing with consent and (b) sex with a consenting under-age individual, the Rechtsgut in both cases is one of the person only – the sole carrier is the person consenting to die or the under-aged individual having consensual sex – but they are not allowed to waive the(ir) interest. Regarding the underaged individual, it could be said that (what is defined as) the carrier’s interests are also protected against the carrier’s will.14

13 See BrB 6:11. 14 Killing with consent is in this sense a more complex issue, where things would probably be put in a slightly different way. There seems to be an additional – and strong – component present in terms of ‘some things you may not do to another person, no matter what’. We might think about it in terms of the sanctity of human life, perhaps meaning that this is not for one (but for God?) to dispose over.

144  Claes Lernestedt III.  THE ‘CRIME VICTIM’ AND ITS SUB-SPECIES: PERPETRATOR PRODUCTION AND VICTIM PRODUCTION

A.  Various Kinds of Victimhood This section will focus on the connection between crimes against the person and the production of ‘crime victims’. In Sweden, ‘crime victim’ is hardly a legal term at all. However, in discussion and discourse on crime politics, the concept (for better or worse) has come to function as an umbrella under which are bundled three distinct and not fully synchronised aspects or kinds of (alleged) victim status, of which only one – the criminal law kind – has been explicitly touched upon earlier above: (1) the criminal law kind (whether or not the crime is seen partly or exclusively as a crime against the person, something relevant to consent etc); (2) the procedural law kind (where the status, målsägande,15 gives rather prominent procedural rights); and (3) the damages law kind (whether the person is entitled to claim damages). The three kinds are formally distinct. They belong to different parts of the law. Formally, there is no necessary connection between them, something which in theory means that in relation to a certain type of crime, one could qualify for one or two of the aspects, in various combinations, without necessarily qualifying for the remaining aspect(s).16 In practice, though, the three tend to be quite tightly tied to each other, at least in the sense that if a class of crime is seen as (exclusively) a crime against the person, that is, as belonging to (1), then status as (2) and (3) tends to follow more or less automatically.17 This means that the classification ‘crime against the person’ is far from innocent; much is at stake. In my opinion, the strong connections between the three are not fully correct; different demands, not least in terms of ‘closeness’ to concrete situation and person(s), should in principle be tied to each kind of victimhood. B.  Victim Production, Perpetrator Production and the Relations between Them It is sometimes good to mention the trivial truth that ‘crime’ is generally thought of as something that does not exist prior to criminalisation. To the extent that this is accepted, neither ‘perpetrators’ nor ‘crime victims’ exist before criminalisation. In this sense, it is basically (and mostly) parliament that decides how much crime exists in a society, who are to become possible perpetrators and victims of crime etc.18 In this (limited) sense, society produces perpetrators as well as victims. 15 See the Swedish Code of Procedure (RB) 20:8. 16 For example, it is not so unusual that a certain kind of crime is seen as directed at something else than person (eg, against the public), but procedural status is still given. 17 Here should be added that in Sweden, the damages issues are regularly dealt with at the same trial as the criminal law issues rather than at a separate trial. The outcome in the criminal law parts will also be largely decisive for the damages parts. 18 However, in Sweden, courts can also produce new (groups of) crime victims, in the senses of (2) and (3) above.

What Does the Trafficker Do Wrong and Towards What or Whom?  145 How should we go about producing each category and which general guidelines should be followed? As things stand today, this issue is far more well discussed regarding one of the categories. When it comes to perpetrator production, there is a vast body of rules and recommendations, developed over centuries, on how to go about this at the legislative stage as well as when the laws are to be applied: various kinds of principles for criminalisation, as suggested mostly by scholars and also sometimes by legislators; the rules for ascription of responsibility in the so-called general part of criminal law, containing requirements that have to be met in order for someone’s conviction for a crime to be legitimate; and so on. To summarise, the conditions for perpetrator production are well discussed and even if we might disagree on certain issues, we would probably be able to agree at least on which are the issues to be discussed. Regarding victim production, things are different. We have not thought about it that much and, as a consequence, there is far from an established body of rules and recommendations regarding how to proceed with this production; not so much has been said regarding the necessary conditions for a certain behaviour in certain situations to be properly seen not only as a crime, but also as a crime that produces victims. One reason for this is of course that the crime victim, as we now think about this figure, is a rather recent invention.19 For a number of reasons, though, discussions on principles for victim production are necessary. One such reason is that an ideal of restrictiveness should guide not only the production of perpetrators, but also the production of victims. In relation to this, it might be objected that there is no reason to be as restrictive with victim production as with perpetrator production: being classified as a perpetrator is something completely negative, but being classified as a crime victim may to some extent even be considered a positive thing (because it might give advantages, such as various kinds of assistance or a certain ‘status’ – see above regarding procedural rights etc). However, one reason for my view – that an ideal of restrictiveness should also act as a guide regarding victim production – is that the production of perpetrators and the production of victims, respectively, are tightly tied to each other. This means mostly that if for some reason one would want to produce new and more (kinds of) crime victims, then at the same time, one would need to produce new and more (kinds of) perpetrators; at least with a narrow definition of ‘crime victim’, you do not get any victims of crime unless you present a matching class of perpetrators. It might be that sometimes you are more interested in giving a certain group the status of ‘crime victim’ than in giving another group the status of ‘perpetrator’, but you nevertheless have to criminalise some behaviour of the latter in order to be able to give the desired status to the former. Conversely, if the legislator wishes to produce a new group of perpetrators, things are (often) easier: we can construct crimes as ‘victimless’ and thus without having to produce a new group of crime victims. One might be of the opinion that this kind of discussion is superfluous: normally, when we discuss a new criminalisation in spe, we surely are equally interested in: (a)  creating a new group of perpetrators; and in (b) creating a new group of victims. This is often true, but it must not always be the case: in relation to a particular phenomenon, we might deem it more important to be able to create one group than the other. 19 Much of the design and ideology of the ‘modern’ system of criminal law builds on a cosmology containing only two actors: the state and the (possible or actual) perpetrator.

146  Claes Lernestedt We might even create the one group because we (think we) need that in order to be able to (legitimately) create the other.20 And it should be emphasised that this is not all that the production of a group of ‘crime victims’ can do; not least as a consequence of the ‘rise of the victim’ in the last few decades,21 a legislator can find it attractive to use the idea of crime victims (preferably of the ideal kind touched upon in Rita Haverkamp’s chapter in this volume) instrumentally, for example, to facilitate the gaining of public acceptance for harsher punishments and other kinds of intensification of criminal law. C.  Getting ‘Close’ Enough If one adheres to an ideal of restrictiveness also for victim production, then rules and recommendations must be used when deciding whether a certain kind of crime may properly be considered one against the person or not (something which will heavily influence whether additional kinds of victimhood – procedural law, damages law etc – will be given or not). Space constraints mean that a full account cannot be given here, but to try to say at least something in the matter, I would propose, as a general rule of thumb, that in order for a particular kind of crime to be legitimately characterised as a crime against the person, the criminal law must metaphorically speaking have the opportunity to get ‘close’ enough to this specific person (the alleged ‘victim’) in this concrete situation. It should not suffice that the crime is seen as committed against some kind of abstracted entity (compare ‘the Child as Idea’ concept mentioned above): there needs to be a unique Ulrika or Sven, and it needs to be shown or well-founded enough assumed that what the alleged perpetrator did came close enough and was blameworthy enough in relation to this particular person. Different demands should also – in principle! – be tied to the different kinds of victimhood: generally speaking, more ‘closeness’ should be required for victimhood in procedural law and damages law than in the criminal law (and most of all should be required for damages law victimhood, where the outcome will be a distinct horizontal obligation). However, not least due to the tight connections in practice between the three, criminal law victimhood also needs to be restricted.22 So how should we go about achieving this and how should the legislator and the courts share between them the production in the individual case? The doings of the 20 In medieval Sweden’s criminalisation of bestiality, the animal’s owner had to be legally constructed as the complainant, even though the crime ‘really’ was seen as committed against another carrier of interest: the Church. This way of constructing the delict was necessary because at that time, if one wanted to construct a legitimate ‘Sittlichkeitsdelikt’, it was necessary to have a person of flesh and blood as the ‘victim’ of the crime. Hence, in order to be able to criminalise bestiality at all – and thus produce the group of perpetrators and punish them (at all) – one had to construct a (rather far-fetched) class of victims. 21 The term borrowed from M Matravers, ‘The Victim, the State, and Civil Society’ in AE Bottoms and JV Roberts (eds), Hearing the Victim: Adversarial Justice, Crime Victims and the State (Cullompton, Willan, 2010) 1–16. 22 Here might be added that even if perpetrator production and victim production are in practice closely linked, it is far from obvious that what would be an adequate delict construction for perpetrator production would also be adequate for all kinds of victim production. Regarding perpetrator production, typically dangerous behaviour is what should be central to criminal law (meaning that the existence or not of an ‘effect’ should not play such a major role as it does in most jurisdictions). This – correctly – creates a gap between perpetrator production and victim production. Such things will not be developed here; for more on perpetrator production, see C Lernestedt, ‘Victim and Society – Sharing Wrongs, But in Which Roles?’ (2014) 8 Criminal Law & ­Philosophy 187.

What Does the Trafficker Do Wrong and Towards What or Whom?  147 alleged perpetrator must be able to be related in a relevant way to some unwished-for state by the alleged victim. First, it should be said that a demand for ‘closeness’ does not necessarily require that a particular delict construction is used. Every form of criminalisation, one would hope, is there to (try to) see that some unwished-for state of things can be avoided, but this does not necessarily require that this unwished-for state of things, and the relation between it and the alleged perpetrator, becomes a prerequisite for the crime: regarding some kinds of crime, the unwished-for state may correctly be presumed. But delict construction is still important. I will say something brief about it. In what follows, on the level of delict construction, discussion is given to the relation between on the one hand an act (X) and on the other hand the harm etc that this act must have caused the alleged victim (Y). One important question for the construction of a class of crime is who – the legislator or the court – should in the individual case decide (1) whether Y and if so (2) whether X stands in a relevant relation to Y. The court always has to decide whether X is established in the individual case. Turning to the remaining questions, it is at one end of the spectrum given to the court to decide, after having established X, whether also Y and a relevant relation between them is established. Here, the court must sift within the group of individual cases where X exists: in some cases, the court will reach the conclusion that Y is established and that X stands in a relevant relation to Y; in other cases, the court will find that Y is not established or that Y is established, but with no relevant relation between it and X. This kind of construction is found, for example, in what is normally referred to as ‘effect crimes’. At the other end of the spectrum, the legislator presumes, through the delict construction itself, in advance and for the whole class of X, that if X so Y and a relevant relation between them. Only X is then made a prerequisite for the crime. The court needs to establish only X and must do nothing at all with Y and its relation to X. This kind of construction falls under what are called ‘pure behaviour crimes’.23 If an ideal of restrictiveness should guide victim production, then for only a rather small number of classes of crimes should it be allowed to be presumed beforehand, already at delict construction, that if X so Y and a relevant relation between them. Instead, a kind of mental point of departure regarding the construction of a crime against the person meant to produce ‘crime victims’ should be that not only X but also Y and the relation between them must be established in the individual case (regarding this specific, allegedly affected individual). Exceptions should be accepted, some even with the pure behaviour crime construction; for example, with rape, it seems reasonable to let the ‘effects’ of X be presumed. However, for other kinds of crimes – where one might expect to find variety in a sense that would be deemed relevant – it should be left to the courts to sift between blameworthy and not blameworthy on the side of the alleged perpetrators, and ‘victim’ and ‘not victim’ on the side of the alleged victims. In relation to human trafficking (as will be discussed in section IV below), I can see no reason good for not sifting, on the basis of relevant voluntariness etc, to the extent that the crime is to be considered a crime against the person.

23 Further constructions, with endangerment (specific or abstract) as the common denominator, exist between the ends of the spectrum. The legislator then leave it to the court to establish X and some relation between X and a possible Y.

148  Claes Lernestedt This is not to deny that there are also good reasons not to (try to) get ‘close’. A pessimist (who probably would refer to himself or herself as a realist) would say that if one wants to be able to provide at least some kind of rudimentary equal treatment of defendants, even if only a shallow one, then it is a good idea to stay more distant, accepting that ‘the wooden gloves of criminal law’ neither could nor should be transformed into something else.24 This is true and important, but in order for the demand for blameworthiness by the alleged perpetrator to be taken seriously and not only as something formal, tools for sifting must be available. Let us return to the buying of sex, this time in order to illustrate the kinds of choice that need to be made and the problems connected to them. This is a kind of crime where – in principle! – not too much should be allowed to be presumed if a demand for blameworthiness and legitimate victimhood in the individual case is to be respected. Regarding issues related to voluntariness etc among sex sellers (without the ‘trafficking’ and under-age components), in a discussion of how a criminalisation of the buying of sex should be constructed, I have used three positions that might be of help when discussing trafficking:25 (1) the atomist position,; (2) the differentiated position; and (3) the profoundly structural position. The atomist position starts with a very strong presumption for the existence of freedom and voluntariness, with a ‘shallow’, allegedly de-contextualised (and in the criminal law well-known) way of looking at the individual and the situation. According to the position, it is possible to sell sexual services in the same way as any other commodity – selling sex can be a job like any other. The profoundly structural position, on the other hand, starts with a very strong presumption for the existence of unfreedom, involuntariness, as seems to be the Swedish legislator’s standpoint: more or less that if a woman sells sex to a man, then it is by definition involuntary, structurally and, as a consequence, individually.26 What unites the atomist and profoundly structural positions is that no or little room is given for sifting; a criminalisation guided by an orthodox version of the profoundly structural position would be of the kind where establishing X (a man bought sex from a woman) is the only task given to the courts; the rest – the further context – has been already presumed by the legislator. The atomist and profoundly structural positions mirror each other in the sense that both are unwilling, when it comes to the construction and application of criminal law, to distinguish between groups and between concrete individuals. In relation to the selling of sexual services, neither of these positions is correct, I would say, when related to the rather broad spectrum of individual cases and differences existing (and to the demand, as above, for finding relevant blameworthiness by the alleged perpetrator in the individual

24 I think that I have found the expression in a publication by Winfried Hassemer. 25 C Lernestedt, ‘Finns det grader i helvetet?’ in C Lernestedt, Straffrättens karta och landskap (Stockholm, Norstedts Juridik, 2013) 457–72. 26 Here should be emphasised that the criminalisation covers all constellations regarding sex of the parties. However, the ideology behind the regulation rests heavily on the idea of a woman as the seller and a man as the buyer.

What Does the Trafficker Do Wrong and Towards What or Whom?  149 case): the atomist position would be under-inclusive (some sellers would wrongly be characterised as free enough, something which means that too few buyers would be blamed and too few sellers would be ‘victims’) and the profoundly structural position would be over-inclusive (some sellers would be wrongly characterised as unfree, something which means that too many buyers would be blamed and too many sellers would be seen as ‘victims’). If one wishes to let criminal law capture the complexity of reality in a decent way, respecting demands for blameworthiness on the side of the alleged perpetrator as well as an idea of restrictive victim production, some kind of differentiated position is – in principle – necessary. But since such a position is necessarily more complex, it also has disadvantages that the two other positions lack: if one is to make distinctions between (types of) cases and if one is to allow (and indeed demand) that sifting takes place, then one needs to decide what differences are relevant to take into account, what distinctions should be constructed, who (legislator or courts) should be responsible for how much and what of the sifting etc. In such a case as that involving the sex seller, the sifting needs to consider what is voluntary/free enough, and this should be left to the courts to establish in the individual case. A criminalisation based on the profoundly structural position should not be allowed to be (fully) defined as a crime against the person. In the next section, the discussion will cover getting ‘close’ enough regarding the criminalisation of human trafficking. IV.  THE HUMAN TRAFFICKING REGULATION

A.  The Present Criminalisation: Exploitation A full moral theory of sexual relations would answer at least three questions: (1) when are sexual relations morally unworthy, or bad? (2) when are sexual relations morally impermissible or wrong? (3) when should sexual relations be illegal or criminal? … [W]e can distinguish between the three moral questions. They are all moral questions, but they are different moral questions.27

Returning to the human trafficking regulation, the quote from Wertheimer above makes a good companion: its general message is potentially broader than sex. In relation to human trafficking, I would also like to add, mutatis mutandis, one further dimension: when should the trafficker’s doings be looked upon not only as criminal, but also as a crime against the person? The focus below will be on what the (alleged) trafficker does wrong and does wrong specifically in relation to the (allegedly) trafficked person, in a way which legitimates the labels ‘crime against the person’ and ‘crime victim’, taking the width of the present criminalisation for granted.28 In one sense, though, the width is not fully accepted. With the present design of the criminalisation, there is in my opinion not

27 A Wertheimer, Consent to Sexual Relations (Cambridge, Cambridge University Press, 2003) 5. 28 This choice of approach does not suggest that a (proper) classification as a crime against the person is a necessary condition for the criminalisation to be legitimate: the section (like my chapter) is not primarily about permissible and impermissible criminalisation. However, other possible ways of arguing – here what we might call moralistic ones – must be evaluated on their own (and quite different, and quite contested) terms.

150  Claes Lernestedt so much that can be discussed in terms of the trafficker harming, exploiting etc the trafficked (see below). Therefore, aspects of the ‘exploitation’ that the trafficker’s intent must cover are also brought into play.29 In today’s human trafficking criminalisation, the crime is consummated already when (1) the trafficker has undertaken one of the trade measures (recruiting, transporting, harbouring etc) (2) with the use of one of the means (the threat or use of force, fraud, the abuse of a position of vulnerability etc), if (3) this has been done with the purpose of exploitation. At this point – which can come as early as when A recruits B using any of these means – the alleged ‘exploitation’ has not yet taken place. It is difficult to argue that the trade measures in themselves could constitute a relevant wrong. Transporting someone else – for example, if things have gotten that far – is a normal activity, and even if such a transport results, eg, in the transported person being brought illegally into another country, this in itself should not normally constitute a crime against the transported person himself or herself (here it should be mentioned that human smuggling is considered a crime against the state, not against the smuggled individual). Some of the means are criminalised (and also were before the crime of human trafficking was criminalised) elsewhere, independently and in their own right – eg, kidnapping someone and in this way forcing him or her to start a journey. For these kinds of acts, the identity as crime against the person comes quite naturally. When leaving this area, it gets increasingly more difficult and makes increasingly less sense to see the crime of human trafficking as one against the person. In relation to the abuse of a position of vulnerability – one of the means – it has to be determined which perspective should be adopted when the criminal law looks at the world (here the situation of the allegedly trafficked person): an atomistic perspective (like the Swedish courts mentioned in section I), a structural perspective (like the Prosecutor-General) or something somewhere in-between? It is true that all choices are constrained, but some choices are more constrained than others, and there comes a point beyond which the ‘bargaining position’ of the allegedly trafficked person should rightly be deemed so weak that the alleged trafficker’s deal with him or her is an abuse which legitimises the classification as a crime against the person. Here, it is important that neither an atomistic nor a profoundly structural position rules, but instead a differentiated one. Some room (albeit rather small) should exist for seeing the crime as one against the person, also outside of the core area mentioned above. Besides what has been mentioned above, any description of the crime as one against the person would have to rest heavily on the ulterior intent of the trafficker: that the trafficked person will be ‘exploited’. Could such an intent in itself legitimise the classification as a crime against the person? This would, if we stop at this early stage (with no alleged exploitation actually having taken place), be the case only if it were to be considered enough for the classification that the trafficker allows himself or herself to define or look upon the other person not as an end in himself or herself, but as a possible and legitimate tool or vehicle for the trafficker’s own aims, or at least as someone who the trafficker is entitled to treat badly.30 Now if this were to be conceived of as an accepted reason 29 Much (but not all) of what could be said regarding ‘exploitation’ and abuse of a position of vulnerability is also quite similar. 30 Compare A Wertheimer, Exploitation (Princeton, Princeton University Press, 1996) 23.

What Does the Trafficker Do Wrong and Towards What or Whom?  151 for criminalisation and for classifying the crime as one against the person, then: (1) we must conclude generally that there is a tremendous amount of criminalising to be done in Sweden and elsewhere; and (2) in relation to the human trafficking regulation, we must question the need for a trade measure at all – the regulation rests on ideas about how we should be allowed to think about one another. If the classification as a crime against the person would be allowed to rest so h ­ eavily on the ulterior intent, then it is also fundamental that it is well established exactly what it is that this ulterior intent must cover. Thus, ‘exploitation’ would be expected to provide the necessary substance to the criminalisation. However, the results seem fairly meagre. Starting with non-legal accounts of the word, one source of problems is that it can have many meanings. In ordinary language use, it might be used descriptively as well as normatively, and regarding the latter, it could signify something positive as well as something negative.31 In the positive sense of the word, I might, for example, exploit my library’s resources on a certain matter. In the human trafficking context, though, it is quite clear that exploitation is meant as a purely negative concept, so we shall now concentrate on this possible negative meaning. However, here too, there is not complete agreement on which are the necessary components in order for the concept to be adequately applied.32 What I think could be said is that a basic structure for discussing the concept would contain ingredients related to the outcome for the alleged exploiter and the exploited, respectively, and ingredients related to the process through which the outcome was realised.33 It also makes sense, if ‘exploitation’ is defined as ‘taking unfair advantage’, to assume that ‘A cannot take unfair advantage of B unless A gets some advantage from B. We can see the relevance of the “benefit to A” by contrasting exploitation with other forms of wrongdoing, such as abuse, discrimination, and oppression’.34 Whether exploitation must also include a loss by the exploited is more contested, but it seems reasonable that exploitation could be found even if the allegedly exploited also gains something through the interaction. If so, the investigation in the individual case of alleged trafficking must rely heavily on the contextual information regarding the parties (that is, not only the (future) situation of the allegedly trafficked but also to some extent, as will be discussed further below, the situation of the alleged trafficker). After having touched upon ordinary language use and some philosophers’ views, the fact that we do not find agreement on the meaning of (negative) exploitation would be of little relevance for our immediate purposes in this volume if the definitions offered in or in relation to the legal regulation of human trafficking were to be reliable. This, however, is not the case. The influential Palermo Protocol, having functioned as a model for human trafficking regulations in many countries, states the following: Exploitation shall include, 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. 31 See, eg, J Feinberg, Harmless Wrongdoing (New York, Oxford University Press, 1988) 176 f. 32 An interesting illustration is the list of 16 different definitions of ‘exploitation’ found in Wertheimer, Exploitation (1996) 10–12. One contributing factor to this is an overlap with other kinds of situations and concept – eg, ‘harm’ and ‘coercion’ – creating what Wertheimer calls the problem of occlusion; see ibid 15 f. 33 ibid 16 ff. 34 ibid 17.

152  Claes Lernestedt One notices here, for example, that in relation to sexual activities, ‘exploitation’ is defined as … ‘exploitation’! It might be possible that the function of the concept was and is thought of as most importantly emotive, the concept conveying a strong message of reprehensibleness. However, this creates problems when it comes to the interpretation of the prerequisite. To mention one problem – returning to the second ‘unnoticed turn’ mentioned at the beginning of this chapter, when (non-sexual) labour purposes were added to sexual purposes in the Swedish regulation – the concept seems to be interpreted (if at all) in a dramatically different way when the focus is on sexual purposes rather than on (non-sexual) labour. In the case of labour purposes, the activity itself is often a neutral or condoned one: working. To determine whether exploitation has been occurring (or would have been occurring had the trafficker’s intent been realised), information is instead required regarding what surrounds the activity (working conditions, wages etc).35 With sexual exploitation, things seem to be different: the context vanishes because the nature of the activity itself – eg, selling sex – in itself makes the alleged trafficker an exploiter: if the trafficking is (meant to be) for sexual purposes, then it is by definition exploitation, and very few of the criteria mentioned above in the philosophical discussion of the word (gain, loss etc) and very few of the criteria necessary to relate to in cases involving (non-sexual) labour seem to be of interest. If this is to be accepted, then the two indeed fit very badly together in the same regulation, with the same protected interest and the same carrier. Before turning to interests and carriers, I would like to make one additional point regarding exploitation: it is relational. As discussed above (see section III.C), concerning crimes against the person, different kinds of relations have to be established (or in some cases presumed) between the defendant and the plaintiff. It might concern causation (that the defendant in a relevant way caused Y by the plaintiff), but it might also relate to other things, for example, the parties’ status, roles and relations to each other. The parties have to be situated to some extent. For some kinds of crime, the law demands explicitly that the parties stand in a specific relation to each other in order for the regulation to be applicable (for some sexual crimes, such as those involving teachers and students). For other kinds of crime, differences in status might affect the interpretation of prerequisites not explicitly stating anything about status, roles etc. One prerequisite that is sensitive to such differences should be ‘exploitation’. This means that we also need to take into account, besides the predicament of the allegedly trafficked, the trafficker’s situation and the relation between the trafficker and the trafficked. For someone to be able to ‘exploit’ another, it is not enough that one of them is in a vulnerable or weak position and that the other takes advantage of that; the situation of the trafficker is also important.36 If the parties are too much ‘in the same boat’, it might be argued that no exploitation takes place. An example is the following. The parents of a Romanian Roma family begging in Stockholm were accused of human trafficking because their daughter, who was 15 years old, actively took part in the begging. The court

35 On trafficking for labour purposes, see the chapters by Matravers and van Kempen and Lestrade in this volume. 36 This is something that might constitute a difference between, on the one hand, ‘exploitation’ and, on the other hand, ‘abuse of a position of vulnerability’ as one of the means; the latter might not need to be relational in the same sense as the former.

What Does the Trafficker Do Wrong and Towards What or Whom?  153 did not find – due to the relations between the parties – that the parents ‘exploited’ their daughter: Responsibility for trafficking [of human beings] presupposes that someone ‘exploits’ another. From what is known in the case, the whole family has lived in profound poverty, and for them the natural means for maintaining the family has been begging … For X, as for her parents, it has obviously been self-evident that she should contribute to the family’s maintenance in this way. X has shared the miserable conditions of her parents, neither being better or worse off than them. Threats or force has not been shown to have existed. The question is, then, whether the circumstance that she is only 15, and also in Sweden has lived in dire poverty, could render the parents responsible for the crime of trafficking in human beings. In the court’s opinion, it has not been shown that X has been exploited. X’s age does not lead to any other conclusion. (Author’s translation)37

However, this component has received too little attention, something which might relate to the fact that it is not even clear whether the human trafficking criminalisation actually demands an intention to gain. Looking at the regulation, ‘exploiting’ someone could in the end be synonymous with ‘doing something bad to someone’. But let us now assume that the word ‘exploitation’ should be taken seriously and that it should be given a role in terms of being a tool used for sifting. Then I would suggest the following. Closest to the core area is an area where it is proper to use the word ‘exploitation’ in a way which also justifies it as being treated as a crime against the person: if, taking into account the relative positions of the parties, what is defined as an unjust advantage taken by the trafficker is seen as too blameworthy. This might also include, to some extent, situations where the trafficked person gains. But this area is not limitless and it does not at all reach all the way to the peripheries. There comes a point where the trafficker cannot properly be said to exploit the trafficked (because the gain made by the trafficked is too high, the gain made by the trafficker is too low etc), but instead – if one still desires to employ the word – exploits a situation, an unjust world, in a way which is deemed to be too immoral. Here, the crime can no longer be seen as one against the person. In addition, there comes a point where the trafficker’s behaviour would be considered to be at least morally tolerable, and where also the concept itself changes from being pejorative to being neutral, and where there is no argument left for a criminalisation (unless one wants to criminalise markets and capitalism). This makes it obvious that the courts must be given tools for sifting between individual cases; the cases are, in relevant senses, not alike. B.  The Specific Person, the Abstract Person and an Expanding Dough At the end of the last section, in relation to the use of the concept of ‘exploitation’, it was described how close to the core it might be proper to talk in terms of exploitation and to see this as a component in a crime against the person. Moving out into the peripheries, the classification as a crime against the person becomes gradually less motivated, until a point is reached where what the trafficker does should be seen as a crime against

37 Svea

hovrätts dom 2011-01-19 i B 9636-10.

154  Claes Lernestedt something else. An equal result is reached with other ways of arguing in order to defend the ‘full’ crime as one against the person. This is so because in many kinds of cases outside the core, neither what the alleged trafficker has done to (or with or for) the allegedly trafficked person nor what would be done if the ulterior intent were to be realised would qualify as a crime against the person with reasonable use of concepts like ‘harming’ (or, for that matter, ‘exploiting’). There, one has to argue in other ways, and the secret behind argumentation defending the crime as one against the person also further out in the peripheries is a gradual transformation, or mutation, of the ‘person’ against which the crime is seen to be directed. The ‘person’ allegedly affected by the trafficker’s actions gradually becomes less of – and in the end basically nothing of – the concrete Ulrika or Sven of flesh and blood in a particular situation, in a particular relation to an alleged trafficker who is also situated somewhere. Gradually, the parties turn into a kind of representatives of, or symbols for, more abstract phenomena and ideas; their names might still be there, but they themselves gradually vanish. The labels used in this process may vary, but the process is the same. Besides exploitation, (what I call) ‘pure structural harm’ and references (explicit or at least in spirit) to human dignity could be mentioned. What unites them is abstraction from the concrete parties. But they differ in terms of the degree and kind of abstraction. The first two (exploitation and pure structural harm) are of a more relational kind, whereas the third one is not (it has very little to do even with the structural positions of the participants). The elastic concept of exploitation has been dealt with earlier above. Turning to a notion of a ‘pure structural harm’, this would rest on the idea that if inequalities between the parties are of certain kinds and (for some of the inequalities) reach a certain magnitude, then the harm is present no matter what the parties think and no matter what a more shallow, atomistic eye on the parties in the situation would (want to) see. For example, if the trafficked person is a woman living under very poor conditions and the trafficker is a rich man, then the structural harm is by definition there. If applied to human trafficking, one advantage with such an approach is that the sifting can be handled with rather simple tools: one only has to look for certain characteristics, certain formal belongings, in the alleged victim and the alleged trafficker.38 The shallow way of looking at the situation makes this approach (in this particular sense) a relative to the classical-liberal shallow view. The difficulty here, again, is how to defend that this in itself should constitute a crime against the person committed by A against B. Even if one were able to localise some kind of harm by the allegedly trafficked, the question would be why this particular trafficker should be seen as blameworthy in the sense having caused the harm to the trafficked in another way than as both of them being part of structures; one would have to adopt alternative ways of thinking about causality that work well on a structural level, but less well when the issue is one involving individual blameworthiness in criminal law.39 38 In this sense, it reminds us a bit of the so-called Rotten Social Background defence, as suggested by R Delgado, ‘“Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?’ (1985) 3 Law & Inequality 9; in addition, the problems are shared. 39 However, for thought-provoking discussions on correlation and causation between, on the one hand, consumption of pornography and, on the other hand, women being battered, raped etc, see C MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987) 156 f: ‘Notice that the specific idea of causality used in obscenity law dates from around the time that it was first “proved” that it is impossible to prove that pornography causes harm … [T]he view became that p ­ ornography

What Does the Trafficker Do Wrong and Towards What or Whom?  155 Another way of arguing, still allegedly in the realm of a crime against the person, sees no context except the (planned) activity in itself. The argument is that fully independent of what the individual actors (including the seller) think about it and fully independent of their structural positions, the other’s activity is a degradation of this person not qua himself or herself as individual person, but qua representative for ‘the human being’. Here, the individual allegedly trafficked person would be markedly reduced to nothing more than a kind of symbol for humankind (‘The Human Being as Idea’). Rhetorically, we are close to the sanctity of human life or the dwarf-tossing of the German Constitution. This model might work with the selling of organs (where there is some kind of definitional stop) or the selling of sex (if one accepts the premises necessary for this – see above), but in other areas (such as labour purposes) is very difficult to handle. In sum, there comes a point – whether one argues in terms of exploitation, structural harm or human dignity – where things have been taken so far away from the alleged trafficked individual (and the alleged trafficker) that the label ‘crime against the person’ can no longer be defended. Instead, the criminalisation would need to be characterised as a moralistic one, with the carrier of the interest no longer being the individual: at hand is an over-fermented dough, a criminalisation which protects the interests of one carrier at the core and the interests of another carrier at the periphery. If this is so, and the periphery of the criminalisation protects non-person, ‘moralistic’ interests, then it is to be preferred that this is openly stated, as would be the case with argumentation, for example, in terms of the ‘commercialisation of vice’. If so, the inspiration would come from JS Mill and his idea that when something (such as a type of behaviour) exists that society in principle dislikes (finds immoral etc) but does not (allow itself to) criminalise, society might nevertheless argue that it is proper to criminalise the behaviour of the one who organises or profits from it. Mill addressed the issue in relation to the selling of sex: not the one selling sex (and not the buyer), but the pimp or the brothel-keeper might become subject to regulation: If people must be allowed, in whatever concerns only themselves, to act as seems best to themselves, at their own peril, they must equally be free to consult with one another about what is fit to be so done; to exchange opinions, and give and receive suggestions. Whatever it is permitted to do, it must be permitted to advise to do. The question is doubtful only when the instigator derives a personal benefit from his advice, when he makes it his occupation, for subsistence or pecuniary gain, to promote what society and the State consider to be an evil … Fornication, for example, must be tolerated, and so must gambling; but should a person be free to be a

must cause harm the way negligence causes car accidents or its effects are not cognizable as harm. The trouble with this individuated, atomistic, linear, isolated, tortlike – in a word, positivistic conception of injury is that the way pornography targets and defines women for abuse and discrimination does not work like this. It does hurt individuals, not as individuals in a one-at-a-time sense, but as members of the group “women”. Harm is caused to one individual woman rather than another essentially the way one number than another is caused in roulette. But on a group basis, as women, the selection process is absolutely selective and systematic. Its causality is essentially collective and totalistic and contextual. To reassert atomistic linear causality as a sine qua non of injury – you cannot be harmed unless you are harmed through this etiology – is to refuse to respond to the true nature of this specific kind of harm.’ This, in my opinion, illustrates one of the difficulties involved in moving between the structural and the individual: MacKinnon’s example might work when it comes to establishing harm, but will not work so easily when it comes to attributing the causation of this harm to an individual defendant.

156  Claes Lernestedt pimp, or to keep a gambling house? The case is one of those which lies on the exact boundary line between two principles, and it is not at once apparent to which of the two it properly belongs.40

Were we to relate this kind of argumentation to the trafficking regulation, again not all of the trafficking purposes would easily qualify; it is difficult to argue that many instances of labour are in themselves morally wrong. Sexual purposes would count. It is also interesting to note here that what seem to be related ways of arguing in the last years have surfaced in Sweden in relation to begging. There have been a few suggestions to criminalise begging itself, but far more suggestions to criminalise ‘organised’ begging, (probably) meaning the organiser of such begging. However, seldom has it been made very explicit why the latter is worse. V.  CONCLUDING REMARKS

In this chapter I have set out to discuss, in general terms, what the trafficker does wrong and towards what or whom. To do this – at least in relation to the last ‘towards what or whom’ part – might seem a superfluous thing to do; from the influential Palermo Protocol onwards, in the national regulation on human trafficking of all states that I have seen, the crime is characterised as a crime against the person that generates ‘crime victims’. Why not then just accept this description and move on? I think that one should not. It is one thing that one may entertain doubts about the ulterior aim of the trafficking regulation being to protect vulnerable individuals from becoming victims of trafficking and to terrible traffickers – when classifying and judging behaviour, it might be best to abstain from bringing too much of this sort into the equation – but it is another thing that it seems difficult in many kinds of cases today falling under the regulation to explain exactly what the alleged trafficker does wrong to the allegedly trafficked. In other words, in many cases it seems difficult – or impossible – to say why the crime should be treated as a crime against the person (with the various consequences this might have), with the trafficker characterised as having done something blameworthy against the trafficked, and not as a crime against something else. My way of tackling these issues has been to discuss what kind of argumentation (and what kind of worldviews) one would need to accept in order for the alleged trafficker’s crime to be accepted as one against the person. At the core of the regulation, the task is an easy one, but the further away one moves from the core, the being which the trafficker is said to harm, exploit etc gradually moves away from the specific person and mutates into something gradually ‘thinner’ in terms of connection to specific persons in specific situations and something gradually more ethereal in substance. There then comes a point where this increasingly diluted being is so far from the ‘person’ we normally think of in relation to crimes against the person that it is inadequate to treat the crime as being of that kind. At the peripheries, the criminalisation should instead be discussed as moralistic. For example, there comes a point (unless one is prepared to wed oneself to thoroughgoing structural thinking) where we can no longer

40 JS

Mill, On Liberty (Harmondsworth, Penguin Classics, 1985) 168 f.

What Does the Trafficker Do Wrong and Towards What or Whom?  157 accuse the alleged trafficker of exploiting this particular allegedly trafficked person; instead, what is left to discuss is the trafficker exploiting an unfair world. There comes a point where if we want to talk in terms of the trafficker doing ‘harm’, we must abandon the normal criminalisation theories and start thinking in terms of a pure ‘structural’ harm or harm done to the human being as an idea (but then, again, it needs to be explained in what sense such harm should be located in the specific, allegedly trafficked person and attributed to the alleged trafficker). I will not discuss here the extent to which moralistic reasons for criminalisation should be deemed valid; suffice it to emphasise that if that would be the flag under which parts of the human trafficking regulations sail, then many would have a lot to say on the matter. A few final things should be added. One is that even if one (in my opinion) should not accept ideas in terms of something like ‘pure structural harm’ legitimising a classification as a crime against the person – the acceptance of which would mean that very little agency would be left for an individual being in a poor predicament (which additionally means that very little room for manoeuvre would be left for another individual interacting with the first) – this does not mean that one should jump to the other position and declare structurally based arguments irrelevant. On the contrary, they should to some extent be able to also influence a judgment on whether the alleged trafficker in the individual case committed a crime against the allegedly trafficked person. In my opinion, a profound classical-liberal view on the matters misses too much of the point (it would be too under-inclusive). This leaves us with a difficult situation, in the sense that a differentiated position, allowing and demanding that sifting takes place, has to be used. It is obvious that the courts must be given a possibility and a duty to sift, and that they must be given adequate tools to do so. A second thing to add is that the kind of discussion I have been trying to offer in this chapter can, in the best of worlds, be valuable in both ways. More general ideas of victim production can provide valuable tools for a discussion of a particular criminalisation (like that of human trafficking). But it also works the other way: discussing such partly difficult issues in relation to human trafficking helps to develop what today must be said to be non-existent or at least grossly under-developed: some kind of elaborated general part of victim production. It is important that we ask not just what (if anything) is wrong, but also whom or what it is a wrong against. Did this tell us more about the human trafficking criminalisation? The fact that in Sweden a gradual abstraction from the individuals in the individual case has been treated like a non-question (or as one of merely practical value) could be a sign of a few alternative things (or of a combination of them). One possible reason is that one does not think about it at all (perhaps because, in many jurisdictions, the practical consequences of a crime being classified as one against the person are not that significant). Another possible reason, returning to the suspicion voiced at the beginning of this chapter, is that the EU does not ‘really’ see human trafficking as a crime against the person. In section III above it was touched upon victim production, perpetrator production and the relations between them were touched upon. It was suggested, for example, that sometimes one might want to create one group to be able to create the other. The human trafficking regulation might – partly – be an example of something else: both groups are created with another, third aim.

158  Claes Lernestedt REFERENCES

Åklagarmyndigheten, RättsPM 2007:2. Människohandel (för sexuella ändamål) – möjligheter och svårigheter vid rättstillämpningen. Rapport 2, 2007. Amelung, K, ‘Rechtsgutsverletzung und Sozialschädlichkeit’ in H Jung et al (eds), Recht und Moral: Beiträge zu einer Standortbestimmung (Baden-Baden, Nomos, 1991) 269–79. Delgado, R, ‘“Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?’ (1985) 3 Law & Inequality 9. Feinberg, J, Harmless Wrongdoing (New York, Oxford University Press, 1988). Hassemer, W, ‘Grundlinien einer Personalen Rechtsgutslehre’ in L Philipps et al (eds), Jenseits des Funktionalismus. Arthur Kaufmann zum 65. Geburtstag (Heidelberg, Decker & Müller, 1989) 85–94. Jakobs, G, Strafrecht. Allgemeiner Teil. Die Grundlagen und die Zurechnungslehre, 2nd edn (Berlin, de Gruyter, 1991). ——. ‘Was schützt das Strafrecht: Rechtsgüter oder Normgeltung?’ in T Shiibashi (ed), Aktualität und Entwicklung der Strafrechtswissenschaft. Festschrift für Seiji Saito zum 70. Geburtstag (Tokyo, Shinzansha Verlag, 2003) 760–79. Lernestedt, C, Kriminalisering. Problem och principer (Gothenburg, Iustus förlag, 2003). ——. ‘Finns det grader i helvetet?’ in C Lernestedt (ed), Straffrättens karta och landskap (Stockholm, Norstedts Juridik, 2013) 457–72. ——. Victim and Society: Sharing Wrongs, But in Which Roles?’ (2014) 8 Criminal Law & Philosophy 187. MacKinnon, C, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA, Harvard University Press, 1987). Matravers, M, ‘The Victim, the State, and Civil Society’ in AE Bottoms and JV Roberts (eds), Hearing the Victim: Adversarial Justice, Crime Victims and the State (Cullompton, Willan, 2010) 1–16. Mill, JS, On Liberty (Harmondsworth, Penguin Classics, 1985). Roxin, C, Strafrecht. Allgemeiner Teil. Band I. Grundlagen, 3rd edn (Munich, Beck, 1997). SOU 2016:70. Ett starkt straffrättsligt skydd mot människohandel och annat utnyttjande av utsatta personer. Slutbetänkande av 2014 års människohandelsutredning. Wertheimer, A, Coercion (Princeton, Princeton University Press, 1987). ——. Exploitation (Princeton, Princeton University Press, 1996). ——. Consent to Sexual Relations (Cambridge, Cambridge University Press, 2003).

9 Human Trafficking Supplying the Market for Human Exploitation MALCOLM THORBURN

I. INTRODUCTION

T

here has been a lot of new law on human trafficking over the past few years, but there is still very little clarity on what the specific wrong at the heart of human trafficking might be. In the popular press, human trafficking is usually thought of as a broad phenomenon that includes within it a variety of different criminal offences. This passage from a recent newspaper article gives a sense of how ‘human trafficking’ is often used as a stand-in for a large collection of criminal wrongs: Stephen arrived in Britain in the back of a freezer lorry, after a long journey on foot and in trucks from Hanoi, where he had been destitute and homeless. In Britain, he was locked up alone in a series of terraced houses that had been converted into cannabis farms, and forced over the course of four years to work as a cannabis gardener by the Vietnamese gang that had smuggled him here.1

This is a story involving coercion, deception and unlawful confinement of a trafficked person while in transit, the violation of immigration norms as he was transported illegally across international boundaries, and his exploitation upon arrival. But even though scenarios that include human trafficking might also include these and other wrongs, they are all distinct from the specific wrong of human trafficking itself. For, as the name of the offence suggests, human trafficking strictly speaking is a crime of trafficking – that is, it is a crime essentially involving the bringing of a prohibited thing to market.2 When we keep in mind this crucial point, much else about the nature of the offence of human trafficking becomes easier to see.

1 A Gentleman, ‘Trafficked, Beaten, Enslaved: The Life of a Vietnamese Cannabis Farmer’ The Guardian (31 January 2018), www.theguardian.com/world/2018/jan/31/trafficked-beaten-ensaved-life-of-cannabis-farmervietnam. 2 In the Oxford English Dictionary, ‘traffic’ is defined variously as ‘a trading voyage or expedition’ or ‘the buying and selling or exchange of goods for profit; bargaining; trade’.

160  Malcolm Thorburn If human trafficking is essentially a trafficking offence, what is the basic structure of all trafficking offences – whether they concern human beings, narcotics, firearms or anything else? Most importantly, none of them involves a wrong against any specific person; indeed, none is even ancillary (by way of attempt or party liability) to a crime against a particular victim. Instead, instances of trafficking are only wrongful in the context of a certain form of market regulation. In each case, the state identifies some item (narcotics, firearms, exploited persons, etc) that is frequently being used for nefarious purposes. The state then attempts to cut off the supply of the prohibited items to those who would carry out nefarious purposes, backing up its efforts with criminal prohibitions on trafficking in those items.3 Once that general prohibition is in place, it is a criminal wrong to bring such prohibited items to market tout court – whether or not the specific items trafficked are subsequently used for any nefarious purposes – for the core wrong is the violation of the state’s prohibition on bringing those items to market. Accordingly, firearms traffickers are guilty of an offence simply by bringing prohibited firearms to market (whether or not those firearms are ever used in any further crime);4 drug traffickers are guilty of an offence simply by bringing prohibited narcotics to market (whether or not they are ever consumed by anyone);5 and human traffickers too are guilty of an offence simply for bringing human beings to market for exploitation, whether or not they are ever actually exploited.6 Strictly speaking, then, the wrong of human trafficking is not a wrong against any particular victim, for the crime is complete before anyone has been victimised; it is a wrong against the state and its efforts to shut down a particular market.7 Usually, when the trade in a certain sort of item is prohibited in this way, it is backed up not only with prohibitions on the actual sale of the prohibited items, but also with considerably more inchoate forms of offence. Thus, in many jurisdictions, it is not only a criminal offence actually to bring a prohibited thing to market; it is also an offence simply to possess prohibited narcotics or firearms for the purpose of trafficking them.8 For if we mean to close down the market in such things, it is essential that the police is able to move in early, before a sale has actually taken place, in order to prevent the movement of the prohibited items to market. Moreover, if the point of trafficking offences is to prevent nefarious purposes by ensuring that no one has access to the prohibited items, then a ban even on possessing such items is crucial to that end as well. This same structure is present 3 Further evidence of the market orientation of most trafficking offences comes from another feature they share: they are all enormously lucrative forms of crime. As Canada’s National Action Plan to Combat Human Trafficking points out: ‘Globally, it is estimated that human trafficking is amongst the most lucrative of criminal activities, rivaled only by drug and firearms trafficking and generating billions of dollars annually for sophisticated criminal organizations’ (Government of Canada, National Action Plan to Combat Human Trafficking (Her Majesty the Queen in Right of Canada, 2012) 4). 4 In Canada: Criminal Code, s 100: ‘Every person commits an offence who possesses a prohibited firearm … for the purpose of … transferring it, whether or not for consideration, or offering to transfer it, knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.’ 5 In Canada: Controlled Drugs and Substances Act (SC 1996 c 19), s 7.1: ‘(1) No person shall possess, produce, sell, import or transport anything intending that it will be used … (b) to traffic in a controlled substance.’ 6 R v AA, 2015 ONCA 558, para 86: ‘[W]here human trafficking is a charged offence, the Crown needs to prove – along with conduct and the prohibited group – that the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation. The Crown does not need to show that exploitation actually occurred’ (emphasis added). 7 Concerning the legal interest, see the chapter by Lernestedt in this volume. 8 See the firearms and narcotics offences above in nn 4–5.

Supplying the Market for Human Exoploitation  161 in the law on human trafficking in most jurisdictions. To be guilty of that offence, one needs not actually to have brought a human being to market for exploitation; one needs only to have been in something like possession of that person for the purpose of bringing him to market for exploitation. In this and in many other ways, trafficking offences are generally highly inchoate, targeting conduct long before it crystallises into the causing of any actual harm to any identifiable victim. In this respect, they are quintessential ‘police offences’ concerned with the effective pursuit of state policies and the management of a population rather than with the vindication of any particular victim’s rights.9 Ulterior purpose – specifically, the purpose to traffic – plays a role in extending the scope of trafficking offences to highly inchoate conduct (ie, possession) in virtually all cases. But ulterior purpose also plays a further role in human trafficking that it does not in most other trafficking offences (such as narcotics or firearms trafficking). This is because in the case of human trafficking, the alleged trafficker’s purpose is essential to the identification of the prohibited thing itself. With narcotics or firearms, the prohibited thing is easily identifiable: certain classes of narcotics or firearms are simply prohibited in a jurisdiction, either as such or with a limited exception for licensed use.10 But both of these arrangements would be absurd with respect to human beings. Of course, it is generally permissible to assist human beings to offer their services on the open market; a world in which this was generally prohibited or where there was only a narrow permission to do so with a licence would be a dystopia bereft of basic human freedoms.11 Instead, the prohibition is set out narrowly as concerning only the trafficking in persons for the purpose of their exploitation – that is, making persons available as commodities to a market of potential exploiters. It is here that the trafficker’s purpose plays a much larger role in the law of human trafficking than it does in most other trafficking offences. On first inspection, it is difficult to distinguish trafficked persons from non-trafficked persons, for there is no obvious criterion by which to distinguish them. Trafficked persons are not distinguishable on the basis of any physical characteristics (as prohibited narcotics or firearms might be). Prohibited narcotics are distinguishable from permitted ones by their chemical makeup; prohibited firearms are distinguishable from permitted firearms by their design. But the same cannot be said of the prohibition in trafficking in persons. If I mean to help someone find work, I am bringing him or her to work legally; if I mean to bring that same person to exploitation, I am engaged in human trafficking. But if we mean to close down the market in persons for exploitation, we need to be sure that the items being brought to market are persons being made available for exploitation. The only way we can be sure that we are looking at a case of human trafficking is if the person is being brought to market to be exploited. And the only way we can be sure of this is to look to the alleged trafficker’s ulterior purpose. 9 This use of the criminal law has been much discussed in the wake of M Foucault, Securité, Territoire, ­Population: Cours au Collège de France 1977–1978 (Paris, EHESS Gallimard Seuil, 2004). Particularly influential in English-language criminal law theory have been M Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York, Columbia University Press, 2005); and, more recently, L Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford, Oxford University Press, 2016). 10 See nn 4–5 above. 11 Freedom of movement (at least within the borders of one’s own country) is one of the most basic human freedoms enshrined in many modern constitutions. (In Canada, this right is guaranteed under s 6 of the ­Canadian Charter of Rights and Freedoms.) Assisting persons in exercising that freedom seems like a very odd object for a general criminal sanction.

162  Malcolm Thorburn Finally, all of this means that the idea of exploitation plays an absolutely central role in the wrong of human trafficking, for it is the purpose of exploitation that is the criterion by which we distinguish illegal human trafficking from benign efforts assisting someone to get to work.12 In the early nineteenth century, when much of the world’s concern was focused on the trafficking in slaves, the nature of the trafficker’s illicit purpose was quite clear.13 If he meant to bring persons to a market (of which there were many)14 where they would be sold as chattel slaves, then he was a slave trader and a criminal; if his purpose was to transport persons for some other reason (so that they could serve as paid employees or even – for most of the nineteenth century15 – as indentured labourers), then he was free to continue on his way. In general, it was easy to distinguish cases of chattel slavery from cases of free labour or indentured servitude. First, the two categories were quite distinct: chattel slavery was a well-defined status recognised by many legal systems. Second, those who were brought to market as chattel slaves could usually be identified by their place of origin: chattel slaves were brought from West Africa; indentured labourers and free labourers were brought from elsewhere.16 Today, however, the lines are not nearly so clear. Trafficked persons come from countries all over the world and they travel within those countries and to other countries all around the world. Further, the nature of the exploitation that renders human trafficking criminal is much less well defined than chattel slavery. As we shall see later in this chapter, there is no clear consensus across jurisdictions on what constitutes ‘exploitation’ for the purpose of distinguishing human trafficking from legal assistance to persons in getting to work. Unlike chattel slavery, exploitation is not something with a formally recognised legal structure. It need not involve any form of long-term relationship of domination or bondage; indeed, it need not even involve the violation of the victim’s will in any obvious sense. In many jurisdictions, it is enough simply to treat vulnerable persons (such as children or the disabled in England or foreigners generally in Germany) in ways that persons without such a vulnerability would likely not have agreed to. Once we couple such a broad and vague understanding of exploitation with highly inchoate forms of conduct directed at that end, the resulting offence starts to look suspect. It raises worries about the extension of the criminal law into areas where there is little or nothing worthy of criminal sanction.

12 See the chapters by van Kempen and Lestrade and by Viganò in this volume. 13 See the chapter by Farmer in this volume. 14 The institution of chattel slavery was abolished in virtually all jurisdictions long after the trafficking in slaves was criminalised. The slave trade was banned by Denmark in 1782, by England and the US in 1808, by the Netherlands in 1814, by Spain and Portugal in 1818, by France in 1826 and by Brazil in 1851. Under s 5 of the American Act Prohibiting Importation of Slaves, 2 Stat 426 (1808), it was a crime punishable by 10 years’ imprisonment to hold a person for the purpose of selling him or her into slavery. Similarly, the English Slave Trade Act 1807 prohibited the trade and made it punishable by the payment of a fine of £150. The institution of chattel slavery was still legal in many countries in the Americas, including the US, Brazil and much of the ­Caribbean. Chattel slavery was only abolished in most of Spanish America between 1824 and 1845, in the ­British Caribbean in 1833, in the French Caribbean in 1848, in the US in 1865 (13th Amendment), in Dutch Guyana (Surinam) in 1863 and in Brazil in 1888. 15 The transportation of Indians for indentured labour was briefly banned from 1839 to 1843. See H Tinker, A New System of Slavery: The Export of Indian Labour Overseas 1820–1920 (London, Oxford University Press, 1974). 16 The practice of indentured labour – a form of debt bondage – arose on a large scale upon the end of chattel slavery and continued for many years afterwards. It brought roughly 3.5 million Indians to the Caribbean and other European colonies for manual labour.

Supplying the Market for Human Exoploitation  163 This chapter proceeds as follows. In section II, I set out the structure of the offence of human trafficking as it is made out in the Palermo Protocol and in a number of criminal offences in Canada, England and Wales, and Germany. In my description of these offences, I focus on the status of human trafficking as a trafficking offence. I reject the suggestion (set out in the Palermo Protocol and followed in the German Penal Code) that it is of the essence of trafficking that it involves deception or coercion of the trafficked person by the trafficker. In section III, I focus on the idea of exploitation that is at the heart of every definition of human trafficking. I suggest that there is an important policy decision to be made in settling on an appropriate conception of exploitation here. If we choose to embrace a very wide notion of exploitation (and there are good law enforcement reasons to do so), then we must recognise that the offence must be treated as commensurately less serious; if we wish to maintain the seriousness of the offence and to justify the severity of punitive responses to human trafficking, then we must use a much narrower and more precise idea of exploitation than the one we find in the Palermo Protocol or in most contemporary human trafficking statutes. To illustrate this point, I consider the difference between the battle against the transatlantic slave trade (a welldefined struggle against a specific and serious moral evil) and the later concerns in the US White-Slave Traffic Act (the ‘Mann Act’)17 which focused on the considerably less welldefined evils of ‘debauchery or … any other immoral purpose’. Section IV concludes. II.  THE LAW ON HUMAN TRAFFICKING TODAY

In this section, I do not consider the great variety of human trafficking statutes around the world. Instead, I examine only the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter the Palermo Protocol)18 and the human trafficking legislation in three jurisdictions: Canada, England and Wales, and Germany. My purpose in considering them is not to provide a synoptic review of current legislation on human trafficking; rather, it is simply to provide some notable examples of how different jurisdictions have dealt with the issue, how some have stayed true to the account I put forward in this chapter and how (and why) others have strayed fairly significantly from it. I begin with the Palermo Protocol, which sets out the international framework for understanding the law on human trafficking. I then consider the law in England and Wales, Canada and Germany through the lens of a number of key questions about the structure of the offence. A.  The Palermo Protocol The Palermo Protocol is still quite new, having been adopted only in 2000. It is a protocol to the United Nations Convention against Transnational Organized Crime and it shows its roots in this set of concerns. In other words, even though human trafficking is 17 36 Stat 825a. 18 The ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ 2000, supplementing the United Nations Convention against Transnational Organized Crime.

164  Malcolm Thorburn often connected to a number of other offences directly concerned with the exploitation of human beings, which are often more serious, the Protocol does not deal directly with these more serious offences. The reason, it seems, is that many of these other offences are often of a purely domestic nature with little or no transnational or international dimension. And as a protocol to an international convention concerned with transnational organised crime, the Palermo Protocol is not concerned with matters of purely domestic significance, no matter how serious the offences in question. In this way, the law on human trafficking today follows a familiar pattern from the antislavery movement in the nineteenth century. At the beginning of the nineteenth century, chattel slavery was a legally recognised status in a great many jurisdictions, including the southern US, the Caribbean and South and Central America. Anti-slavery legislation in the UK and the US and then in a number of other countries did not concern itself with the core wrong of slavery in those jurisdictions. Instead, their focus was on the international trade in slaves from West Africa bound for the Americas. The slave trade was the focus of British and American efforts not because it was a greater evil than slavery itself, but (at least in part)19 because it was a matter of international concern that did not (at least not directly) run afoul of the jurisdiction of other sovereign nations.20 Article 3(a) of the Palermo Protocol defines human trafficking in three parts: ‘Trafficking in persons’ shall mean … 1. some act (‘the recruitment, transportation, transfer, harbouring or receipt of persons’) 2. carried out by some particular means (‘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’) 3. for a specific purpose (‘for the purpose of exploitation’).21

The Protocol adds two important points to this definition. First, notwithstanding the emphasis on prohibited means in point 2 above, the Protocol makes clear that human trafficking may be found even where the victim has consented to his or her ultimate exploitation: The consent of a victim of trafficking in persons to the intended exploitation set forth in … this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

Second, the Protocol defines exploitation in the following terms: Exploitation shall include, 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.

This definition of human trafficking has a number of features worth noting. First, it makes essential reference to the use of force, fraud or deception as a crucial element in 19 This is not the full explanation. Since chattel slavery continued to exist in the US and in the British Empire for many years after the prohibition of the slave trade, another part of the explanation also lies with a respect for the vested property rights of slave owners. 20 See n 8 above. 21 Only the text in quotation marks is from the Protocol itself. The rest of the text and emphasis here is my own, organising the Protocol’s text into three parts.

Supplying the Market for Human Exoploitation  165 the offence of human trafficking in the same way as the new German criminal legislation, putting it sharply at odds with the legislation in Canada and in England and Wales on this point. If we are to take seriously the status of human trafficking as a form of trafficking offence, then this essential reference to coercion or deception seems out of place. For the nature of any trafficking wrong is not that the particular person trafficked has been wronged (through coercion, deception etc), but merely that he or she has been brought to market in violation of a clear state policy to close down that market altogether. This point is quite obvious in the case of trafficking in firearms or narcotics, for the objects of trafficking are inanimate objects that cannot be coerced or deceived. But the same logic ought to apply to human trafficking as well. And this, as we shall see, is a point that both the Canadian and English legislation has borne in mind, but which the new German ­legislation (which follows the Palermo Protocol more closely on this point) does not. A moment’s reflection on the nature of trafficking offences confirms the suspicion that the Palermo Protocol’s requirement of coercion or deception is inappropriate. Of course, it is unusual for a person to choose a life of exploitation, but where a person is living in sufficiently dire circumstances, it is possible that he or she might choose to exchange freedom for some improvement in material circumstances.22 The Protocol partially recognises this fact with its insistence that ‘consent of a victim of trafficking in persons to the intended exploitation set forth in … this article shall be irrelevant’. But in a way, this only makes the provision even more strange. For if the trafficked person’s consent to his or her ultimate exploitation is irrelevant, why should it possibly matter whether or not he or she was initially tricked or coerced into association with the trafficker in the first place? The point of human trafficking legislation is to prohibit the trade in persons for exploitation as such. Although one might take the informed consent of the victims to the initial association into consideration for the purposes of mitigation in sentence, this should not alter the fact that human trafficking has taken place, for the point of the prohibition on human trafficking is to close down the market in exploited persons absolutely. And no private person – not even the exploited person himself or herself – has the power to change that prohibition. If all this is true, why would a trafficking statute – indeed, the central international instrument recognising human trafficking – make essential reference to deception or ­coercion in this way, which is so clearly at odds with the logic of trafficking as an offence? It seems that the Palermo Protocol belongs to an early wave of thinking about human trafficking that collected together a number of possible ways that victims might be harmed, rather than focusing squarely on the subsequent exploitation of trafficked persons as the core of the offence. In the popular imagination, human trafficking is often said to victimise the most vulnerable persons, so it follows this logic of victimisation to insist on some form of wrong against trafficked persons as an essential feature of the offence of human trafficking.23 Another reason (which we shall see more of below) is that this reference to coercion or deception serves to restrict the scope of an otherwise extremely broadly defined offence.



22 See

the chapters by Lernestedt, Matravers and van Kempen and Lestrade in this volume. the ‘ideal victim’, see the chapter by Haverkamp in this volume.

23 Concerning

166  Malcolm Thorburn This brings us to a second and a third feature of the Protocol’s definition of trafficking – features that serve not to narrow, but to broaden its scope. First, human trafficking is defined in the Protocol not in terms of the trafficker actually having brought persons to market for exploitation, but only in terms of his or her ulterior purpose of doing so. Since human trafficking is treated in most jurisdictions as a very serious offence punishable by some of the most serious penalties available, it might seem somewhat surprising to see a definition of the offence that requires neither the participation in the victimisation of any person nor even the actual violation of a prohibition on bringing persons to market for their exploitation. Under the Palermo Protocol definition, all that is required to prove the offence is to show that the accused took some quite minor action (‘recruitment, transportation, transfer, harbouring or receipt of persons’) with a certain purpose in mind. However, a moment’s reflection on the structure of possession offences with respect to narcotics and firearms reminds us that this highly inchoate form of offence is – for better or worse – a familiar feature of our legal landscape. A second way in which the Palermo Protocol’s definition is unusually wide is its very broad definition of exploitation. In contrast to the nineteenth-century laws banning the slave trade, the prohibition on human trafficking takes a wide and eclectic array of phenomena as its object. Under the Palermo Protocol, it is not only ‘slavery or practices similar to slavery’ that count as exploitation; indeed, it is not only forms of treatment that deny the victim’s will such as ‘forced labour or services’. The Protocol also includes within its definition of exploitation several forms of treatment to which the exploited person may have fully consented (such as ‘prostitution and other forms of sexual exploitation’ and ‘the removal of organs’). As we shall see below, the line between exploitation and perfectly legal but morally dubious market exchanges is extremely murky in many of these cases. B.  England and Wales In England and Wales, human trafficking is now dealt with comprehensively by the Modern Slavery Act.24 Like Canada’s Criminal Code and a number of other more recent human trafficking statutes, it does away with the Palermo Protocol’s focus on the use of deception or coercion by the trafficker towards trafficked persons. In this way, it endorses the analysis set out above that human trafficking (like other trafficking offences) is concerned with the mistreatment or deception of persons while in transit. Second, the Modern Slavery Act replaces the list of prohibited acts from the Palermo Protocol with a single general description of the sort of act with which it is concerned. Section 2(1) of the Act simply states that the action component of human trafficking is satisfied ‘if the person arranges or facilitates the travel of another person’. This leaves it open to

24 The Modern Slavery Act 2015 repeals and replaces offences of human trafficking arising under s 59A of the Sexual Offences Act 2003 (inserted by s 109 of the Protection of Freedoms Act 2012) and s 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004. The Act also repeals and replaces the offence of holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour ­arising under s 71 of the Coroners and Justice Act 2009.

Supplying the Market for Human Exoploitation  167 the courts to determine what acts might satisfy this definition. Although it is defined in terms of travel, it seems clear that one need not actually have moved the trafficked person from one place to another in order to have satisfied the action requirement; one can arrange another person’s travel without actually moving him or her from one place to another at all. However, what this language appears to foreclose is the possibility of preventing the trafficked person from moving, the better to bring him or her to market for exploitation. The Modern Slavery Act defines the offence of human trafficking very broadly in two of the same ways as does the Palermo Protocol. First, it follows the Protocol in defining human trafficking to include not only bringing a person to market for exploitation but also a variety of acts undertaken ‘with a view to [the trafficked person] being exploited’. So, the definition of human trafficking in the Modern Slavery Act is, as it is under the Palermo Protocol, akin to a possession offence: one need not actually have exploited the person; one need not have attempted to exploit or assisted in exploiting the person; one need not even have brought the person to market for exploitation in order to be guilty of human trafficking. One need only have done some minor act to facilitate a person’s travel ‘with a view to their being exploited’. In this way, the Modern Slavery Act follows the model of most modern trafficking statutes for firearms, narcotics and other prohibited items: mere possession with the intent to traffic is sufficient to constitute an offence. The second way in which the Modern Slavery Act defines human trafficking very broadly is its conception of what constitutes exploitation. Like the Palermo Protocol, the Modern Slavery Act does not restrict its definition of exploitation only to ‘slavery or practices similar to slavery’. It also includes a very broad definition of forced labour which includes situations where a person provides a service after having been ‘subjected to force, threats or deception’ or where a person chooses a child or a person who ‘is mentally or physically ill or disabled, or has a family relationship with a particular person’ to do a task on the grounds that he or she is a member of that class and where a person who was not a member of that class ‘would be likely to refuse to be used for that purpose’. This means that a parent who has his son work at his family-owned restaurant under conditions that a stranger would not accept appears to have engaged in exploitation under the Modern Slavery Act. In addition to these very broad exploitation provisions, the Modern Slavery Act also incorporates a wide variety of sexual offences including some (such as prostitution and the removal of organs) that can be carried out entirely with the informed consent of the trafficked person. C. Canada Canada’s definition of human trafficking in sections 279.01–279.04 of the Criminal Code of Canada25 is (at least on first inspection) considerably narrower than those set out in either the Palermo Protocol or the English Modern Slavery Act. However, there

25 This includes related provisions concerning material benefit from human trafficking, and withholding or destroying documents for the purpose of facilitating human trafficking.

168  Malcolm Thorburn is one way in which the Criminal Code’s definition is wider than the one set out in the Palermo Protocol. Like the Modern Slavery Act and a number of other recent human trafficking statutes, the Criminal Code of Canada dispenses with the requirement that the trafficker coerces or deceives the trafficked person. The gravamen of the offence, clearly, is whether the trafficker took steps toward bringing the trafficked person to market for his or her ultimate exploitation, and not whether he or she was also coerced or deceived en route. The definition of human trafficking under the Criminal Code of Canada is considerably narrower than it is under either the Palermo Protocol or the English Modern Slavery Act in a number of key respects. First, the Criminal Code requires a tighter connection between a person who facilitates another’s travel (or, as the Criminal Code puts it, who ‘recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person’) and that person’s ultimate exploitation. Whereas the Palermo Protocol requires only that such acts are ‘for the purpose of exploitation’ and the Modern Slavery Act requires only that it is ‘with a view to [the trafficked person] being exploited’, the Criminal Code, in an important but subtle change of statutory language, requires that such acts are ‘for the purpose of exploiting them or facilitating their exploitation’. That is, it appears that the Criminal Code requires a more direct purpose than either the Palermo Protocol or the Modern Slavery Act. It is not enough under the Criminal Code that one has the prospect of exploitation in view or even that one has the exploitation of the trafficked person in general as one’s purpose; one must have as one’s purpose either actually exploiting that person oneself or the concrete prospect of some specific person exploiting them whose efforts one might facilitate. A second respect in which the definition of human trafficking is narrower under the Criminal Code of Canada than under the Palermo Protocol or under the Modern Slavery Act is its insistence on a denial of the victim’s will. Section 279.04 of the Criminal Code makes clear that exploitation in the context of human trafficking must involve a form of coercion: (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

In other words, the Canadian law seems to insist rather heavily on the requirement of coercion – indeed, even coercion on the basis of a threat to the personal security of the victim or a person known to them – as a defining element in exploitation. The Modern Slavery Act’s inclusion of work done by relatives, by children or by the ill or the disabled that would probably not be undertaken by someone who was not in that category would not pass the Canadian test for exploitation. Further, the mere fact that the victim was engaged in prostitution would not constitute exploitation in Canada, even though it would under England’s Modern Slavery Act. Some threat to the victim’s security to induce him or her to engage in prostitution would be required. That said, the definition of exploitation in Canada is perhaps not quite as demanding as it might at first appear. This is because the requirement of a threat to security is

Supplying the Market for Human Exoploitation  169 ­ nderstood extremely broadly. In part, this is in virtue of the wording of section 297.04(2), u which includes the following considerations: (2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused (a) used or threatened to use force or another form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.

In part, however, it is also a function of Canadian case law that has come to accept a broad understanding of the victim’s safety as including not only his or her bodily security but also his or her ‘psychological and emotional safety’.26 As such, the Canadian requirement that exploitation must result from a threat to the safety of the victim becomes considerably weaker in light of these provisions and case law. There is one aspect of the offence of human trafficking that Canadian case law sets out much more clearly than does either the Palermo Protocol or the English Modern Slavery Act. This is the question of whether or not movement is of the essence of trafficking. The Palermo Protocol’s list of actions that can constitute trafficking might initially suggest that movement is an essential part of the offence, for they all seem to be concerned with travel in one way or another. The English Modern Slavery Act makes this link explicit, replacing the list of specific actions with a general description of the action requirement as any situation where one person ‘arranges or facilitates the travel of another person’. But this focus on movement is not the point of trafficking offences. If we are concerned with bringing an item to market, the need to bring it from one place to another depends entirely on where the market might be. Although it will usually require that we bring the item from the place where we obtained it to the place where we mean to make it available on the market, this need not be the case. It may be that the actions required are all concerned with preventing its movement. Indeed, in the case of victims of human trafficking, this is often the case. In the Canadian criminal jurisprudence, it is the element of control over the victim that is essential to the offence rather than any movement of the victim from place to place. For example, the Canadian Department of Justice’s ‘Information Sheet for Law Enforcement’ makes explicit the centrality of control and the merely incidental quality of movement as follows: ‘Victims need not have crossed the border into Canada. Trafficking may occur entirely within Canadian borders. No movement of victims is required. For example, harbouring or exercising control, direction or influence over them to exploit them or facilitate their exploitation is sufficient’ (emphasis added).27 Indeed, Canadian appellate courts have recognised that ‘the offence may be committed by actions which serve, to varying degrees, to limit the movements of a person for the purpose of exploiting them or facilitating their exploitation’ (emphasis added).28 That is, movement is

26 R v Gowing [1994] OJ No 2743, 4, quoted with approval by the British Columbia Court of Appeal in R v Goodwin, 1997 CanLII 3717 (BC CA). 27 Department of Justice Canada, ‘Information Sheet for Law Enforcement – Criminal Code Trafficking Offences’, www.justice.gc.ca/eng/rp-pr/cj-jp/tp/is-fr.html. 28 R v Urizar, 2013 QCCA 46, 110 WCB (2d) 722, 99 CR (6th) 370, para 75.

170  Malcolm Thorburn important as an indicator of control – whoever decides whether the trafficked person will or will not move is in control – but movement itself is not the concern. D. Germany The German law on human trafficking (Menschenhandel) is now much more closely in line with the Palermo Protocol, the English and the Canadian laws on the topic than it was before 2016.29 Until the major reform of human trafficking laws in Germany that took place at that time, the German law was very different in structure on the matter. In other words, until 2016, human trafficking was not defined in German law as a trafficking offence set out in terms of bringing s­ omeone to market for their exploitation; rather, it was defined primarily in terms of the actual exploitation of a particular victim, assistance in the actual exploitation of a particular victim (sections 232(2) and 233(2)) or an attempt to do so (section 233(a)). That is, the very idea of human trafficking as a trafficking offence (concerned not with the actual exploitation of identifiable victims, but with the violation of a state prohibition on supplying the market for persons to be exploited) was not at the core of the legal regime in Germany.30 Since 2016, however, the German law has moved much closer to the standard trafficking model. Indeed, of the three national statutes considered in this chapter, Germany cleaves most closely to the structure of the Palermo Protocol. The new section 232 of the German Penal Code, unlike the English or Canadian laws, shares the three-part structure of the Palermo Protocol, including its focus on a prohibited means. Like the Protocol, it requires an act (recruitment, transportation, transfer, harbouring or reception of a person) by a means (use of force, threats, fraud, abduction, abuse of a situation of personal or financial vulnerability or helplessness connected with the circumstance of residing in a foreign country) for a particular purpose (exploitation through prostitution or other sexual acts, services of any kind, begging or criminal activities). What is perhaps the most notable feature of the German law on human trafficking is its remarkably broad definition of exploitation. Although sections 232a, 232b and 233a set out specific instances of exploitation (involving forced prostitution; forced labour, including slavery and servitude; and exploitation of a person deprived of his or her liberty), section 233 defines exploitation of labour as an activity, obtained by the perpetrator for his or her personal gain, performed by the victim under working conditions that are in clear discrepancy to those of other workers performing the same or a similar activity. This is a remarkable provision, for it seems to make it a case of exploitation simply to subject foreign workers to clearly different working conditions from those to which domestic German workers are subject, regardless of the objective merits of those conditions. This seems to elide the important distinction between exploitation (which must concern either the denial of the victim’s freedom to choose or the objective merits of the conditions to which the victim is subject) and discrimination (which may concern the merely comparative matters raised in section 233). 29 Due to EU Directive 2011/36/EU: obligation to transpose. 30 The trafficking-focused provision – § 233a StGB – played only a secondary role in the pre-2016 Penal Code provisions.

Supplying the Market for Human Exoploitation  171 III.  THE NEBULOUS IDEA OF ‘EXPLOITATION’

In section II, I argued that the central formal feature of human trafficking is the fact that it is a trafficking offence. As such, it is not concerned with the actual exploitation of identifiable victims; instead, it is concerned only with violations of a general prohibition on bringing certain items (in this case, persons destined to be exploited) to market. In this section, I focus on what I take to be the main substantive consideration in the law of human trafficking: the idea of exploitation.31 Although it is a topos in contemporary discussions of human trafficking to insist that it is concerned with ‘modern slavery’,32 this parallel is in fact rather suspect. For although some of the prohibitions on the nineteenthcentury slave trade shared some of the formal features of the modern law of human trafficking (focusing on the trade rather than on the ultimate wrong), they differed significantly in terms of the normative concern to which they were directed.33 Specifically, the nineteenth-century anti-slave trade movement was focused on a well-defined phenomenon given a distinct legal form in the legal regimes of receiving states: viz, chattel slavery. By contrast, ‘exploitation’ is a comparatively loose and ill-defined concept that varies significantly in its meaning from one place to the other; it is also very difficult to pin down precisely what any given definition might mean. In this way, the contemporary discussion concerning human trafficking has a good deal more in common with the later nineteenth and early twentieth-century concern with so-called ‘white slavery’ (which focused on a congeries of different, loosely defined social ills) than it does with the earlier fight against chattel slavery. A.  The Early Nineteenth-Century Prohibition on the Slave Trade In 1807, 27 years before slavery was finally abolished in the British Empire, the British Parliament outlawed the international slave trade in the aptly named Abolition of the Slave Trade Act. In the years that followed, Britain took it upon itself to patrol the seas of West Africa to pre-empt the African slave trade and to punish those who continued to engage in it. The Royal Navy established the West Africa Squadron in 1808 to enforce its prohibition on the slave trade. Over the course of the nineteenth century, the West Africa Squadron of the Royal Navy grew from a mere two ships in 1808 to 25 ships operated by roughly 3,000 sailors in 1845.34 It is estimated to have captured roughly 10 per cent of all slave ships in the Atlantic, seizing approximately 1,600 slave ships and freeing roughly 150,000 Africans.35 In addition to seizing the slave ships and freeing those captured aboard, the West Africa Squadron also brought those in charge before courts created for

31 See the chapter by Bergelson in this volume. 32 The English human trafficking statute makes this link in its choice of name (Modern Slavery Act). President Barack Obama made this link explicit in his Presidential Proclamation of the National Slavery and Human Trafficking Prevention Month 2015, referring to ‘modern-day slavery: the cruel, inhumane practice of human trafficking’. See the chapter by Viganò in this volume. 33 See the chapter by Farmer in this volume. 34 C Lloyd, The Navy and the Slave Trade (New York, Routledge, 1968). 35 ibid.

172  Malcolm Thorburn the purpose of trying such cases.36 The British slave trade was suppressed fairly rapidly. As French, Spanish and Portuguese slave traders took their place, they became the targets of the Royal Navy’s West Africa Squadron, making this an effort not only to deal with English slave traders, but also to end the West African slave trade as such.37 The British (and later American)38 efforts to suppress the African slave trade in the Atlantic bear some similarities to the modern movement to suppress human trafficking. In both cases, national governments committed to ending an international trade in human beings destined for exploitation quite independent of any efforts to prohibit that exploitation itself. And in both cases, the focus of their efforts were not on the exploitation that the transported persons would face at their destination, but rather on those who made it their business to bring such people to market so that they might be exploited upon arrival. In both cases, it is the offence concerned with trafficking rather than the actual exploitation of victims that was the target of the criminal laws. But that is where the parallels end. In the case of the African slave trade, the evil with which the trafficking prohibitions were concerned was one that was relatively clear and easily identifiable, for several reasons. First, Africans transported across the Atlantic to slavery were generally transported in ships used only for that purpose. By contrast, modern human traffickers use a wide variety of means to transport (or to detain) trafficked persons, from shipping containers and trucks to commercial airlines, automobiles and trains. Whereas the modern victims of human trafficking might be mixed in with other passengers in aircraft, trains and the like,39 Africans destined for slavery were usually transported in dedicated ships. Second, Africans destined for chattel slavery in the Americas were also identifiable by their place of origin. Whereas the nineteenth-century chattel slavery trade dealt specifically in persons from West Africa, the modern human trafficking market concerns persons from virtually all countries of the world. But the greatest difference between the nineteenth-century slave trade and the modern human trafficking market is the fact that the form of exploitation to which slaves were destined was a clearly defined, formally recognised legal status of slavery. Although the prohibition on the slave trade was briefly extended to cover the trade in indentured labour, the focus in the nineteenth century was quite narrowly on the institution of chattel slavery. By contrast, the modern practice of human trafficking concerns a wide variety of possible treatments at the destination, from slavery and practices similar to slavery to forced labour, prostitution and other forms of sexual exploitation, organ removal and work by foreigners (in Germany) or family members (in England and

36 T Helfman, ‘The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade’ (2006) 115 Yale Law Journal 1122. 37 In later years, the Royal Navy’s West Africa Squadron moved to address the traffic in slaves from ­Eastern Africa through the Indian Ocean. The pursuance of the East Africa slave trade was one motivation for the ­British to sign the Heligoland-Zanzibar Treaty of 1890 with Germany in which Britain gained control of ­Zanzibar (today, a semi-autonomous region of Tanzania off the east coast of Africa), while giving up control of Heligoland (an archipelago which remains a part of Germany today). 38 Under s 5 of the American Act Prohibiting Importation of Slaves, 2 Stat 426 (1808), it was a crime ­punishable by 10 years’ imprisonment to hold a person for the purpose of selling him or her into slavery. The American and British governments agreed to work together to fight the Atlantic slave trade in the Webster-Ashburton Treaty of 1842 (this was 20 years before the abolition of chattel slavery in the US). See Lloyd, The Navy and the Slave Trade (1968). 39 Concerning mixed migration, see the chapters by Pirjatanniemi and Herlin-Karnell in this volume.

Supplying the Market for Human Exoploitation  173 Wales) under working conditions that clearly differ from those of other workers or that others would likely reject. These differences between the nineteenth-century prohibition of the slave trade and the modern prohibition of human trafficking raise problems of two sorts. First, because we are concerned with forms of conduct that are quite remote from the actual exploitation of specific individuals, the lack of clarity on the specific form of treatment they might face renders the charge all the more obscure. If we were concerned with offences that concerned the actual exploitation of specific individuals, then we might be able to distinguish between cases that merited serious criminal sanction from those that did not simply by attending closely to the facts of the particular case. Although the definition of ‘exploitation’ in the Palermo Protocol and in a number of domestic criminal statutes is quite vague and over-broad, at least some of these problems might be dealt with by examining what had actually been done to the particular victim in all of its particularity to determine whether it merits the label of ‘exploitation’. But in the case of human trafficking, we are concerned (at least in principle) with conduct that is very far removed from the actual exploitation of any specific victims. Instead, exploitation is relevant to the law of human trafficking only as it concerns the accused’s purpose. And this means that we must speculate as to what the purported trafficker’s purposes were in order to determine his or her guilt or innocence. Where the question is (as it was in the nineteenth century) whether or not he or she was transporting people to be sold as slaves, this could often be answered quite clearly. Where the question is whether the accused assisted in the transportation of a person with some form of exploitation in mind, this is simply an invitation to speculation. As we are invited to speculate about the accused’s purposes, a second problem arises that is peculiar to human trafficking (and was not shared by the nineteenth-century prohibition on the slave trade). That is the fact that there are so many different forms of exploitation countenanced by the Palermo Protocol and the domestic human trafficking laws of most countries. As a result, even if we can be quite confident that the accused had some form of exploitation in mind (and is therefore guilty of some form of the crime of human trafficking), there remains the problem of distinguishing between the many different forms of human trafficking that vary significantly in terms of their seriousness. Those who mean to bring persons to slavery surely deserve more serious censure and punishment than do those who mean only to bring foreign workers to work under markedly different conditions from domestic workers (in Germany) or who mean to bring family members to engage in work that non-family members would likely not choose to do (in England and Wales) etc. Human trafficking, far from being a single offence akin to trafficking in slaves, appears to be a whole class of offences dealing with the movement of persons for a wide variety of nefarious purposes, some of which deserve to be categorised as akin to slave trading, but many of which simply do not. B.  The Movement to End ‘White Slavery’ The most similar historical antecedent to the modern effort to eradicate human trafficking is not the early nineteenth-century effort to end the West African trade in chattel slaves, but rather the late nineteenth and early twentieth-century efforts to ­

174  Malcolm Thorburn e­ radicate what was then referred to as the ‘white slave trade’. Joel Quirk puts the point in the following terms: Human trafficking has tended to be approached as a distinctively modern problem, which can be primarily traced to increasing inequalities, post-Cold War dislocations, demographic strain, the rise of informal labour markets and neoliberal economics, and growing migratory pressures in an area of tightening immigration controls. This diagnosis undoubtedly captures some of the key issues involved, but it can also end up expunging a much larger story, in which modern problems represent the latest phase in enduring campaigns against trafficking and forced prostitution. These campaigns fall under the rubric of the ‘white slave trade’.40

In 1910, the US Congress passed, and President William Howard Taft signed into law, the White-Slave Traffic Act (often referred to as the ‘Mann Act’ after its sponsor, Representative James Robert Mann). At the time, it was lauded as one of the great achievements of the so-called ‘progressive era’ in American history.41 The Mann Act made it a felony to transport in interstate or foreign commerce ‘any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose’. Further, in parallel to the focus on transportation in contemporary human trafficking statutes, it also criminalised the ‘procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto’ for the transportation of any woman for debauchery or any other immoral purpose. The Mann Act explicitly took as its model the nineteenth-century prohibitions on the trade in West African chattel slaves, so it is not surprising to find that offences under the Mann Act take on the same highly inchoate form as those under the earlier Act Prohibiting Importation of Slaves. What is crucially different in the Mann Act – and what it shares with contemporary statutes prohibiting human trafficking – is the broad and nebulous definition of the sort of treatment that the victims of such trafficking might face at their destination. In the case of the slave trade, the treatment was clear: it was to be sold into chattel slavery as that was defined in the laws of the relevant jurisdiction. In the case of ‘white slavery’, by contrast, it concerns the ill-defined notions of ‘debauchery’ and ‘other immoral purposes’. The US Supreme Court found that the Mann Act applied not only to the transportation of persons for prostitution, but also for extra-marital liaisons42 and polygamous marriage43 and ‘acts which might ultimately lead to that phase of debauchery which consisted in “sexual actions”’.44 Contemporary human trafficking statutes, which define otherwise benign conduct as serious criminal offences when accompanied by the purpose of exploitation, raise the concern that they will be used as the Mann Act was: to brand as serious criminals individuals whom we believe to have purposes of which we disapprove. For unlike chattel slavery, exploitation is not something with a formally recognised legal structure. It involves a wide variety of phenomena, from some of the most serious wrongs imaginable, such as

40 J Quirk, The Anti-slavery Project: from the Slave Trade to Human Trafficking (Philadelphia, University of Pennsylvania Press, 2011) 217–18. 41 An act to further regulate interstate and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls, and for other purposes, Sixty-First Congress, Session II, ch 395 (1910). It has since been amended many times. 42 Caminetti v United States, 242 US 470 (1917). 43 Cleveland v United States, 329 US 14 (1946). 44 Athanasaw and Sampson v United States, 227 US 326 (1913) 332.

Supplying the Market for Human Exoploitation  175 slavery,45 to conduct which many might not consider wrongful at all, such as employing family members to do work under conditions that non-family members would likely not accept.46 Second, the concept of exploitation as it is used in many contemporary human trafficking statutes involves forms of treatment that vary enormously in terms of their structure. Some (such as slavery and practices similar to slavery) involve a longterm relationship of domination; others involve as little as a single transaction that is contrary to the will of the exploited person (forced labour, forced prostitution, etc); and yet others (rather in the style of the Mann Act) simply involve voluntary forms of association of which others disapprove (such as organ harvesting and prostitution). As Francesco Viganò has also pointed out in his chapter in this volume, this understanding of exploitation is simply too broad and too eclectic to provide a unifying criterion by which to distinguish cases of human trafficking from non-criminal conduct. IV. CONCLUSION

A legislator’s job, when considering new criminal prohibitions, is to identify troubling phenomena in the world and, where appropriate, to craft prohibitions that may reduce their incidence by deterring potential wrongdoers and empowering officials to take preemptive action against them. It is altogether appropriate for legislators to craft new criminal prohibitions to address the many wrongs associated with human trafficking. And in the case of human trafficking, there is a case to be made for the wide and loose language in which this offence is usually defined. In many cases, it might not be clear precisely what sort of harsh treatment awaits the persons being handled by human traffickers. Is it modern slavery? Forced labour? Exploitative labour? Organ removal? It might not be possible for prosecutors to prove any one of these specific purposes to the exclusion of the others, even in cases where it seems clear that we are dealing with a person who is a crucial part of the broader human trafficking phenomenon. So, there may be very good law enforcement reasons to define the offence as broadly as this; to do otherwise might be to allow a great number of wrongdoers to go free simply because we cannot be sure which illicit purposes they had in mind at the time. However, sympathetic as we might be to the plight of law-makers, it is the task of criminal law scholars to examine the prohibitions they create and to make plain precisely what they do and do not accomplish. In the case of the human trafficking laws that have been enacted in the wake of the Palermo Protocol, it is perhaps surprising how little progress seems to have been made on that front so far. Some of the most basic questions about the offence still seem not to have come to light. Although the offence is clearly a trafficking offence, which is concerned with conduct that violates a general prohibition against bringing persons to market for exploitation, commentators continue to talk of the offence as though it necessarily involves the victimisation of trafficked persons. What is more, the structure of the offence both under the Palermo Protocol and the German Penal Code makes essential reference to the coercion or deception of trafficked persons, thereby undermining its basic structure as a trafficking offence.

45 Abraham 46 Modern

Lincoln, letter to Albert Hodges, 4 April 1864: ‘If slavery is not wrong, nothing is wrong.’ Slavery Act, s 3(6).

176  Malcolm Thorburn However, the core worry that human trafficking prohibitions raise concerns their remarkable combination of a highly inchoate formal structure to the offence (concerned with something like possession of persons with the intention to bring them to market where they may be made available to others who may, in turn, subject them to exploitation) coupled with a highly indeterminate, eclectic and in some cases troublingly moralised understanding of the gravamen of the offence: exploitation. Putting these formal and substantive features of the offence together, we are left with the prospect of labelling a good deal of fairly minor and in some cases even benign conduct as instances of one of the most serious criminal offences on the books today. The principle of fair labelling, which requires that offences of different degrees of seriousness are labelled differently, and the principle of proportionality in sentencing are both threatened by this state of affairs. What is more, by unduly broadening the definition of human trafficking, we risk diluting the seriousness with which we treat the worst cases. REFERENCES

Dubber, M, The Police Power: Patriarchy and the Foundations of American Government (New York, Columbia University Press, 2005). Farmer, L, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford, Oxford University Press, 2016). Foucault, M, Securité, Territoire, Population: Cours au Collège de France 1977–1978 (Paris, EHESS Gallimard Seuil, 2004). Government of Canada, National Action Plan to Combat Human Trafficking (Her Majesty the Queen in Right of Canada, 2012). Helfman, T, ‘The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade’ (2006) 115 Yale Law Journal 1122. Lloyd, C, The Navy and the Slave Trade (New York, Routledge, 1968). Quirk, J, The Anti-slavery Project: from the Slave Trade to Human Trafficking (Philadelphia, University of Pennsylvania Press, 2011). Tinker, H, A New System of Slavery: The Export of Indian Labour Overseas 1820–1920 (Oxford, Oxford University Press, 1974).

10 The Wrong(s) in Human Trafficking MATT MATRAVERS*

T

rafficking in human beings is ‘news’. Indeed, for the British Prime Minister Theresa May, it and its related evils represent ‘the great human rights issue of our time’.1 The argument of this chapter is that in many instances, the focus on ­trafficking threatens to distract from more serious issues. These include the issue of what is done to those trafficked, but also the conditions in which both trafficked and ‘ordinary’ workers work. To anticipate part of the conclusion of the argument, many of the harms suffered by trafficked persons are harms endemic to the labour markets in which they work. These markets are not the products of traffickers or of international organised crime, but of political choices made by governments (and, by extension, voters). To remedy these wrongs requires investment not in the policing of human trafficking, but in the strengthening of employment regulations and in the resources available to those who enforce them. The focus throughout is on the UK, but many of the arguments will apply to other jurisdictions. The chapter proceeds by examining three cases in which employees are treated badly, only one of which is a case of trafficking. It then looks at the wrongs done to those trafficked and the wrongs of exploitation. However, to put these in the correct context, the chapter begins by asking the following question: what is the distinctive wrong(s) in trafficking? I. TRAFFICKING

The project of identifying the distinct wrong in human trafficking might seem misguided for at least two reasons: first, the answer might be thought to be obvious; and, second, within any given jurisdiction in which human trafficking is criminalised, a doctrinal examination of the relevant statute ought to enable one simply to ‘read off’ the wrong(s) from the offence description. For reasons that will become clear as the argument progresses, I do not think the wrong(s) in many forms of human trafficking are at all obvious. However, it is worth pausing to explain the non-doctrinal approach taken below. * I am grateful to the editors of this volume and to all the participants in the project workshops for comments on earlier drafts. I am also enormously grateful to Kirsty McCartney for research assistance on some of the legal issues raised. 1 T May, ‘My Government Will Lead the Way in Defeating Modern Slavery’ The Telegraph (30 July 2016), www.telegraph.co.uk/news/2016/07/30/we-will-lead-the-way-in-defeating-modern-slavery.

178  Matt Matravers It is, of course, naïve to think that a close examination of a given statute will invariably reveal the wrong(s) to which it is addressed. Many criminal offences are poorly constructed and even well-constructed ones do not necessarily point unambiguously to the mischief that the offence is meant to prohibit. However, there is another reason for approaching the issue as I intend. This is that normative and critical enquiry should not take existing offences for granted. I want to ask not ‘what does the law say?’, but ‘what are the wrong(s) of human trafficking that would occur absent criminalisation?’.2 Consider as an example of this methodological approach the wrong(s), if any, involved in the buying and selling of sex between consenting (non-trafficked) adults. There are a number of ways in which such wrong(s) might be characterised. A moralist of a certain sort might argue that sex is a human good of a kind that ought not to be commodified. On this account, both the supplier and the purchaser of sex do wrong, and this may provide a reason for the state to prohibit the trade. A libertarian might argue that there is no wrong as long as both parties freely consent, so there ought to be no restriction on the trade, although there ought to be prohibitions of coercion etc to ensure free consent. A public policy specialist might argue that the existence of the trade creates negative externalities – the coercion of women into prostitution, costs to the neighbourhood in which it takes place etc – and that the most efficient way to regulate these is to criminalise the purchase of sex. Reasonable people disagree about the wrongs involved in the sale and purchase of sex and, as a result, about how the state ought to respond (for example, there is a split in the current debate between those who favour the so-called ‘Nordic model’ in which the purchaser is criminalised and those who favour a model of decriminalisation and market regulation).3 Thus, if one were to ask the question ‘what are the wrongs of the selling and buying of sex that would occur absent criminalisation?’, there would be no agreed answer. It might be thought that this is where the ‘obviousness’ objection bites. The permissibility of the buying and selling of sex between consenting adults may be subject to reasonable disagreement, but surely not human trafficking? In order to show that things are not so simple, the chapter now introduces three cases (only the first of which is an example of human trafficking). The first and third are real, while the second is fictional. II.  THREE CASES

A.  Edvinas and Edgarus Subatkis Lithuanian twins Edvinas and Edgarus Subatkis were lured from Lithuania to England in 2013 by their fellow nationals, Linus Ratautas and Konstantin Sasmurin.4 The twins

2 A different way to put this is in terms of ‘fair labelling’. That is, in a given instance of trafficking, what would be the wrong that needs to be captured by the criminal conviction? 3 ML Skilbrei and C Holmström, Prostitution Policy in the Nordic Region: Ambiguous Sympathies (Farnham, Ashgate, 2013). 4 The details of this case are taken from www.norfolk.police.uk/news/latest-news/men-jailed-trafficking.

The Wrong(s) in Human Trafficking  179 had a history of trouble with the Lithuanian authorities, so the offer of work in the UK represented a fresh start. They were promised good jobs, housing and that their essential needs would be met. They agreed to pay an £800 fee for transport and employment. The twins were described as ‘vulnerable’; Edvinas has learning disabilities and Edgarus is of limited education. In England, Ratautas went with them to recruitment firms. He helped them fill in registration forms, adding his own bank details so that payment for the work the S­ ubatkis brothers undertook was deposited directly into his bank account. Over a ­four-month period, the twins worked for (respectable) grocery-related supply chain providers, at Norbert Dentressangle’s pea processing plant in Lowestoft and at the 2 Sisters Food Group in Flixton, Suffolk (both supply many leading British supermarkets). Ratautas and Sasmurin gave the twins just £20 over the four-month period they worked and a small amount of food each week. The rest of the monies the twins had earned Ratautas and Sasmurin claimed was to pay back what they owed. When the twins were discovered, they were wearing the clothes in which they had made their journey to Britain. They had also lost weight since leaving Lithuania (about 15 kg (2 st 4 lbs) in the case of Edvinas). The twins said they had been repeatedly threatened with violence and it had been hinted that such violence might extend to their family back in Lithuania if they were to tell anyone about their conditions or try to get out of their ‘agreement’. Ratautas and Sasmurin were jailed for three and a half years, having pleaded guilty to offences of trafficking and money laundering. They were also given the first ever slavery and trafficking prevention order (STPO) relating to labour exploitation in the UK. B.  Lukas and Saulius Imagine two other Lithuanian twins, Lukas and Saulius. In Lithuania, they are offered work in England as fruit pickers by a recruitment agency. It is explained to them that the work will be for a ‘season’ of four months based in Kent, England. Pay will be at the UK National Minimum Wage (NMW). Lukas and Saulius will be liable for the cost of transport to the UK and for a fixed-term, non-refundable let on accommodation. These costs will be deducted from their wages, although should either of them terminate the agreement, they will be able to do so on payment of the appropriate amounts. The recruitment agency describes the work and accommodation and in doing so underplays the monotony and graft in the former and exaggerates the features on offer in the latter. On arrival in England, Lukas and Saulius find the work harder, and the accommodation, like life in England, less glamorous than they anticipated. They are a long way from anywhere and are without transport. The farmer whose fruit they pick sells them basic goods such as cigarettes, which he buys at a distant superstore and sells on at a significant mark-up. They also discover that like many workers in England, they are on ‘zero-hours’ contracts so that should the weather be bad and the fruit picking stop, they are not paid for the day. This time is theirs in the sense that they are not required to go to work, but there is nowhere to go and no means to get anywhere, so they spend these days in their accommodation playing cards. As a result, their weekly income is much less than they anticipated – although they are paid at the agreed rate when they work – and as a result they pay off less of their debt each week.

180  Matt Matravers After a fortnight, Lukas would very much like to give up the job and return to ­ ithuania, but he has no money to settle the remainder of his transport costs or of his L rent. There are no other employment opportunities in the area. De facto, he has little choice but to continue to work and to see out the season. C.  Sports Direct In 2015, The Guardian newspaper revealed conditions in a vast warehouse owned and operated by Sports Direct (a successful UK high street and internet company that manufactures and sells sports and leisure clothes).5 The majority of people working in the warehouse were agency workers (many from Eastern Europe). The warehouse is in one of the poorer areas of England. In any case, as one worker told the reporter, ‘people won’t leave because they don’t think they will find anything else. Most of the Polish people who work there don’t speak a word of English’.6 Inside the warehouse, it was alleged that over the course of their nine-hour shifts, workers would walk almost 20 miles as they picked products off the shelves. As they did so, a Tannoy system would sometimes pick them out by name if they did not move quickly enough. Clocking on (not necessarily arriving) even one minute late led to a deduction of 15 minutes’ pay. Six infringements of company policy – for example, ‘excessive/long toilet breaks’, ‘time wasting’, ‘excessive chatting’, ‘wearing any one of 802 banned varieties of clothing brand’ and ‘using a mobile phone in the warehouse’ – in six months would lead to dismissal. In return for this, workers were meant to be paid at the NMW, albeit that it was alleged that some were paid through a pre-paid card for which they were charged £10; a £10-a-month management fee; 75p to use it at an ATM machine; and 10p when they got a text message confirming they had used it. However, a compulsory daily search at the end of the day was unpaid. As this search could last in excess of 15 minutes, the workers’ pay over the course of the week fell below the NMW. III.  WHAT WRONGS?

In the case of the Subatkis twins, any possible charges will, of course, depend on the details, but at least prima facie Ratautas and Sasmurin appear to have stolen from the twins (contrary to section 1 of the Theft Act 1968) and possibly to have committed fraud by abuse of position (contrary to section 4 of the Fraud Act 2006). Ratautas and Sasmurin also threatened the twins and thus might be guilty of assault and/or of making a threat to kill (under section 39 of the Criminal Justice Act 1988 and section 16 of the Offences Against the Person Act 1861, respectively). More broadly, the twins are wronged by having been deceived and by having been accommodated in conditions not fit for human 5 S Goodley and J Ashby, ‘A Day at “the Gulag”: What it’s Like to Work at Sports Direct’s Warehouse’ The Guardian (9 December 2015), www.theguardian.com/business/2015/dec/09/sports-direct-warehouse-workconditions. 6 ibid.

The Wrong(s) in Human Trafficking  181 habitation. It is worth noting, though, that the twins were not held hostage; they visited their neighbours, not least to borrow money for food. The Sports Direct case is less clear, other than in one respect. There is both a contractual right to be paid minimum wage and a criminal sanction if this does not happen as a result of refusal or wilful neglect.7 Sports Direct effectively paid workers less than the NMW because they were held back for security searches. This was admitted by the founder and majority shareholder in the company, Mike Ashley, who is one of Britain’s wealthiest men.8 The Sports Direct and Lukas and Saulius cases share a great deal in common. What happens to Lukas and Saulius, and the conditions of those who work in the Sports Direct warehouse, might be unpleasant, but it is not unlawful (assuming that the employment practices do not violate employment law). Some of what distinguishes these cases from that of the Subatkis twins is that the latter might have been subject to other, independent wrongs (such as theft and assault). Yet, Ratautas and Sasmurin were charged under trafficking legislation and, thus, it is that aspect of the case and its relation to the details of the other two that should draw our attention. IV. TRAFFICKING

What, then, is the offence of trafficking? Its contemporary form in England is provided by the Modern Slavery Act 2015 (MSA).9 As its name suggests, the MSA is ostensibly concerned with slavery, servitude, forced or compulsory labour. However, it quickly moves into trafficking. As is argued below, this is hardly surprising. The wrong of t­rafficking makes little sense independent of the wrongs that happen to those trafficked. As the details matter, it is worth quoting the relevant sections: § 2 Human trafficking (1) A person commits an offence if the person arranges or facilitates the travel of another person (‘V’) with a view to V being exploited. (2) It is irrelevant whether V consents to the travel (whether V is an adult or a child). (3) A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V. (4) A person arranges or facilitates V’s travel with a view to V being exploited only if— a. b.

the person intends to exploit V (in any part of the world) during or after the travel, or the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel.

7 National Minimum Wage Act 1988, ss 17 and 31. See, S Honeyball, Honeyball & Bowers’ Textbook on Employment Law, 14th edn (Oxford, Oxford University Press, 2016) 338. 8 As the House of Commons Business, Innovation and Skills Committee put it in its report (House of Commons Business, Innovation and Skills Committee, Employment Practices at Sports Direct, 2016–2017, HC 219 (London, House of Commons, 2016) para 38): ‘Mr Ashley put on record, for the first time, that workers had been paid below the minimum wage, as a result of the unpaid, compulsory searching of all workers at the Shirebrook warehouse.’ 9 Ratautas’ and Sasmurin’s offences were committed in 2013 and so were covered by earlier legislation (although their Slavery and Trafficking Prevention Orders were a creature of the 2015 Act). As this is not a doctrinal chapter or a case note, I am going to discuss them as if they were covered by the MSA (for the purposes of the argument, the case can be regarded as fictional).

182  Matt Matravers (5) ‘Travel’ means— a. b. c.

arriving in, or entering, any country, departing from any country, travelling within any country.

It is worth noting three things: first, although the MSA mentions force, threats and vulnerability in the definition of ‘exploitation’ (see below), the trafficking section lacks the emphasis on ‘means’ found in many jurisdictions and in the Palermo Protocol;10 second, it is possible to traffic a person within a country; and, third, the moral ‘heavy lifting’ is done by the concept of exploitation. There is nothing wrong with arranging or facilitating the travel of another person in itself – travel agents and university administrators do this all the time – so whatever the fundamental issue is, it relates to the intention or knowledge of the trafficker and to what happens to trafficked persons, that is, to their exploitation. That an otherwise benign action – arranging or facilitating the travel of another person – can be transformed into something criminal by an accompanying mental state is not unique to trafficking. For example, to enter a building is benign, but to do so with the intent to steal, commit grievous bodily harm or do unlawful damage is the crime of burglary.11 Nevertheless, it is interesting that, perhaps contrary to the popular imagination and to ordinary language, the core of the trafficking offence lies in exploitation and not at all in transport across borders or in any significant way in transport at all. That said, such an account fits with the story of the Subatkis twins. The wrongs done to them are made possible by their having travelled from Lithuania to England, but that fact seems orthogonal to what is done to them. Ratautas and Sasmurin clearly had the intention to exploit them, and that intention is clearly wrongful, but it is what they do once the twins have arrived that is so horrifying. If we assume that the agencies that recruited Lukas and Saulias and those supplying agency workers to Sports Direct knew or ought to have had knowledge of the conditions in which they would work, then their status as ‘ordinary businesses’ rather than as ‘human traffickers’ rests on those conditions not being exploitative. It is thus to the concept of exploitation that we need to turn. V. EXPLOITATION

Exploitation is an extraordinarily difficult concept to define. It has an ordinary common-sense meaning as, roughly, ‘to take unfair advantage’, but it has so far evaded

10 Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines ­Trafficking in Persons 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 or achieve the consent of a person having control over another person, for the purpose of exploitation’. 11 Theft Act 1968, s 9(1)(a). The same is true of some possession offences, where possession of a benign object is transformed by the intent to use it for criminal purposes.

The Wrong(s) in Human Trafficking  183 precise analysis.12 This section first discusses the meaning as given in the MSA and the application of that to the discussion above. It then turns to a more expansive understanding of the concept. Section 3 of the MSA specifies the meaning of exploitation as follows: (1) For the purposes of section 2 [on trafficking, quoted above] a person is exploited only if one or more of the following subsections apply in relation to the person. Slavery, servitude and forced or compulsory labour (2) The person is the victim of behaviour— a. b.

which involves the commission of an offence under section 1, or which would involve the commission of an offence under that section if it took place in England and Wales.13

Sexual exploitation (3) Something is done to or in respect of the person— a.

which involves the commission of an offence under— i. ii.

section 1(1)(a) of the Protection of Children Act 1978 (indecent photographs of children), or Part 1 of the Sexual Offences Act 2003 (sexual offences), as it has effect in England and Wales, or

b.

which would involve the commission of such an offence if it were done in England and Wales. Removal of organs etc (4) The person is encouraged, required or expected to do anything— a.

b.

which involves the commission, by him or her or another person, of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial d ­ ealings in organs and restrictions on use of live donors) as it has effect in England and Wales, or which would involve the commission of such an offence, by him or her or another person, if it were done in England and Wales.

Securing services etc by force, threats or deception (5) The person is subjected to force, threats or deception designed to induce him or her— a. b. c.

to provide services of any kind, to provide another person with benefits of any kind, or to enable another person to acquire benefits of any kind.

12 For a discussion of some of the issues from a variety of perspectives, see M Deveaux and V Panitch, ­Exploitation: From Practice to Theory (London, Rowman & Littlefield International, 2017); MR Reiff, Exploitation and Economic Justice in the Liberal Capitalist State (Oxford, Oxford University Press, 2013); A Wertheimer, Exploitation (Princeton, Princeton University Press, 1996); M Zwolinski and A Wertheimer, ‘Exploitation’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (https://plato.stanford.edu). 13 Section 1 of the MSA refers to slavery, servitude, and forced labour: ‘A person commits an offence if— (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.’

184  Matt Matravers Securing services etc from children and vulnerable persons (6) Another person uses or attempts to use the person for a purpose within paragraph (a), (b) or (c) of subsection (5), having chosen him or her for that purpose on the grounds that— a. b.

he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose.

The MSA thus defines exploitation extremely narrowly. To be exploited is to be the victim or subject of an independently defined offence – for example, enslavement, servitude, forced or compulsory labour, a sexual offence, obtaining services dishonestly, selling one’s organs and so on. Had Ratautas and Sasmurin committed their offences after 2015, they could be said to have trafficked the Subatkis twins, having arranged the twins’ travel with the intention of exploiting them under section 3(2), (5) and possibly (6) above. By contrast, Lukas and Saulius are not trafficked because what happens to them as fruit pickers is not exploitation as defined above. The same applies to those who work in the Sports Direct warehouse, even though at least some of them are victims of a criminal offence (being paid less than the NMW) because that offence is not specified in the meaning of exploitation given above. However, two issues now arise around the narrowness of this account of exploitation: first, if exploitation is unpacked in terms of some other offence, then what is added by reference to it and, by extension, by the offence of trafficking?; and, second, is there a broader account of exploitation that could be deployed to capture some independent wrong and thus to save the idea from redundancy? VI.  TRAFFICKING AND POLICING

As described above, the creation of the offence of trafficking by the MSA in 2015 looks like an example of ‘over-criminalisation’ as a result of the creation of an ‘overlapping’ offence (something that recriminalises conduct).14 Consider, for example, the wrongs identified by Mrs May in her newspaper article celebrating the MSA coming into effect: people ‘duped, forced into hard labour, and then locked up and abused’; children who are ‘raped, beaten and passed from abuser to abuser for profit’ or are ‘made to pick-pocket on the streets and steal from cash machines’ or ‘held as domestic slaves’; ‘innocent individuals … tricked into prostitution’; and finally ‘one woman I met [who] had come to England as a student but was forced into prostitution, imprisoned in a house in south London and regularly abused, including being threatened at gunpoint. When she finally escaped to north London, she was picked up by another gang that systematically exploited her and raped many others in a squalid high-street brothel’.15 These are, as May describes them, ‘sickening and inhuman crimes’, but that is also what they are: they are crimes (in which other parties can be complicit). It would be odd



14 D Husak, Overcriminalization: The Limits of 15 May

(n 1).

the Criminal Law (Oxford, Oxford University Press 2008) 36.

The Wrong(s) in Human Trafficking  185 to think that the significant characterisation of an imprisoned woman who is repeatedly raped is that she is ‘exploited’.16 Of course, that is not to say that it is not in large part because these people are vulnerable and powerless that these wrongs can be done to them and that they do not (feel that they) have the protections afforded to the rest of us. Their vulnerability makes them liable to others who would take unfair advantage of them (that is, exploit them), but in these cases it is not the exploitation that is salient, but the crimes done to them. Criminalisation, though, is not only about punishment; it also enables police investigation and other forms of regulation. Arguably, it is this that best explains the purpose of trafficking legislation. Thus, the Slavery and Trafficking Prevention Orders introduced in the MLA were described by Mrs May in the same article as creating ‘a vital policing tool to stop anyone convicted of trafficking from travelling to a country where they are known to have exploited vulnerable people in the past’. Moreover, the MLA as a whole, she argued, was aimed at ‘pernicious gangs who operate across borders and jurisdictions’ as part of ‘a radically new, comprehensive approach to defeating this vile and systematic international business model at its source and in transit’ that will ‘never be stopped if our police, borders and immigration agencies work in domestic silos’.17 The criminalisation of trafficking in the MSA, then, is perhaps best understood not as targeting a distinct wrong that would otherwise escape regulation, but as empowering the police and other agencies to investigate and disrupt supply chains that may reach across borders and into the realms of organised crime. Nevertheless, whatever policing or immigration reasons there might be for additionally describing in the language of ‘trafficking’ what has happened to, for example, those described by Mrs May, that label should not obscure the substantive wrongs that have been done to them. So far, this chapter has tried to give an account of the crime of trafficking in England. In criminalising arranging or facilitating travel for the purposes of exploitation, the offence focuses on a wrong of exploitation that is in turn unpacked in terms of other offences. In so doing, it perhaps enables the investigation, and disruption, of supply chains. However, the narrow understanding of exploitation risks mischaracterising the wrong done in some cases and missing entirely the independent iniquity of taking unfair advantage (exploitation as broadly understood) in others. Having discussed the former, the chapter now turns to the latter by returning to the examples of Lukas and Saulius and Sports Direct. VII.  CRIME OR CAPITALISM?

One of the perplexing features of exploitation is that relations of exploitation can both be entered into voluntarily and mutually beneficial. To see this, consider what might be thought of as a paradigm case of exploitation: ‘someone who charges a hiker lost in the desert $1,000 for a bottle of water’.18 It should be noted that although this is a



16 For

discussion of this issue, see Wertheimer, Exploitation (1996) 15 f. (n 1). 18 Zwolinski and Wertheimer, Exploitation (2016). 17 May

186  Matt Matravers s­ ituation of exploitation, it involves both consent and mutual advantage. As Zwolinski and Wertheimer point out, ‘both parties emerge better off relative to how they would have been, had the transaction not taken place’.19 In the cases considered above, if one strips away the independent wrongs of theft etc done to the Subatkis twins, and had Sports Direct paid its employees for the 15 minutes in which they were searched, then each becomes an instance of a market transaction celebrated in the economics of comparative advantage (countries with plentiful and cheap labour specialise in the provision of that labour, and countries with an advantage in technology etc specialise in providing that). The line between ‘trafficking’ and ‘recruitment’ is thus very thin. This is not to underplay any independent harms done to those trafficked, but these are not best captured in the language of exploitation, but rather in what Zwolinski and Wertheimer call a ‘rich set of … narrowly tailored terms’20 such as defrauded, kidnapped, enslaved and raped. Of course, whether one thinks of Lukas, Saulius and those who work at Sports Direct as similarly situated to the hiker – and even if so, whether one thinks of them and the hiker as exploited – depends in part on one’s overall view of markets (and, perhaps, of global justice) and in part on one’s understanding of exploitation. These are deep, controversial and have proved to be philosophically intractable problems.21 Wherever one stands on these issues, they seem at some remove from the concerns that motivate the crime of trafficking. Compare, for example, the maiden voyage of a new ocean liner and the situation of an impoverished migrant wishing to cross the Mediterranean from Africa to Europe. In both cases, there is a monopoly supplier: there is, by definition, only one maiden voyage and (it is assumed) there is only one gang prepared to make the voyage across the Mediterranean. The supplier can thus charge far in excess of the norm for a sea trip of the length involved. A libertarian of a certain sort might argue that the cases are analogous and that the supplier does nothing wrong in ‘exploiting’ his market position (although of course the gang may do an independent wrong of smuggling). Others might argue that the migrant’s choice is not fully voluntary and/or that the background conditions of global injustice mean that only the offer to the migrant is exploitative. These kinds of examples and arguments can be replicated ad nauseam. They are not uninteresting – indeed, exploitation, like blackmail (with which it shares certain properties), provides one of the most compelling of philosophical puzzles22 – but they seem to miss the point when it comes to the issues that compel our attention in the cases with which we are concerned. What matters in those cases, once the independent wrongs are

19 It is worth noting that Zwolinski and Wertheimer think that the example shows that ‘exploitation is importantly different from coercion’, which is something that seems to me to be if not lost, then obscured in the legal discussion of trafficking. 20 Zwolinski and Wertheimer (n 12). 21 One reason for this is that the issue hinges on two related questions: first, is the transaction truly voluntary or does the inequality in bargaining power vitiate consent?; and, second, is the correct measure of whether the parties are better off relative to their actual starting points or ought it to be relative to some idealised baseline in which each party has what he or she ought? On these questions, see Wertheimer (n 12); and Zwolinski and Wertheimer (n 12). 22 M Berman, ‘Blackmail’ in J Deigh and D Dolinko (eds), The Oxford Handbook of Philosophy of Criminal Law (Oxford, Oxford University Press, 2011) 37–106.

The Wrong(s) in Human Trafficking  187 stripped away, are the conditions in which those who work find themselves (just as what compels our attention in the migrant case – once we sideline questions of global justice – are the safety of the boat, the treatment of the passengers, their conditions on arrival and so on). Moving the focus from the language of trafficking to that of the conditions of work23 allows us to capture the relevant features of the labouring conditions of the Subatkis twins, Lukas and Saulius, and those who work for Sports Direct (although, of course, it is important to remember that such a move will not capture other wrongs such as child labour and forced prostitution). Consider, for example, the list compiled by the Joseph Rowntree Foundation (JRF) of ‘forced labour practices’, which ‘are the acts done to a worker by an employer or employment agent that are exploitative and, if severe enough and/or numerous enough, may constitute forced labour’. Building on the work of the International Labour Organization, the JRF identified the following: • Upfront fees/debt bondage: many workers paid fees to agents, either for travel to the UK or for job arrangements. This often led to indebtedness that created a bond with exploitative work or tied the worker to accommodation. This was found to be a common practice despite the fact that charging for finding or trying to find work is not permitted in the UK. • Threats and bullying: this was often linked to racism experienced by migrant workers or differential treatment compared to British workers. • Disciplining through dismissal: the research found three main forms – to avoid paying workers’ wages, to punish workers for refusing to work overtime, and when workers became ill or pregnant. • Productivity targets and surveillance: this includes constant monitoring or imposing unrealistic production targets. • Overwork: this indicator applied especially to agriculture workers in the peak of the season and to Chinese workers in the catering sector where work intensity prevented them from developing any meaningful life outside work. • Non-/under-payment of wages: some discrepancy in pay was found in the majority of cases of labour exploitation. Migrants were often unable to get the pay that they were owed or were promised to be paid later, and pay day was constantly postponed. • Deduction/charges: migrants were commonly charged for job arrangement services or were subject to deductions for equipment, clothing and so on. Non-payment of these charges would result in the worker being denied work. • Tie-ins (work authorisation): since a work permit is de facto tied to a particular employer (because of the requirement of an employer sponsor), it is difficult for a worker to change job. The misbalance of power between employer and worker can lead to abuse. • Tie-ins (accommodation): exploitative work is often linked to sub-standard accommodation that comes with the job, whereby the worker has no choice of



23 See

also the chapter by van Kempen and Lestrade in this volume.

188  Matt Matravers accommodation and the housing provided is over-crowded, of poor quality and overpriced. Refusal of the provided accommodation can lead to losing one’s job. • Tie-ins (money): some employers kept workers’ pay for ‘safekeeping’, but denied the workers regular access to their money, purposefully creating a situation of dependency.24 Forced labour is a crime under the MSA, but as the JRF report makes clear, it ‘lies at the end of a continuum between decent work (being the optimum) and forced labour (being the most severe form of labour exploitation)’.25 Lukas and Saulius and those who work for Sports Direct are not at the extreme end of the continuum, but their vulnerability combined with the circumstances in which they find themselves leave them open to several of the abuses listed above. The point is not to deny that human trafficking is a problem; to be trafficked is to be delivered into a situation of vulnerability that makes abuse possible. Rather, the point is that a focus on trafficking threatens to distract attention from serious problems with labour markets generally. Vulnerability in employment is not confined to those who are trafficked, but is an increasing feature of economies such as those of the UK and the US. Uber and Sports Direct may be the most visible examples, but behind them are legions of firms in packing, processing and so on that thrive in a deregulated environment in which enforcement of what regulations there are is rare and access to employment tribunals is prohibitively expensive.26 VIII.  TRAFFICKING AND IMMIGRATION

In addition to the risk that the language of, and focus on, trafficking may distract from exploitative (in the broad sense) labour conditions (as well as other substantive wrongs), there is a risk that the association of trafficking with immigration will both contribute further to the hidden nature of such conditions and make the position of those who do endure them, and are from abroad, even worse. The association of trafficking and (im)migration is not only a phenomenon of political speech (note the quotations from Theresa May above). The first two bullet points identifying the purposes of the Immigration Act of 2016 are to ‘introduce new sanctions on illegal workers and rogue employers’ and ‘provide better co-ordination of regulators that enforce workers’ rights’. However, the accompanying ‘factsheet’ offers the following in explaining this focus: The UK has a strong legal framework in place to ensure that minimum standards are met for workers. There are three main public bodies responsible for enforcing these requirements: a team in HMRC which enforces the National Minimum Wage; the Gangmasters Licensing Authority; and the Employment Agency Standards Inspectorate (‘the enforcement bodies’). 24 K Skrivankova, Forced Labour in the United Kingdom (York, Joseph Rowntree Foundation, 2014) 3–4. 25 Skrivankova, Forced Labour in the United Kingdom (2014) 2. 26 ‘The UK has just 0.9 labour inspectors per 100,000 members of the workforce compared with 4.6 in Ireland, 5.1 in the Netherlands, 12.5 in Belgium and 18.9 in France’ (ibid 3). In 2013, the government introduced s­ ignificant fees for those wishing to take their case to an Employment Tribunal, which according to some ­estimates has led to a near-70 per cent reduction in such cases.

The Wrong(s) in Human Trafficking  189 However, because of an increase in organised criminal gangs engaging in labour market exploitation, we believe that exploitation is occurring that none of the enforcement bodies was designed to deal with without adjustments to their powers and the way they work. This kind of worker exploitation often appears to involve migrant workers.27

There are at least two reasons to worry about the ways in which the UK government – in common with others – runs together issues of immigration, trafficking, ‘organised criminal gangs’ and the regulation of labour markets. The first is that it associates poor labour conditions with ‘extraordinary’ and criminal behaviour that happens to ‘others’. A typical middle-class white English shopper buying a chicken ready meal from Marks & Spencer need not think about how it was produced because surely (or so he or she might think) there are no organised criminal gangs supplying a reputable and impeccably middle-class store like M&S. Yet, poultry and egg processing are areas rife with poor labour practices.28 Some of these practices will be illegal, but many will pass the test of legality yet nevertheless be an ‘affront to respect and dignity’.29 Migrant labourers, including those who have been trafficked in the legal sense, will make up some of those who suffer from these practices, but so will British agency and other workers. Citizens Advice Bureau research estimates that ‘4.5m employees are in some form of insecure work in England and Wales. Of these, 2.3 million people work variable shift patterns, 1.1 million work on temporary contracts, and 800,000 are on zero hours or agency contracts’.30 Whether one thinks of (some subset of) such people as ‘exploited’ depends on wider issues, but poor pay, appalling working conditions and income insecurity are not in the main the result of immigration – still less of trafficking – and it should not be implied, even by association, that they are. Rather, they are the result of deliberate political decisions for which as citizens and consumers, we should all take responsibility. The second danger in running together the regulation of labour markets and of immigration is that it makes it less likely that the most vulnerable victims of labour exploitation – undocumented or illegal migrants – will come forward.31 For this reason, the International Labour Organization’s Labour Inspection Convention of 1947 specifies that any duties other than those of inspection required of labour inspectors ‘shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers’.32 As the charity Focus on Labour Exploitation puts

27 Home Office, Immigration Act 2016: Factsheet – Labour Market Enforcement (Sections 1–33), www.gov. uk/government/uploads/system/uploads/attachment_data/file/537203/Immigration_Act-_Part_1_-_Labour_ Market_Enforcement.pdf, 2. 28 Equality and Human Rights Commission (EaHR), Inquiry into Recruitment and Employment in the Meat and Poultry Processing Sector: Report of the Findings and Recommendations (Manchester, EaHR, 2010). 29 ibid 1. 30 Citizens Advice Bureau, The Importance of Income Security, www.citizensadvice.org.uk/Global/­ CitizensAdvice/welfare%20publications/The%20Importance%20of%20Income%20Security%20(Final).pdf. 31 See, the chapter by Herlin-Karnell in this volume on the dangers of the use of administrative detention of illegal migrants, given the potential consequences of human rights violations. 32 International Labour Organization, Labour Inspection Convention, 1947.

190  Matt Matravers it when recommending a clear separation of labour market and immigration regulatory regimes: Confusion between immigration control and labour inspection is one of the biggest barriers to the identification of labour exploitation. Not only are potential victims fearful of coming forward but inspectors fail to spot indicators of modern slavery. In order to ensure the UK meets its international obligations to identify trafficking there must be a strict firewall between immigration control and labour inspection.33

Yet, far from this being the case, the Home Office Factsheet states that the new Director of Labour Market Enforcement will ‘work closely with immigration enforcement wherever labour market breaches are linked to migrants who do not have permission to live or work in the UK’ – a confusion of exactly the kind identified above.34 IX. CONCLUSION

To traffic someone is to do something wrongful. The wrong is in the purpose or intent that the person is exploited. It is not immediately clear whether trafficking, like exploitation, is always also harmful (in the sense of setting back an important interest). An argument could be made that the negative externalities of trafficking mean that it is, but it is not the case that any given particular trafficked person is necessarily harmed. If the baseline for one party is sufficiently bad, then exploitation, as we have seen, can sometimes be mutually beneficial. The purpose of the chapter has been to argue that the language of trafficking and exploitation risks distracting attention from three issues. The first of these is the profound wrongs and harms that can befall those who are trafficked. However, these are not best captured in the language of exploitation – or, indeed, in the language of being a ‘victim of trafficking’, but in the language of the wrongs and crimes that they are (theft, rape, assault and so on). Where exploitation matters is in the imbalance of power between the victimisers and the victims that renders the latter vulnerable. Second, as the JRF report put it (see the quote given above), labour practices lie on ‘a continuum between decent work … and forced labour’. To imply that poor labour conditions are exceptional and that those who suffer from them are migrants who are the victims of international criminal gangs is not only to mislead, but also to distract from the fact that these conditions are the norm in many industries as a result of political choices about both standards and the resources available for the enforcement of those standards. Third, to the degree that migrants (both legal and illegal) are, or feel, vulnerable, to link the regulation and enforcement of labour standards with matters of immigration will only make their position worse. There are good reasons to pursue those who enable wrongs to be done to vulnerable people by intentionally transporting such people with the intent that they be exploited

33 C Robinson, Focus on Labour Exploitation: Tackling Exploitation in the Labour Market Consultation (London, Focus on Labour Exploitation, 2016) 14. 34 Home Office, Immigration Act 2016: Factsheet (2016) 3.

The Wrong(s) in Human Trafficking  191 (that is, traffickers). However, the idea that human trafficking should be the main focus or that it constitutes ‘the great human rights issue of our time’ is implausible.35 In the main, what matters is what happens to those who are trafficked. In the case of ‘independent’ wrongs, the focus should be on preventing those wrongs and, where that fails, on prosecuting those who commit them. In the case of the wrong of ‘exploitation’, the focus should be on empowering those who are relatively powerless so as to render them less vulnerable. With respect to trafficked migrants, this may mean ensuring that there is a ‘firewall’ between those who respond to their needs and those who investigate their immigration status. However, such people are only a tiny subset of the vulnerable in our societies. Thus, the focus should be on ensuring that the state’s employment rights and practices are improved and extended to everyone whatever their status, and that these rights are known and enforceable. These are not issues of trafficking, but that is the point. REFERENCES

Berman, M, ‘Blackmail’ in J Deigh and D Dolinko (eds), The Oxford Handbook of Philosophy of Criminal Law (Oxford, Oxford University Press, 2011) 37–106. Dempsey, MM, ‘Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism’ (2010) 158 University of Pennsylvania Law Review 1729. Deveaux, M and Panitch, V, Exploitation: From Practice to Theory (London, Rowman & Littlefield International, 2017). Equality and Human Rights Commission (EaHR), Inquiry into Recruitment and Employment in the Meat and Poultry Processing Sector: Report of the Findings and Recommendations (Manchester, EaHR, 2010). Honeyball, S, Honeyball & Bowers’ Textbook on Employment Law, 14th edn (Oxford, Oxford University Press, 2016). House of Commons Business, Innovation and Skills Committee, Employment Practices at Sports Direct, 2016–2017, HC 219 (London, House of Commons, 2016). Husak, D, Overcriminalization: The Limits of the Criminal Law (Oxford, Oxford University Press 2008). Reiff, MR, Exploitation and Economic Justice in the Liberal Capitalist State (Oxford, Oxford University Press, 2013). Robinson, C, Focus on Labour Exploitation: Tackling Exploitation in the Labour Market Consultation (London, Focus on Labour Exploitation, 2016). Skilbrei, ML and Holmström, C, Prostitution Policy in the Nordic Region: Ambiguous Sympathies (Farnham, Ashgate, 2013). Skrivankova, K, Forced Labour in the United Kingdom (York, Joseph Rowntree Foundation, 2014). Wertheimer, A, Exploitation (Princeton, Princeton University Press, 1996).



35 May

(n 1).

192 

11 Vulnerability, Exploitation and Choice VERA BERGELSON

I. INTRODUCTION

T

he past two decades have seen significant legal developments in combatting human trafficking. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,1 supplementing the United Nations ­Convention against Transnational Organised Crime,2 was a major international accomplishment and the first global legally binding instrument with an agreed definition of trafficking in persons.3 The Trafficking Protocol, which has been adopted by the majority of states, requires the states parties to develop national legislation criminalising conduct constituting intentional commission, attempt to commit, participation in the commission of and organising or directing other persons to commit human trafficking.4 This requirement has raised a number of political and legal challenges as the meaning of ‘trafficking’ is not yet firmly established.5 An analytical paper issued by the United Nations Office on Drugs and Crime (UNODC) explains: There is a tension between those who support a conservative or even restrictive interpretation of the concept of trafficking and those who advocate for its expansion: between understandable efforts to expand the concept of trafficking to include most, if not all forms of severe exploitation; and the practical challenge of setting priorities and establishing clear legal boundaries, particularly for criminal justice agencies involved in investigation and prosecution of ­trafficking-related crimes. The Protocol’s complex and fluid definition provides ammunition for both sides and has contributed to ensuring that such tensions remain unresolved.6

1 United Nations – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319 (hereinafter the Trafficking Protocol). 2 United Nations – Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209. 3 www.unodc.org/unodc/en/treaties/CTOC/index.html. 4 Trafficking Protocol (n 1) art 5, paras 1 and 2. 5 UNODC, Abuse of a Position of Vulnerability and Other ‘Means’ within the Definition of Trafficking in Persons (New York, United Nations, 2013) 8 (hereinafter UNODC APOV Paper). 6 ibid.

194  Vera Bergelson Establishing proper boundaries of a crime is a doctrinal, ethical and political challenge as much as it is practical. A criminal prohibition is the ultimate form of state interference with individual liberties of its citizens; thus, it must be justified by the state as a public wrong of such magnitude that threatens the wellbeing and security of society at large, and may not be prevented by less restrictive means. Paul Roberts aptly observed: At the first stage, the advocate of any particular criminal prohibition needs to supply a good reason, not just for generalized state interference in the lives of individuals, but for that special form of state regulation represented by criminal sanctions: that is, hard treatment (with serious implications for personal autonomy) administered through procedures specially designed to communicate the sting of blame or ‘censure’.7

This observation fully applies to human trafficking. As the UNODC Paper acknowledges: ‘Criminals involved in a practice that is identified as “trafficking” are likely to be subject to a different and typically harsher legal regime than would be applicable if that identification had not been made.’8 Moreover, human trafficking is not just a regulatory offence which, arguably, does not carry much stigma – it is a malum in se crime conviction which involves moral condemnation of both the act and the actor. Finally, the political and public attention to what is commonly called ‘modern-day slavery’ makes the offence of trafficking stand out as particularly egregious. In addition to those considerations, it is important to keep in mind that trafficking is a relatively new offence that has been superimposed on well-developed national penal laws by an international political document.9 In order for this new offence to become integrated and operational as a new tool of criminal justice, it is paramount that it is consistent with the basic national penal doctrines and that it satisfies the same requirements of legality, culpability and proportionality as other national offences of its magnitude. There are therefore compelling reasons to treat this offence cautiously, challenge its proper scope and boundaries, and insist on clarity and precision in defining the punishable conduct. This chapter focuses on one of the crucial modules of human trafficking: abuse of a position of vulnerability (APOV). My goal is to explore the meaning of this module in combination with other elements of human trafficking and determine whether sufficient moral grounds exist for including this provision in the definition of the crime.

7 P Roberts, ‘Philosophy, Feinberg, Codification, and Consent: A Progress Report on English Experiences of Criminal Law Reform’ (2001) 5 Buffalo Criminal Law Review 173, 217. 8 UNODC, The Role of ‘Consent’ in the Trafficking in Persons Protocol (Vienna, United Nations, 2014) (hereinafter UNODC Consent Paper) 15. ‘Sanctions should fulfill at least the threshold set for trafficking in persons to constitute a serious crime as defined in the Convention, that is, punishable by a maximum deprivation of liberty of at least four years or a more serious penalty (article 2 (b) of the Convention)’; UNODC, Model Law against Trafficking in Persons (Vienna, United Nations, 2009) ch 5, art 8(1). The UNODC Model Law against Trafficking was developed by the UNODC to assist states in implementing the provisions contained in the Trafficking Protocol (ibid). 9 Only a few countries passed anti-trafficking legislation prior to the Trafficking Protocol. Among those are the following: China – Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Abduct and Traffic in or Kidnap Women or Children (promulgated by the Standing Committee on Sept 4, 1991); Hungary Penal Code, art 175/B (1999); Cuban Penal Code, art 316.1 (1999); Criminal Code of Lithuania, arts 147, 157 (2000); US, Victims of Trafficking and Violence Protection Act of 2000, Pub L No 106-386 (2000).

Vulnerability, Exploitation and Choice  195 II.  ELEMENTS OF HUMAN TRAFFICKING

The Trafficking Protocol defines ‘trafficking in persons’ as a combination of three distinct elements: 1) the action of trafficking, which includes the recruitment, transportation, transfer, harbouring or receipt of persons; 2) the means of trafficking, which includes the threat of or use of force, abduction, deception, coercion, abuse of power or position of vulnerability; and 3) the purpose of trafficking, which is exploitation. In the words of Article 3 of the Trafficking Protocol, ‘exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs’.10 Unless each of the three elements is established, the act does not qualify as ‘human trafficking’ under the international law and the national laws modelled after the Trafficking Protocol.11 The following examples illustrate this point – it is not human trafficking if: (a) the perpetrator, without employing a trafficking ‘action’, uses violence or deception to force an unwilling victim into sexual exploitation; (b) the perpetrator does not employ any ‘means’ to transport a victim for the purpose of sexual exploitation; or (c) the perpetrator uses violence or deception to transport an unwilling victim for any purposes other than ‘exploitation’.

III.  THE MORAL AND LEGAL SIGNIFICANCE OF THE ELEMENTS OF HUMAN TRAFFICKING

Even though all three elements are equally required, they carry unequal moral weight. Determining the moral significance of an element in a particular offence is not always easy. I suggest that in order to achieve this goal, we examine whether the element per se can support a prohibitory norm. If it cannot, we should proceed with examining other elements of the definition until we find such that make the otherwise morally neutral conduct objectionable.12 We need to do that so as to identify the core evil of the offence and formulate an appropriate conduct rule that we want to convey to the community. Naturally, we do not want to prohibit useful or morally neutral activities. What we want to prohibit is engaging in those activities in such a way that would make them wrongful. 10 Trafficking Protocol (n 1) art 3. 11 The only exception is when the victim is a child; in those cases, it is not necessary to prove that the action was accomplished through the use of any of the listed ‘means’; UNODC (n 5) 1. It is worth noting that some national trafficking laws do not explicitly list the ‘means’ requirement. See, eg, Canadian Criminal Code (RSC 1985, c C-46, as amended), ss 297.01–297.04. 12 Admittedly, there are offences which do not include elements that are wrongful per se. Blackmail is an example of such an offence. Independently, a demand for a benefit and a threat of revealing certain ­information are morally neutral; what makes the conduct objectionable is the combination of these two elements. Such offences are extremely rare and uncharacteristic – hence the rich academic literature about the ‘blackmail paradox’.

196  Vera Bergelson A. Action From that perspective, the ‘action’ element is morally neutral. To test that, let us ask: what conduct rule do we want to establish – do not recruit people? Do not transport or shelter them? This would clearly be silly. There is nothing criminal or immoral in recruiting, transporting or sheltering people. Those acts become objectionable only under certain circumstances.13 For example, an act of cross-border transportation may be entirely permissible when carried out by a Californian resident returning home from a Mexican holiday and giving a ride to a fellow Californian. That same act would be impermissible if the driver transported his passenger against the passenger’s will. In those circumstances, the involuntary character of transporting would make the driver’s act morally and legally wrong. One could certainly argue that the meaning of an act is not reducible to its basic physical form (transporting, recruiting etc); instead, the meaning of an act is governed by its context. Jonathan Herring writes: The raising of a finger at a person has multiple meanings, depending on its context. It will be appreciated as an insult, a vote or a greeting, depending on its social significance. Such an act can be described simply in mechanical terms (the lifting of a finger), but such a description is one only used by the most erudite of philosophers. In normal life an act gains its meaning from its context and surrounding circumstances.14

Under this logic, the meaning of recruiting, transporting, or harbouring desperate refugees for the purpose of exploitation would be fundamentally different from the meaning of recruiting, transporting or harbouring volunteers for the purpose of facilitating their work with the Habitat for Humanity. This interpretation is intuitively appealing, but conceptually flawed and unproductive. This interpretation is conceptually flawed because it effectively replaces the meaning of an act with the meaning of its context. The meaning of an act, however, has an independent significance as it determines whether the element is a part of the definition of an offence or an affirmative defence. That difference, in turn, determines the defendant’s chances of being acquitted or convicted: for example, if non-consent is a part of the definition of an offence (like in the case of rape or theft), the burden of establishing this element is on the prosecution and the mere presence of consent destroys the prosecutor’s case.15 Much more is required for a successful defence of consent (like in the case of assault or battery). Not only does the burden of production shift to the defence, but the mere presence of consent does not eliminate the defendant’s fault. At a minimum, the defendant must be aware of that consent and, as I have argued elsewhere, must also act with the purpose of achieving a better outcome overall.16 The distinct substantive and procedural requirements stem from the different meanings of the act in the cases of rape or theft, on the one hand, and assault or battery, on the 13 In contrast, hurting or killing intrinsically violates a prohibitory norm; in order to lose its wrongful ­character, this act requires a defence of justification. 14 J Herring, ‘Mistaken Sex [2005] Crim LR 511, 514 (footnotes omitted). 15 V Bergelson, ‘Consent to Harm’ in F Miller and A Wertheimer (eds), The Ethics of Consent: Theory and Practice (Oxford, Oxford University Press, 2009) (footnotes omitted). 16 V Bergelson, ‘The Right to Be Hurt: Testing the Boundaries of Consent’ (2007) 75 George Washington Law Review 165.

Vulnerability, Exploitation and Choice  197 other. In the former cases, the act itself is morally neutral (having sex, taking the property of another), whereas in the latter it is morally regrettable (causing physical harm or pain to another). An intrinsically regrettable act is a sufficient reason for a prohibitory conduct rule, whereas an intrinsically neutral act requires additional elements that, together with the act, bring about the criminally prohibited state of events. This distinction explains why, in cases of assault and battery, consent may play only an exculpatory role, whereas the role of non-consent in cases of rape or theft is inculpatory. It is thus conceptually inaccurate to use extrinsic circumstances for the moral evaluation of the intrinsic quality of an act. Herring’s approach is also unproductive because it does not achieve its goal, namely, producing a fully contextualised account of an act. For example, how would we characterise an act of trafficking when the trafficker is driven primarily by reasons of personal enrichment, but is also sincerely sympathetic to the plight of the traffickees fleeing from a civil war in their country of origin? What if we add more information to this account: perhaps the trafficker invests his trafficking proceeds in a local business which employs people who otherwise would not be able to find a job? But what if this business badly pollutes the environment? And so on and so on. Inevitably, we will have to stop at some point, and thus inevitably our account will neither be full nor accurate. In fact, it would be much more misleading because, unlike the simple mechanical description of an act, this account would create a false impression of comprehensiveness and objectivity. Finally, a fully contextualised account of an act makes it virtually impossible to send a coherent message to the community as to what conduct is legally acceptable and what is not. For all those reasons, I reject the view that, without full specification of an act, it is impossible to determine its moral value. For the purposes of the definition of ‘human trafficking’, the meaning of ‘action’ is morally neutral. B. Means The second element, ‘means’, lists conditions that are violative of the traffickee’s autonomy and self-determination. Some of these conditions nearly always make an ‘action’ morally objectionable and criminal. The use of force, the threat of use of force, and abduction are among those conditions: a person who has been abducted, physically overpowered or forced to acquiesce to trafficking by a threat of immediate violence cannot be said to have exercised free choice, and it is fair to say that this person’s autonomy has been violated. Even aside from the crime of trafficking, a perpetrator who employs such ‘means’ to compel a person to do something which, in the absence of those ‘means’, would be morally neutral – move to a certain location, engage in a sexual act or give up property – is guilty of a serious felony (kidnapping, rape or robbery). A perpetrator who uses such ‘means’ would certainly be on notice that he is committing a morally ­objectionable act which is likely to be criminal. Other ‘means’ are less obviously criminal and require further inquiry as to their effect on the victim’s autonomy. Coercion and deception fit into this category. Before concluding that those ‘means’ are sufficiently wrongful and violative of the victim’s autonomy, we need to ask more questions. For example, was the victim of trafficking deceived about

198  Vera Bergelson the very nature of the job to which he gave apparent consent or did the deception involve only collateral matters? Compare the following scenarios: (a) Mary was promised and voluntarily accepted a job as an exotic dancer at a n ­ ightclub abroad. However, when she arrived at the destination, she was told that her job would also involve sexual services. Had she known the truth, she would have never agreed to the deal. (b) Mary was promised and voluntarily accepted a job as an exotic dancer at a nightclub abroad with the understanding that she would also provide sexual services to regular customers. However, when she arrived at the destination, she was told that, before she received any remuneration, she would have to pay back a substantial ‘trafficking fee’. Had she known the truth, she would have never agreed to the deal. The first kind of deception, fraud in the factum, vitiates Mary’s apparent consent to ‘trafficking’ and makes the trafficker’s actions criminal. The second kind, fraud in the inducement,17 may result in the trafficker’s breach of his agreement with Mary and may give Mary grounds for a civil claim against the trafficker, but it is unlikely to turn Mary’s recruitment or delivery to the brothel a trafficking crime. At least, this should be the outcome if the trafficking law is consistent with national criminal laws that draw the line between fraud in the factum and fraud in the inducement, particularly in cases of rape and theft.18 In cases of coercion, before deciding the effect of coercion on the traffickee’s autonomy, we may need to confront questions about: • the legitimacy of the threat (eg, legal versus illegal, ‘I will teach your son gambling’ versus ‘I will kill your dog’); • the importance of the threatened interest (‘I will destroy your reputation’ versus ‘I won’t invite you to my parties anymore’); • the importance of the traffickee’s interest that would be set back by the traffickee’s submission to coercion (sexual integrity in the case of coerced prostitution versus financial loss in the case of a reluctant acceptance of a lower than agreed level of remuneration); and • the magnitude of the setback to that interest (the nearly complete loss of liberty in the case of bondage versus the inability to leave a job until the ‘trafficking fee’ is paid). Based on these criteria, coercion should support conviction of human trafficking in some but not all circumstances. Compare the following scenarios: (a) Unless you agree to be trafficked to a clinic abroad and have your kidney removed, I will have your family arrested on made-up charges and thrown into prison i­ndefinitely. (b) Unless you go to work at a farm abroad for the summer and send me half of your salary, I will stop paying your brother’s private school tuition. (c) If you refuse to accompany and sexually serve our customers on their foreign trips, I will fire you. 17 V Bergelson, ‘Sex, Lies, and Law: Rethinking Rape-by-Fraud’ in C Ashford, A Reed and N Wake (eds), Legal Perspectives on State Power: Consent and Control (Newcastle, Cambridge Scholars Publishing, 2016). 18 ibid.

Vulnerability, Exploitation and Choice  199 The first example would clearly support a charge of human trafficking or attempted human trafficking, whereas the second may constitute a legitimate financial request despite its threatening and coercive language. The third example could be a coercive threat, but it could also be a fair business warning if addressed at an employee of a legal international ‘escort’ service. In sum, depending on the combination of the factors set forth above, the ‘means’ employed for the purposes of trafficking may produce different legal results. The APOV occupies a special place in the realm of ‘means’. Unlike the use of force, coercion or deception, this concept is not an integral part of traditional criminal law. In fact, some courts have explicitly refused to equate taking the advantage of one’s dire circumstances and compelling one by force. In a prosecution for rape, an American court explained: To define ‘forcible compulsion’ so as to permit a conviction for rape whenever sexual intercourse is induced by ‘any threat’ or by ‘physical, moral or intellectual means or by the exigencies of the circumstances’ will undoubtedly have unfortunate consequences. If a man takes a destitute widow into his home and provides support for her and her family, such a definition of forcible compulsion will convict him of attempted rape if he threatens to withdraw his support and compel her to leave unless she engages in sexual intercourse. (Emphasis added)19

The court in Mlinarich was concerned that the ambiguous and generic definition of force would create an ‘intolerable uncertainty’ and would place in the hands of the jurors an ‘almost unlimited discretion to determine which acts, threats or promises will transform sexual intercourse into rape’.20 Similar concerns may be raised in connection with the APOV. Even though the concept has been accepted by all major trafficking treaties adopted after the Trafficking Protocol, as well as by policy documents and interpretative texts, the meaning and scope of the APOV are far from certain. According to the UNODC APOV Paper, the ‘official legislative history does not shed light on how or why the concept was included, at the last minute, within the means element of the definition of trafficking’.21 Informal information indicates that the drafters were trying to cover various, subtle ways in which an individual could be forced into a situation of exploitation. In addition, the inclusion of the APOV provision helped to achieve consensus on the issue of ‘non-coerced’ prostitution on which the Trafficking Protocol took no position.22 APOV has not been defined by any international treaty and the official guidance as to its meaning is ambiguous. The drafting history of the Trafficking Protocol suggests that APOV should be understood as referring to ‘any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved’.23 This explanation has been justly criticised as circular and unhelpful. For example, it is unclear what 19 Commonwealth v Mlinarich, 498 A2d 395 (PA 1985). 20 ibid. 21 UNODC (n 5) 2. 22 ibid 18 (‘abuse of a position of vulnerability was seen as an avenue through which the range of exploitative practices identified as trafficking could potentially be expanded – while being sufficiently vague to not lock States into any fixed position on the contentious issue of prostitution’). 23 UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (New York, United Nations, 2004) 269 (citing A/55/ 383/ Add 1, para 63).

200  Vera Bergelson a ‘real and acceptable alternative’ actually means or how this benchmark is to be applied in practice.24 At a closer look, the APOV provision consists of at least two distinct concepts: first, the traffickee’s position of vulnerability; and, second, the trafficker’s abuse of that position. Definitionally, the first concept presents a lesser problem as it has been interpreted in a number of unofficial documents, including those produced by the UNODC and the International Labour Organization (ILO). For example, the Model Law against Trafficking offers as one legislative option a list of circumstances that qualify for the ‘position of vulnerability’,25 among which are: • having entered the country illegally or without proper documentation; • pregnancy or any physical or mental disease or disability of the person, including addiction to the use of any substance; • reduced capacity to form judgements by virtue of being a child, illness, infirmity or a physical or mental disability; • promises or giving sums of money or other advantages to those having authority over a person; • being in a precarious situation from the standpoint of social survival; or • other relevant factors.26 The commentary to this provision notes that this list is not exclusive and that other kinds of abuse, including abuse of the victim’s economic situation, would also q ­ ualify.27 Regional and national human trafficking legislative documents use similar extensive and open-ended lists of circumstances to define the ‘position of ­vulnerability’,28 and courts dutifully apply them. For example, in several recent cases, defendants were found guilty of trafficking because ‘the precarious administrative situation of the renters, who were migrants with no right to stay in Belgium and unable to rent elsewhere, was seen to have created vulnerability which was known to and abused by the accused’.29 It is questionable whether the open-ended definitions of a position of vulnerability provide enough notice to the public and enough guidance to the fact finders, and whether, using the language of Mlinarich, they are not so elastic as to create an ‘intolerable uncertainty’. The second element of the APOV raises even more questions: the ‘abuse’ element of the concept has been largely ignored by legislators and commentators alike, who have

24 UNODC (n 5) 3. 25 UNODC, Model Law against Trafficking (2009). 26 ibid art 5, para 1. 27 ibid. 28 Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking Human Beings, Council of Europe Treaty Series – No 197 (Warsaw, Council of Europe, 2005) 15. Examples adopted in national legislation include such positions of vulnerability as illegal or uncertain immigration or residency status; minority status; and illness, pregnancy, physical and mental disability (Belgium, Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on entry, stay, status and removal of aliens), art 77 bis, para 1); UNODC, Legislative Guides (2004) 268 n 13. 29 UNODC (n 5) 45.

Vulnerability, Exploitation and Choice  201 mainly focused on the characteristics that make people vulnerable to trafficking. In the words of the UNODC APOV Paper, the resulting documents: [A]re not concerned with the more complex and fraught question of whether, from the point of view of criminal law, a particular characteristic of the victim or his/her situation was abused as a means of trafficking him or her. They provide little or no guidance on how the proposed ­indicators could or should be applied in the context of a criminal investigation or­ prosecution.30

In the absence of the relevant legislative history and official guidance, one has to turn to the dictionaries for the meaning of the term. According to the Cambridge Dictionary, to abuse means to use something for the ​wrong ​purpose in a way that is ​harmful or m ​ orally​ wrong.31 The Oxford American Desk Dictionary & Thesaurus defines the word as ‘to use (something) to bad effect or for a bad purpose’ and lists among the word’s synonyms ‘to exploit’ and ‘to take advantage of’.32 These definitions seem to suggest that in order for the APOV to be established, two conditions must be satisfied: (a) the traffickee must be in a ‘position of vulnerability’ (and the trafficker must be aware of that); and (b) the trafficker must use the traffickee’s ‘position of vulnerability’ wrongfully, ie, in a wrongful way and for a wrong purpose. The trafficker may use the traffickee’s position of vulnerability wrongfully by the methods he employs and by the goals he pursues. In this regard, it is important to highlight that: (1) the trafficker’s methods of abuse may not be reduced to force, threat of use of force, abduction, deception, or coercion; otherwise, the APOV as a separate means of trafficking would be superfluous. These methods are more likely to include psychological pressure, manipulation and other subtle forms of coercion and deception, which, under normal circumstances, would not be deemed oppressive enough to violate the victim’s autonomy.33 Yet, coupled with the traffickee’s position of vulnerability, even these less oppressive methods may significantly diminish the traffickee’s ability for free and rational decision-making; and (2) what turns the ‘use’ of the traffickee’s position of vulnerability into the ‘abuse’ is the trafficker’s wrongful purpose. Should the trafficker use someone’s position of vulnerability (say, strong physical discomfort caused by drug abuse) for a good purpose (say, to persuade the drug addict to seek treatment), he would be guilty of no offence. Accordingly, the moral weight of the APOV provision falls, in part, on the traffickee’s limited capacity for free and voluntary decision-making, which may be due to either the traffickee’s desperate situation or the trafficker’s manipulation and subtle coercion (not amounting to the ‘coercion’ independently listed under the ‘means’ of trafficking). 30 ibid 3. 31 www.dictionary.cambridge.org/dictionary/english/abuse. 32 Definition of ‘abuse’ in Oxford American Desk Dictionary & Thesaurus (Oxford, Oxford University Press, 2010). 33 In fact, the APOV may be found even when it was the traffickee who took the initiative in seeking employment from the trafficker; UNODC (n 5) 45.

202  Vera Bergelson The other source of the APOV’s moral significance is the trafficker’s wrongful purpose, typically exploitation. Without it, neither the traffickee’s position of vulnerability nor the trafficker’s use of the traffickee’s position of vulnerability would give rise to the crime of human trafficking. C.  The Purpose of Exploitation The Trafficking Protocol does not define ‘exploitation’; instead, it provides a minimal list of exploitive practices that ought to be covered by the states’ criminal legislation. Among these are: sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. In addition, the Model Law against ­Trafficking suggests that states may consider adding the following practices to the list: (a) (b) (c) (d) (e)

Forced or servile marriage; Forced or coerced begging; The use in illicit or criminal activities [including the trafficking or production of drugs]; The use in armed conflict; Ritual or customary servitude [any form of forced labour related to customary ritual] [exploitative and abusive religious or cultural practices that dehumanise, degrade or cause physical or psychological harm]; (f) The use of women as surrogate mothers; (g) Forced pregnancy; (h) Illicit conduct of biomedical research on a person.34

The Model Law against Trafficking also explains that exploitation is generally associated with particularly harsh and abusive conditions of work, or ‘conditions of work inconsistent with human dignity’.35 This explanation, unfortunately, is not very helpful for conceptualising exploitation – in part because it is so conclusory, in part because it does not clarify the relationship between dignity and exploitation (why is it abuse of dignity and not of some other interest or value that amounts to exploitation?) and in part because it is both over- and under-inclusive. It is over-inclusive because the harsh conditions of work do not have to involve anyone’s ill will, but instead may be the sad reality of life in a developing country. And, vice versa, it is under-inclusive because decent conditions of work do not preclude exploitation – take, for instance, a manipulative go-between who reaps enormous benefits from selling the work of a brilliant but impractical artist. In contrast, modern moral philosophy has carefully explored the phenomenon of exploitation.36 Joel Feinberg defines exploitation as ‘a way of using someone for one’s own ends, which is somehow wrongful or blameworthy, whether it wrongs the other person or not’.37 All interpersonal exploitation involves one party (A) profiting from his relation to another party (B) by somehow ‘taking advantage’ of some characteristic of B, 34 UNODC (n 8) ch 5, art 8(2). 35 ibid. 36 See, eg, JL Hill, ‘Exploitation’ (1994) 79 Cornell Law Review 631; P McLaughlin, ‘The Ethics of ­Exploitation’ (2008) 1(3) Studia Philosophica Estonica 5; J Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing (New York, Oxford University Press, 1988). 37 J Feinberg, Harmless Wrongdoing (1988) 176–77.

Vulnerability, Exploitation and Choice  203 or some feature of B’s circumstances. ‘The essential point is that because of something about B, which A uses in a certain way, A profits.’38 More often than not, exploitation is unfair to the exploitee. It may be unfair because the exploitee’s options are so limited and his bargaining power is so inferior to the exploiter’s that his choice does not reflect his true preferences and results in a setback to his interests. Arguably, this setback, intentionally or at least recklessly inflicted by the exploiter, may support his grievance against the exploiter and warrant criminalisation of exploitation under the ‘harm’ principle. Yet even when the exploitee freely expresses his true preferences and thus has no claim against the exploiter, the exploiter’s taking advantage of the misfortunes and unhappy circumstances of a fellow citizen may still be objectionable. This may be, among other things, because it produces unjust gain. This gain may be unjust due to the fact that ‘one’s person’s profit is made possible only because of another’s suffering, without d ­ iminishing that suffering’.39 Such unjust gain may be considered a free-floating moral evil,40 the prevention of which may, arguably, be ‘a good and relevant reason for penal legislation prohibiting the appropriate sorts of exploitation – whether or not they unfairly cause harm’.41 In addition to the immorality of unjust gains, there may be other non-grievance, freefloating evils associated with the exploitation of others’ vulnerable positions. The key candidate among those evils, often cited in the international documents related to human trafficking, is a violation of human dignity.42 The Explanatory Report to the Council of Europe, for example, provides that those who abuse the position of vulnerability of others ‘flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce’.43 With these possibilities in mind, let us consider whether taking advantage of one’s position of vulnerability for the purpose of extracting a personal benefit can be said to warrant criminalisation as a grievance harm or non-grievance free-floating evil. But before we start, let us establish one more point: neither the Trafficking Protocol nor the related legislation addresses criminalisation of exploitation. Instead, these documents address the criminalisation of certain actions done ‘with the purpose of exploitation’. No actual exploitation of the traffickee’s or the traffickee’s circumstances is required to find the trafficker guilty of trafficking. This point is important because, generally speaking, criminal law is not interested in one’s subjective purpose as long as one’s actions do not produce or threaten an unlawful harm. Simply acting malevolently with the purpose of hurting others may be outside the scope of criminal law. For example, a woman is guilty of no crime if she spitefully

38 ibid 178. 39 ibid 184. 40 ibid 3–33. 41 ibid 210. 42 See, eg, UNODC Consent Paper (n 8) 44 (the preamble to the Indonesia 2007 Law ‘explicitly mentions that trafficking in persons violates values like human dignity and human rights’); Criminal Appeal 3204/03 (Supreme Court of Israel) State of Israel v Yaish Ben David (holding in a case with no violence or overt threats that the crime of trafficking violates the fundamental rights of a human being in that it denies a person’s f­ reedom and violates his dignity). 43 Council of Europe, Explanatory Report to the Council of Europe (2005), para 83.

204  Vera Bergelson tears into pieces a picture of her boyfriend with the purpose of causing him mental anguish. In light of all this, can we say that the trafficker’s self-serving purpose, when combined with a morally neutral act and the traffickee’s position of vulnerability, violates the harm principle or the immorality principle, or produces some other free-floating evil that may be justifiably warded off by the means of criminal law? IV.  CRIMINALISATION PRINCIPLES

A.  Harm and Consent It is well documented that victims of human trafficking are often harmed. Their health, family relationships, community ties, employment prospects and long-term interests suffer significant setbacks. However, not all harms fall within the jurisdiction of criminal law. Traditionally, criminal harm is understood as a wrongful interference with the victim’s essential welfare interests.44 The interference is deemed wrongful if it violates the victim’s autonomy – specifically, the victim’s rights. Harm unaccompanied by a rights violation is usually not punishable by criminal law. For example, a competitor’s success may financially harm a neighbouring business owner. However, the competitor is guilty of no offence because the business owner does not have a right that guarantees him the protection from competition. Consent is a waiver of rights.45 By giving consent, a person releases others from certain obligations they used to have with respect to that person and gives them the ­privilege, power or immunity to do what they could not legitimately do before.46 From this perspective, trafficking by means of the APOV presents a problem: in many instances, trafficking happens with the apparent consent of the traffickee.47 Should this consent be given weight? This problem presents a serious conceptual and political dilemma under the current trafficking laws. The UNODC Consent Paper admits: Consent remains a troubled, complex and unresolved aspect of international law and policy around trafficking. The relevant clause in the Trafficking in Persons Protocol has provided some guidance on the general direction that States are to follow but has not eliminated conceptual confusion, diverse interpretations and practical hurdles.48

44 J Feinberg, The Moral Limits of Criminal Law: Harm to Others (New York, Oxford University Press, 1984) 62. These include ‘interests in the continuance for a foreseeable interval of one’s life, and the interests in one’s own physical health and vigor, the integrity and normal functioning of one’s body, the absence of absorbing pain and suffering or grotesque disfigurement, minimal intellectual acuity, emotional stability’ (at 37). 45 ibid 115–17; JJ Thomson, The Realm of Rights (Cambridge, MA, Harvard University Press, 1990) 348–53, 361 (explaining that consent is a mechanism by which a person may divest himself of a claim and transfer to another a privilege, power or immunity). 46 See generally WN Hohfeld, Fundamental Legal Conception as Applied in Judicial Reasoning and Other Legal Essays (New Haven, Yale University Press, 1923). 47 UNODC Consent Paper (n 8) 10 (‘Abuse of a position of vulnerability is often the “means” of greatest relevance in cases of trafficking where victim consent is indicated or asserted. This is unsurprising, as the assertion of consent in the face of overt means such as force, abduction and fraud appears to be c­ ounter-intuitive’). 48 ibid at 34.

Vulnerability, Exploitation and Choice  205 On the one hand, consent is a central legal concept reflecting the values of agency, autonomy and self-determination. International legal documents, particularly those involving human rights, habitually pay tribute to those values. On the other hand, the Trafficking Protocol explicitly provides that consent of the traffickee to the intended exploitation is irrelevant when the traffickee is a child or when any of the ‘means’ are employed.49 This position has been repeated in most major anti-trafficking instruments adopted after the Trafficking Protocol, policy documents and interpretative texts.50 It has also been echoed by some practitioners interviewed by the drafters of the UNODC Consent Paper who maintained that ‘the mere use of means should render any assertions of consent ­irrelevant, irrespective of the actual effect that this use has on the victim’s consent’.51 As far as the child’s consent is concerned, there is nothing controversial in the ­Trafficking Protocol’s position. In order to be valid, consent must be free, rational and informed.52 There is a strong autonomy-respecting argument that children are not capable of such free, rational and informed decision-making, and thus they are not fully autonomous agents and may be legitimately denied the power to consent to certain things, particularly those having long-lasting consequences. This argument, however, appears much weaker when applied to legally competent adults. To be able to stand behind it, the international community would need to adopt some version of legal paternalism. Under the hard version of legal paternalism, the state would have the power to override the consent of any of its citizens because people inherently lack the substantial capacity to appreciate what is good for them, as well as the free will to act on their ­preferences; thus, when the stakes are high enough, the state, acting as parens patriae, should disregard people’s autonomy for their own protection. A softer version, which is really paternalistic only by name, would maintain that the state may over-ride the consent of a particular individual, in particular circumstances, if due to a cognitive or volitional impairment, this individual lacks the substantial capacity for rational decision-making. Unlike the hard version, the soft version of paternalism does not question the capacity for autonomy of a rational, free, informed individual and thus is in accord with the liberal ‘harm’ principle. It is not entirely clear which of the two versions the Trafficking Protocol pursues. The official commentaries to international human trafficking documents have not been particularly instructive either. Consider the Explanatory Report to the Council of Europe, which maintains: The question of consent is not simple and it is not easy to determine where free will ends and constraint begins. In trafficking, some people do not know what is in store for them while others are perfectly aware that, for example, they will be engaging in prostitution. However, while someone may wish employment, and possibly be willing to engage in prostitution, that does not mean

49 Trafficking Protocol (n 1) art 3(b). 50 At 34. 51 UNODC Consent Paper (n 8) 81. 52 See WE Shipley, ‘Annotation: Consent as Defense to Charge of Criminal Assault and Battery’ (2005) 58 American Law Reports Annotated, Third Series 662, 666 (observing that ‘consent obtained by fraud, or from one without capacity to consent, will not be a defense to a charge of criminal assault and battery’). Certain groups of people (eg, children, the mentally ill and the seriously intoxicated) in most instances are deemed ­incapable of granting valid consent. See J Feinberg, The Moral Limits of Criminal Law: Harm to Self (New York, Oxford University Press, 1989) 316..

206  Vera Bergelson that they consent to be subjected to abuse of all kinds. For that reason [the Convention] provides that there is trafficking in human beings whether or not the victim consents to be exploited.53

Unfortunately, this commentary is not a model of intelligibility. For what it is worth, it apparently tries to say that consent to A (‘engaging in prostitution’) does not mean consent to B (‘abuse of all kinds’). This portion of the commentary is quite straightforward if somewhat in the style of Captain Obvious. What is less straightforward is why this statement is there and how it reaches the conclusion that if A does not mean B, and B is invalid, A is invalid too. Perhaps we should not get too hung up on the formal logic of a largely political document; instead, we should try to address its substantive concern, which appears to be that it is sometimes hard to draw the line between the truly consensual and not so truly consensual conduct. This is certainly a valid concern which has been shared, among others, by HLA Hart who, in his critique of John Stuart Mill’s vision of liberty, cited numerous factors that ‘diminish the significance to be attached to an apparently free choice or to consent’.54 Hart wrote: Choices may be made or consent given without adequate reflection or appreciation of the consequences; or in pursuit of merely transitory desires; or in various predicaments when the judgment is likely to be clouded; or under inner psychological compulsion; or under pressure by others of a kind too subtle to be susceptible of proof in a law court.55

Few would disagree that people can act against their ‘better judgment’56 or that their choices are seldom, if ever, free from various influences. In many instances, people’s consent is pre-determined by social norms or circumstances.57 This is particularly true with respect to the people in a position of vulnerability. However, even limited as it is, the freedom of choice has an enormous personal and public value. As long as an individual does not sell himself into complete, irreversible slavery, he retains certain level of freedom of choice and self-determination. We associate human and civil rights with people’s ability to control their lives and make social and political choices. In addition, the fact that people’s choices may be imperfect does not mean that Big Brother is more likely to make better choices for them. The choices of the people in a position of vulnerability are already severely limited; often, they lack a legal immigration status and generally are not favoured by the authorities. In these circumstances, it is somewhat hypocritical for the state, which does not offer much protection to these people, to further limit their choices by denying them the power to make their own decisions. Finally, legal paternalism carries a political threat of paving a ‘road to totalitarianism, since it invites government to substitute for its ­citizens’ expressed preferences that which the state judges they “really” (objectively) want or need’.58 53 Council of Europe (n 28) para 97. 54 HLA Hart, Law, Liberty, and Morality (Palo Alto, Stanford University Press, 1963) 33. 55 ibid. 56 Feinberg (n 36) 200–02. 57 See, eg, M Gibson, ‘Rationality’ (1977) 6 Philosophy & Public Affairs 193, 214–16 (discussing how people’s choices are determined by their socialisation); RL West, ‘The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory’ (1987) 3 Wisconsin Women’s Law Journal 81, 96–97 (arguing that women consent and redefine relationships as consensual in order not to be violated). 58 Roberts, ‘Philosophy, Feinberg, Codification, and Consent’ (2001) 228.

Vulnerability, Exploitation and Choice  207 Some of these concerns have been echoed by the legal practitioners interviewed by the drafters of the UNODC Consent Paper.59 A number of them brought up examples of women working in prostitution and people accepting substandard jobs because they needed the money and made a rational choice to accept such work/hardship as one step on their path to a better life.60 These practitioners opined as follows: Holding the consent of such persons irrelevant therefore risks rejecting the possibility that these individuals were exercising agency, potentially undermining the core values of autonomy and freedom that are cherished and upheld in other situations and for other people. In this sense, the undifferentiated attribution of ‘vulnerability’ to a group such as women or migrants can take power away from those who may be seeking to use that power to improve their circumstances.61

I share these concerns. A democratic society – indeed, any society that respects its­ citizens – should be very careful in over-riding the citizens’ power to make self-­regarding life choices. Certain state practices (eg, educational, regulatory and administrative) may justifiably involve paternalistic decisions and civil courts may (and should) refuse to enforce unconscionable contracts, but criminal punishment should almost never attach to the paternalistic grounds. Arguably, the traffickee’s power to consent may be legitimately over-ridden by the collective need to protect a common good under the ‘harm to others’ principle: the traffickee’s consent to work or live in substandard conditions may negatively impact the employment and living prospects for other traffickees and residents of the country. Additional ‘harms to others’ may relate to the concerns about border control, immigration regulation, public health, rise in crime etc. Those are all legitimate concerns, but the potential harms associated with them would not be eliminated by denying traffickees the power to consent; the same issues arise in connection with the crimes unrelated to human trafficking, such as illegal immigration or human smuggling. These concerns should be addressed by the immigration and labour laws and policies.62 Criminal law is an ineffective and improper tool in this fight. Moreover, the criminal law that systematically denies individuals the power to consent causes substantial public harm: by undermining the presumption of free will, it threatens its own legitimacy. Criminal punishment is justified only if the individuals have the power to choose their conduct. Considering all those political, societal and moral costs, the global community should be reluctant to promote paternalistic criminal law rules that disregard people’s autonomy. In contrast, criminal laws which guard individuals’ self-regarding decisions by ensuring that these decisions are truly rational and voluntary promote the values of liberty and autonomy. The individuals who are compelled to agree to trafficking by force, threat or deception almost always lack the capacity to grant valid consent. In these circumstances,

59 UNODC Consent Paper (n 8) 17 (the authors conducted in-depth interviews with practitioners and experts from 12 states, namely, Argentina, Australia, Belarus, Indonesia, Israel, Norway, the Philippines, Serbia, Spain, Thailand, the UK and the US). 60 ibid 76. 61 ibid. 62 See, eg, the chapter by Van Kempen and Lestrade in this volume; and J Chacon, ‘Misery and Myopia: Understanding the Failures of US Efforts to Stop Human Trafficking’ (2006) 74 Fordham Law Review 2977.

208  Vera Bergelson the state is justified in annulling a non-autonomous agreement, just like it is justified in annulling an agreement entered into by a child. On the other hand, the state’s authority to disregard the traffickee’s consent is much more questionable if the ‘action’ of trafficking is accomplished by the APOV instead of the more drastic ‘means’. Compare two ‘means’ – traditional coercion and APOV (based on the traffickee’s illness, pregnancy, illegal immigration status, severe financial circumstances etc): (1) Coercion: unless you agree to have your kidney removed, I will have your family arrested on made-up charges and thrown into prison indefinitely. (2) APOV: if you agree to have your kidney removed, I will pay your landlord the money you owe him so that he doesn’t report your illegal status to the police. Clearly, both propositions are coercive, exploitative and unfair. And yet there are some significant differences between the two: • Coercion narrows down the victim’s options; the APOV expands them. • The coercer is the author of the victim’s harm. Coercion creates an independent reason for the victim’s action that did not exist until the coercer threatened the victim. The traffickee’s position of vulnerability usually exists prior to the trafficker’s ­interference and is not the product of the trafficker’s actions.63 • From the victim’s subjective perspective, the coercer’s proposition makes the victim’s situation worse. In the APOV scenario, from the traffickee’s perspective, the t­ rafficker’s proposition improves the traffickee’s situation. • The traffickee may be objectively right: as coercive, exploitative and unfair as the trafficker’s offer is, it may still allow the traffickee to improve his circumstances compared to his current position. Coercion offers its victim no new benefit in exchange; it is pure theft. • The coercer uses a threat to compel the victim; the abuser of the position of ­vulnerability uses an offer. How do we tell the difference? Clearly, a threat can be rephrased as an offer and vice versa. However, there are some substantive differences between them in addition to the wording. In the case of a threat, the victim usually prefers that the person who approached him does not exist.64 In the case of an offer, he does not. Here, the target of coercion would prefer the coercer to disappear. The target of the APOV would not – if the trafficker disappeared, the landlord would report the target’s illegal status to the police. These differences are paramount. As individuals in a society that respects rights, we may fairly expect others not to encroach on our liberty and not to put us intentionally in harm’s way without proper justification; coercion goes against these fair expectations. In contrast, we may not fairly expect that others do not tempt us with offers that are not in our long-term interests. Furthermore, we may value an individual’s ability to follow the

63 It should be noted that the Trafficking Protocol does not distinguish between the traffickee’s existing position of vulnerability and the position created by the trafficker. Both equally support the conviction of ­trafficking. 64 L Katz, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago, University of Chicago Press, 1987).

Vulnerability, Exploitation and Choice  209 path in life that he subjectively prefers, regardless of its objective quality, as long as his choice was truly his own. The APOV would allow such choice, but coercion would not. Finally, the objective expected value of a coerced arrangement is almost always negative, but this is not necessarily true about an APOV arrangement. True, certain offers may be as compelling and coercive as threats, particularly when addressed to a person in a position of vulnerability. But, unlike threats, offers do not over-ride individual autonomy and criminal law should reflect this difference. This conclusion does not mean of course that the traffickee’s acquiescence to trafficking should always preclude criminal punishment of the trafficker. Even when the trafficker’s manipulation does not completely overpower the traffickee’s will, it still may significantly diminish the voluntariness and rationality of the traffickee’s decision. If the APOV is particularly severe, it may be believed that the traffickee’s apparent consent to exploitation is invalid and that the trafficker is guilty under the ‘harm’ principle. Naturally, these facts must be established by the fact finder. The trafficking legislation may legitimately require more proof in order to establish the traffickee’s voluntary and rational consent to a riskier or more harmful form of conduct. This requirement would not make the legislation impermissibly paternalistic. At the same time, the laws that completely deny people – including the people in a position of vulnerability – the power to make risky or harmful self-regarding decisions significantly encroach on these people’s autonomy and, in the absence of other reasons, are unacceptable in a free democratic society.65 B. Immorality The high probability of harm to the traffickees may be the main reason for refusing to accept their consent at face value in the situations of the APOV. However, the APOV may be wrongful for other reasons too and these reasons may, arguably, also warrant disregarding the traffickees’ consent. For example, if the APOV involves a public, free-floating evil, a private agreement between its participants would not cure it of its wrongfulness. If the free-floating evil is also a crime, the consensual conduct provided for in the agreement will remain criminal. For better or worse, most victimless crimes fit into the category of free-floating evils.66 Historically, free-floating evils – from vagrancy to gambling to prostitution – have been criminalised to protect the community from moral corruption.67 Enforcing morality by the means of criminal sanctions has long been viewed as a legitimate state function despite the criticisms for infringing on citizens’ liberty and privacy.

65 The UNODC Consent Paper seems to agree with this view by approvingly quoting my earlier work on consent; V Bergelson, ‘The Right to Be Hurt Testing the Boundaries of Consent’ (2007) 75 George Washington Law Review 165, 9. See UNODC Consent Paper (n 8) 21 no 18. 66 V Bergelson, ‘Victimless Crimes’ in H LaFollette (ed), International Encyclopedia of Ethics (Chichester, Wiley, 2013) 5329–37. 67 American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (Philadelphia, American Law Institute, 1980) § 230.2, cmt 2(d) at 407 (‘a penal law will neither be accepted nor respected if it does not seek to repress that which is universally regarded by the community as misbehavior’).

210  Vera Bergelson Recent decades have seen significant diminution of support for moral legislation. In part, this can be explained by the general expansion of the liberal model of criminal law, which has questioned the state authority to use criminal sanctions for punishing non-grievance harms. In the view of Joel Feinberg, even the exploitation principle, this ‘last best hope’ of legal moralism as he calls it, may not provide sufficient grounds for the criminalisation of free-floating, non-grievance evils.68 Another reason for the morals legislation falling out of favour has been the growing recognition of the impending crisis of over-criminalisation and, accordingly, the need to trim penal codes by eliminating less egregious crimes. Neither the Trafficking Protocol nor the subsequent legislative and explanatory documents have used immorality as an argument for the adoption of criminal legislation. In certain ways, these documents made an effort to avoid the issue of morals altogether – this was mainly the case in connection with prostitution and sexual exploitation. For example, the Explanatory Report to the Council of Europe stated: ‘The strict policy line of UNODC is to remain neutral on the issue of prostitution.’69 Moreover, the Trafficking Protocol’s decision not to criminalise the inherently immoral APOV (unless it is accompanied by other elements of trafficking) provides evidence that trafficking legislation has not relied on the principle of legal moralism. While the immorality rationale has been gradually losing its authority as an independent ground for criminalisation, a somewhat related rationale, namely violation of dignity, has been cited in criminal law literature and legislation increasingly often. C. Dignity A number of scholars have suggested that the concept of criminal harm should not be limited to a violation of rights.70 Antony Duff, for instance, has convincingly argued that dignity is as essential to our humanity as autonomy:71 [I]f we … develop a richer conception [of humanity] that does justice to the morally significant aspects of our nature as social, embodied and impassioned beings, we will see that there are more ways to deny or radically fail to respect humanity than by violating autonomy. We will then also see that we therefore have good reason – reason of the same kind as we have to criminalize violations of autonomy – to criminalize other modes of conduct that deny or radically fail to respect the humanity of those against or on whom they are perpetrated.72

Therefore, certain acts may be wrongful simply because they violate the dignity of their participants. Meir Dan-Cohen, for example, has maintained that the reason why society 68 Feinberg (n 36) 210. 69 Council of Europe (n 28). 70 See, eg, M Dan-Cohen, ‘Basic Values and the Victim’s State of Mind’ (2000) 88 California Law Review 759, 770; MD Dubber, ‘Toward a Constitutional Law of Crime and Punishment’ (2004) 55 Hastings Law Journal 509, 568 (opining that criminal harm is ‘harm to a person, and harm to a person’s very personhood, as opposed to his morally irrelevant attributes, such as his social dignity’); RA Duff, ‘Harms and Wrongs’ (2001) 5 Buffalo Criminal Law Review 13, 39–44 (referring to the harm as violation of humanity); RG Wright, ‘Consenting Adults: The Problem of Enhancing Human Dignity Non-coercively’ (1995) 75 Boston University Law Review 1397, 1399. 71 Duff, ‘Harms and Wrongs’ (2001). 72 ibid 44.

Vulnerability, Exploitation and Choice  211 should outlaw slavery, even in the hypothetical case of voluntary ‘happy slaves’,73 is that slavery represents a ‘paradigm of injustice’, which, by its very terms, denies people dignity and thus treats them with disrespect.74 Similarly, RA Duff finds voluntary gladiatorial contests unacceptable because of the ‘dehumanization or degradation perpetrated by the gladiators on each other, and by the spectators on the gladiators and on themselves’.75 Many believe that dignity is so essential to our humanity that when one’s power to give legally valid consent conflicts with one’s dignity, the former ought to yield.76 A private interest ought to yield to the common good. Accordingly, consent may not serve as a defence to the violation of dignity. This view has been shared by a number of practitioners interviewed for the UNODC Consent Paper. They opined that ‘a person should be free to choose a life path that is legally tolerated, but that the value of human dignity places limits on this: where legally valid consent conflicts with human dignity, that consent should not be considered as valid’.77 This point of view is appealing, provided that those violations of dignity are severe enough to overcome such values, essential for any modern society, as autonomy and personal liberty.78 So, what conduct of the traffickers may be deemed sufficiently degrading or dehumanising to constitute a violation of dignity that may be criminally punished? The Trafficking Protocol does not use the term ‘dignity’; other trafficking documents and explanatory materials do, but they do not define the term either. In the academic literature, dignity is usually understood as equal moral worth. For example, Dan-Cohen defines dignity as ‘an expressive value demanding that people’s behavior, physical and verbal, convey a certain attitude to other people, namely, an attitude of respect’.79 A few scholars have made an important point that criminal law should protect only moral dignity, or dignity of personhood, as opposed to social dignity or dignity of rank.80 Regional and national trafficking laws adopted pursuant to the Trafficking Protocol often identify violations of dignity with particularly harsh forms of exploitation,81 and this connection is understandable: the examples of exploitation listed in the Trafficking Protocol typify violations of dignity – ‘the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs’.82 The Georgian Criminal Code includes 73 See generally D Herzog, Happy Slaves: A Critique of Consent Theory (Chicago, University of Chicago Press, 1989). 74 Dan-Cohen, ‘Basic Values and the Victim’s State of Mind’ (2000) 771. 75 Duff (n 70) 39. 76 Wright, ‘Consenting Adults’ (1995) 1399; see also Dan-Cohen (n 70) 777–78. 77 UNODC Consent Paper (n 8) 38. 78 Duff (n 70) 38–39, 42 (arguing that a dehumanising act may be criminalised only if it is a ‘public’ rather than a ‘private’ wrong, ie, such that ‘concerns the whole political community as a kind of wrong that should (in principle) be publicly condemned by the criminal law’); Dan-Cohen (n 70) 770. 79 Dan-Cohen (n 70) 771. 80 See Dubber, ‘Toward a Constitutional Law of Crime and Punishment’ (2004) 535; Dan-Cohen (n 70) 169 no 23. 81 The Belgian Penal Code, for example, identifies exploitation in its definition of trafficking in persons as ‘the intent to put somebody to work or permitting the person to be put into work where conditions are contrary to human dignity’; Belgian Penal Code, art 433 (2005). The French Penal Code identifies as one of the purposes of trafficking ‘the imposition of living or working conditions inconsistent with human dignity’; French Penal Code, s 225-4-1 (2003). 82 Trafficking Protocol (n 1) art 3.

212  Vera Bergelson violation of dignity in the definition of contemporary slavery.83 Similarly, the Model Law against Trafficking uses the term ‘dignity’ to define exploitation.84 However, which specific acts or conditions constitute a violation of dignity remains unclear, and this should be a source of concern for the legitimacy of a criminal statute. This concern should be particularly acute when one vague term is defined with the help of another, equally vague term. For example, the Explanatory Report to the Council of Europe interprets the ‘position of vulnerability’ broadly to include vulnerability of virtually any kind: ‘physical, psychological, emotional, family-related, social or economic’.85 The traffickee’s situation may involve the insecurity or illegality of administrative status, economic dependence or fragile health. ‘In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited.’86 A trafficker who abuses such vulnerability is deemed to violate human dignity.87 Pursuant to this explanation, the trafficker violates the traffickee’s dignity any time when, with the awareness of the traffickee’s hardship, he offers the traffickee substandard terms of employment and the traffickee accepts them. Such a transaction is a violation of the traffickee’s dignity, even if the traffickee is subjectively satisfied with the offer and even if that offer objectively represents the best opportunity for the traffickee to reduce his current hardship. Such a verdict appears a bit extreme – it is one thing to say that slavery denies people’s equal moral worth, yet quite another to extend the same devastating condemnation to all instances of lousy employment. Such expansion of what is understood as a violation of human dignity is undesirable: it would most likely trivialise the serious crime of trafficking and go against the public perceptions of culpability and proportionality, thus damaging societal trust and respect for the law. These concerns are not merely theoretical. There have been numerous prosecutions for trafficking based on the defendants’ violations of human dignity: • In one recent case, migrant workers were forced to work as a result of threats of legal action for breach of contract. Their documents were also withheld. • In another case, middle-aged East European men working in public toilets for wages well below the official minimum were found to have been trafficked for employment in conditions contrary to human dignity.88 Both cases raise legitimate questions about the true voluntariness of the traffickees’ consent to work. However, since the Trafficking Protocol precludes this inquiry, the courts had to find an alternative theory for prosecuting the traffickers. Apparently, the courts chose to expand the meaning of dignity beyond any familiar bounds. I doubt that this was

83 ‘Placing a person in conditions of contemporary slavery shall mean … forced labour in a situation where human honour and dignity are violated and/or without remuneration or with inadequate remuneration’; ­Georgia, Criminal Code 2006, art 143; UNODC (n 8). 84 The term ‘exploitation’ is not defined in the Protocol. However, it is generally associated with particularly harsh and abusive conditions of work, or ‘conditions of work inconsistent with human dignity’; UNODC (n 8). See also French Penal Code (n 81); Belgian Penal Code (n 81); Georgia, Criminal Code (n 83). 85 Council of Europe (n 28) para 83. 86 ibid. 87 ibid. 88 UNODC (n 5) 45.

Vulnerability, Exploitation and Choice  213 a commendable exercise of judicial power. The actions of the defendants in the examples above were certainly reprehensible, but if we are to take the legal terms seriously, we may not say that withholding documents, threatening a lawsuit or seriously under-paying for a job denies the victims the equal moral worth or dehumanises them in the way that slavery or forced prostitution does. This loose use of the terms is unfortunate on both moral and legal grounds. Violation of dignity is a serious harm and evil, both to the specific victim of this violation and society at large. Yet this term should be limited to the harsh treatment that denies the victim the basic respect to which every person is entitled merely by virtue of being a human being. Furthermore, it should be recognised that every time that the ‘dignity’ argument is used to criminalise consensual behaviour, the individual’s liberty is undermined – partly paternalistically, but mostly for the benefit of society at large. Therefore, as with any imposition on individual liberty, the threat to society should be serious enough to warrant the use of criminal sanctions. The problem of under-paying an employee does not necessarily fall into this category and may be more effectively addressed by other means than criminal law.89 In contrast, when violation of dignity reaches the level of dehumanisation, the harm to both the victim and society at large provides independent grounds for criminalisation, and criminal law doctrine should be able to accommodate this kind of harm. I suggest that the concept that requires revision, in order to reflect a broader meaning of harm, is the concept of wrongfulness: what we find morally objectionable is the disregard not only for one’s will but also for one’s human dignity. If we include violation of dignity in the concept of a ‘wrong’, then criminal harm can continue to be defined as a wrongful setback to an interest where ‘wrongful’ means either (i) such as violates a right (ie, autonomy), or (ii) such as violates the victim’s dignity. The two kinds of harm would include the same evil – objectification of another human being – which may happen through a rights violation (eg, non-consensual violence) or, alternatively, through a setback to interests combined with the disregard of the victim’s dignity (eg, consensual bondage). V. CONCLUSION

Under the Trafficking Protocol and the subsequent regional and national legislation, a morally neutral act of recruiting, transporting or harbouring becomes a serious crime if the act is done by means of APOV and for the purpose of exploitation. In this chapter, I have challenged the accuracy of the crime’s definition and justifiability of its broad scope. I have focused on exploring the wrongfulness of the APOV as a ‘means’ element of trafficking. I conclude that the two theories that could legitimise criminalisation of the APOV in a liberal society are the violation of autonomy and the violation of dignity – each accompanied by a setback to an important welfare interest of the traffickee. In a situation of the APOV, there is usually a claim that the traffickee has consented. Being a waiver of rights, consent precludes the violation of autonomy. Thus, unless it can be shown that the traffickee’s consent was invalid (because it was not rational, voluntary or informed), the APOV

89 See,

eg, the chapters by van Kempen and Lestrade, and Matravers in this volume.

214  Vera Bergelson should not offer enough ground for criminalising trafficking under the ‘harm’ principle. However, the Trafficking Protocol and the following legislation have avoided the need to evaluate the quality of the traffickee’s consent by declaring any traffickee’s consent null and void. I have critiqued that approach as being needlessly paternalistic, disrespectful to the individual choices of the people in difficult circumstances and damaging to democracy. A legitimate criminal law doctrine may not completely disregard the consent of an adult rational agent without losing its moral and political legitimacy. The second theory – the one based on the protection of dignity – provides a stronger rationale for criminalisation of trafficking based on the APOV. However, the term has not been defined and its meaning has been treated expansively to cover many situations which do not rise to the level of degradation and dehumanisation traditionally associated with the violation of dignity. The APOV always involves some degree of violation of people’s autonomy and dignity. However, not every kind of abuse, manipulation, exaggerating or cheating necessarily vitiates consent. And certainly not every kind of abuse, manipulation, exaggerating or cheating dehumanises a person to the point of denying him equal moral worth. Holding otherwise would be unfair not only to the trafficker, but even more so to the traffickee – it would effectively deny a person his autonomy and agency just because he has fallen on hard times. It would reduce an adult rational agent to the position of a child or one who is mentally incompetent. Furthermore, it would permanently victimise a person in a position of vulnerability by denying him the power to improve his circumstances. When the APOV happens in such a way that it violates the traffickee’s autonomy or dignity, it creates a prima facie case for criminal punishment. At this point, the trafficker’s purpose becomes relevant both for the government case and the defence. In order to secure conviction on the grounds of human trafficking, the state has to prove the defendant’s purpose of exploitation. Without it, the defendant may be convicted of a lesser general intent offence (eg, false imprisonment), but not the specific intent offence of human trafficking. To be exonerated of the trafficking charge, the defendant has to either negate the exploitative purpose of his actions or establish an affirmative defence (in which case he would be acquitted of all charges). This approach differs from the one adopted by the Trafficking Protocol and subsequent legislation, in that it does not assume either autonomy or dignity violation by the APOV, but instead requires individual analysis of the circumstances in which the APOV happens. Any manipulation or taking advantage of another’s misfortune is objectionable; however, only a certain gravity of wrongdoing reaches the level at which it may be justifiably criminalised. As a practical matter, it appears that very few cases of the APOV that are not covered by other ‘means’ provisions would be sufficiently violative of the traffickee’s autonomy as to nullify the traffickee’s consent. Similarly, in very few instances would the APOV alone reach such a point of degradation and dehumanisation as to constitute a violation of dignity. Consequently, properly limited and applied, the APOV would be very rarely used in trafficking cases as an independent theory of prosecution. Considering the conceptual and political difficulties in defining the terms used under this theory, it may be advisable to remove it entirely. Alternatively, the APOV provision needs to be revisited in every document that has adopted it; the meaning of every term forming the concept of the APOV needs to be clearly defined in order to provide an adequate notice

Vulnerability, Exploitation and Choice  215 of the p ­ rohibited conduct; and the scope of the offence of trafficking based on the APOV needs to be significantly trimmed to cover only cases of severe abuse of the traffickee’s autonomy or dignity. REFERENCES

American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (Philadelphia, American Law Institute, 1980). Bergelson, V, ‘The Right to Be Hurt: Testing the Boundaries of Consent’ (2007) 75 George Washington Law Review 165. ——. ‘Consent to Harm’ in F Miller and A Werthemier (eds), The Ethics of Consent: Theory and Practice (Oxford, Oxford University Press, 2009) 163–92. ——. ‘Victimless Crimes’ in H LaFollette (ed), International Encyclopedia of Ethics (Chichester, Wiley, 2013) 5329–37. ——. ‘Sex, Lies, and Law: Rethinking Rape-by-Fraud’ in C Ashford, A Reed and N Wake (eds), Legal Perspectives on State Power: Consent and Control (Newcastle, Cambridge Scholars Publishing, 2016) 152–84. Chacon, JM, ‘Misery and Myopia: Understanding the Failures of US Efforts to Stop Human Trafficking’ (2006) 74 Fordham Law Review 2977. Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking Human Beings, Council of Europe Treaty Series – No 197 (Warsaw, Council of Europe, 2005). Dan-Cohen, M, ‘Basic Values and the Victim’s State of Mind’ (2000) 88 California Law Review 759. Dubber, M, ‘Toward a Constitutional Law of Crime and Punishment’ (2004) 55 Hastings Law Journal 509. Duff, RA, ‘Harms and Wrongs’ (2001) 5 Buffalo Criminal Law Review LR 13. Feinberg, J, The Moral Limits of Criminal Law: Harm to Others (New York, Oxford University Press 1984). ——. The Moral Limits of the Criminal Law: Harmless Wrongdoing (New York, Oxford University Press 1988). ——. The Moral Limits of Criminal Law: Harm to Self (New York, Oxford, 1989). Gibson, M, ‘Rationality’ (1977) 6 Philosophy & Public Affairs 193. Hart, HLA, Law, Liberty, and Morality (Palo Alto, Stanford University Press, 1963). Herring, J, ‘Mistaken Sex’ [2005] Crim LR 511. Herzog, D, Happy Slaves: A Critique of Consent Theory (Chicago, University of Chicago Press, 1989). Hill, JL, ‘Exploitation’ (1994) 79 Cornell Law Review 631. Hohfeld, WN, Fundamental Legal Conception as Applied in Judicial Reasoning and Other Legal Essays (New Haven, Yale University Press, 1923). Katz, L, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago, University of Chicago Press 1987). McLaughlin, P, ‘The Ethics of Exploitation’ (2008) 1(3) Studia Philosophica Estonica 5. Oxford American Desk Dictionary & Thesaurus (Oxford, Oxford University Press, 2010).

216  Vera Bergelson Roberts, P, ‘Philosophy, Feinberg, Codification, and Consent: A Progress Report on English Experiences of Criminal Law Reform’ (2001) 5 Buffalo Criminal Law Review 173. Shipley, WE, ‘Annotation: Consent as Defence to Charge of Criminal Assault and Battery’ (2005) 56 American Law Reports Annotated, Third Series 662. Thomson, JJ, The Realm of Rights (Cambridge, MA, Harvard University Press, 1990). United Nations Office on Drugs and Crime (UNODC), Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (New York, United Nations, 2004). ——. Model Law against Trafficking in Persons (Vienna, United Nations, 2009). ——. Abuse of a Position of Vulnerability and Other ‘Means’ within the Definition of Trafficking in Persons (New York, United Nations, 2013). ——. The Role of ‘Consent’ in the Trafficking in Persons Protocol (Vienna, United Nations, 2014). West, RL, ‘The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory’ (1987) 3 Wisconsin Women’s Law Journal 81. Wright, RG, ‘Consenting Adults: The Problem of Enhancing Human Dignity Non-coercively’ (1995) 75 Boston University Law Review 1397.

12 Limiting the Criminalisation of Human Trafficking Protection Against Exploitative Labour versus Individual Liberty and Economic Development PIET HEIN VAN KEMPEN AND SJARAI LESTRADE

I. INTRODUCTION

H

uman trafficking takes place all over the world. It flourishes because of the gap between rich and poor countries.1 The assumption is that the phenomenon will expand even more, as a result of increasing globalisation,2 and the millions of refugees that flee wars in several parts of the world. Human trafficking is sometimes referred to as modern-day slavery. It involves the exploitation of human beings. This is a grave crime that is considered a breach of persons’ individual liberty (relative to their physical wellbeing, autonomy and self-determination) and of their physical and mental integrity, as well as their dignity.3 There are no precise figures or perhaps even reliable

1 KF Aas, Globalization and Crime (London, SAGE Publications, 2007) 40; S Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford, Oxford University Press, 2008) 12–16; T Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (Leiden, Martinus Nijhoff Publishers, 2006) 122–24; L Arocha, ‘Theoretical Perspectives on Understanding Slavery: Past and Present Challenges’ in G Wylie and P McRedmond (eds), Human Trafficking in Europe: Character, Causes and Consequences (Basingstoke, Palgrave Macmillan, 2010) 37. 2 Europol and Interpol, Joint Europol-Interpol Report, Executive Summary, Migrant Smuggling Networks (Europol and Interpol, 2016) 4; European Commission, Report on the Progress Made in the Fight against Trafficking in Human Beings (2016) as Required under Article 20 of Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims [SWD(2016) 159 final] (Brussels, European Commission, 2016) 15–17. See also L Shelley, Human Trafficking: A Global Perspective (Cambridge, Cambridge University Press, 2010) 4. 3 For example, see Preamble to the European Convention on trafficking; Consideration 3 of the EU Framework Decision on Trafficking; ECtHR 7 January 2010, Rantsev v Cyprus and Russia, App No 25965/04, para 276 and 282; C Rijken, ‘A Human Rights Based Approach to Trafficking in Human Beings’ (2009) 20 Security & Human Rights 212, 215.

218  Piet Hein van Kempen and Sjarai Lestrade approximations, but estimates run into the many millions.4 The increase in trafficking in human beings thus manifests itself as an urgent and serious problem, and the responsibility to counter it is borne by states. Notwithstanding their moral and legal obligations to combat human trafficking, securing the economy and sufficient availability of jobs is also an important responsibility of states. Repression of human trafficking through offences that are defined too broadly may unnecessarily hinder economic development and trade, particularly so in the case of criminalisation of labour conditions that are not by definition wrongful. Moreover, such criminalisation may undesirably over-protect migrants against trafficking, as a result of which they are prevented from finding a better working life elsewhere in the world. Thus, a person’s liberty can be interfered with through both human trafficking and the criminalisation thereof. This contribution elaborates on this dilemma: criminalisation of human trafficking versus individual and national economic development. The focus on countering the phenomenon of trafficking has become stronger since the adoption of the 2000 United Nations Trafficking Protocol (hereinafter the Palermo Protocol),5 the 2002 EU Framework Decision on Trafficking,6 the 2005 European ­Convention on Trafficking in Human Beings (hereinafter European Convention on ­Trafficking)7 and the 2011 EU Directive on Trafficking.8 Although these international legal instruments provide examples of practices that fall under human trafficking, none of them explicitly defines human trafficking. Even the most important element, exploitation or the purpose thereof, is not delineated any further. The instruments only indicate what exploitation shall include at a minimum; that is, primarily slavery, servitude and forced labour. Apart from the anti-trafficking instruments, slavery, servitude and forced labour are also the focus of the human rights in Article 8 of the 1966 International Covenant on Civil and Political Rights (ICCPR)9 and Article 4 of the 1950 European Convention on Human Rights (ECHR).10 Obligations to criminalise labour exploitation also follow from these provisions. However, neither of them contains an express definition of exploitation. It is thus not clear to what extent labour exploitation falls or should fall within the scope of the aforementioned international trafficking instruments and human rights provisions. While it is certain that slavery, servitude and forced labour restrict individual liberty, it remains vague if all other forms of exploitation also always entail a curtailment 4 For example, the International Labour Organization estimates the total number of victims of trafficking in 2012 at 20.9 million worldwide; see International Labour Organization, Summary of the ILO 2012 Global Estimate of Forced Labour, www.ilo.org/global/topics/forced-labour/publications/WCMS_181953/lang--en/ ­ index.htm, 1. See also the chapter by Albrecht in this volume. 5 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000, 2237 UNTS 319. 6 Council Framework Decision of 19 July 2002 on combating trafficking in human beings 2002/629/JHA, [2002] OJ L203/1, 1 August. 7 Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 16 May 2005, CETS 197. 8 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1, 15 April. 9 19 December 1966, 999 UNTS 171. 10 4 November 1950, 213 UNTS 222; ETS 5.

Limiting the Criminalisation of Human Trafficking  219 of such liberty. If this is the case, what encompasses this liberty and how can it be reduced? Furthermore, is the exploitation involved in the curtailment of this liberty such that any form of it should be a criminal offence or is there room to take other interests into ­consideration as well? Do the aforementioned instruments and human rights take economic development and the individual freedom of choice into account? Where do unfair or improper labour conditions and engagements less intensely interfere with liberty than the criminalisation thereof? In this chapter, we will pursue these questions in greater depth. The primary question this chapter examines is: are the international obligations to criminalise labour exploitation well balanced, considering the importance of combating exploitation, on the one hand, and the interest in individual and national economic development and in individual freedom of choice, on the other hand? To that end, we will discuss exploitation, first in a more theoretical framework regarding negative and positive liberty in section II, second according to international human trafficking instruments in section III, and finally on the basis of Article 8 ICCPR and Article 4 ECHR in section IV. Section V will then examine whether individual and national economic development is considered to be a relevant factor under these international human trafficking instruments and human rights provisions. Finally, a synthesising and concluding assessment is offered in section VI. There we argue that consensual, mutually advantageous, exploitative labour and labour that is not exploitative as such should not be regarded as human trafficking and should therefore not fall within general human trafficking offences. II.  THEORETICAL JUSTIFICATION FOR THE CRIMINALISATION OF LABOUR EXPLOITATION

With a view to discussing the international obligations to criminalise labour exploitation, we will first offer a theoretical analysis on the meaning of exploitation. We will subsequently consider when acts do or do not limit the negative or positive liberty a person already possesses. We also assess when there are sound theoretical justifications to ­criminalisation of labour exploitation and when this is much less the case. A.  Factors of Exploitation: Outcome and Process It is difficult to provide a general but exact definition of exploitation, something which is illustrated by the lack of a definition in the aforementioned international instruments. In general, exploitation refers to the action or fact of taking advantage of something or someone in an unfair or unethical manner.11 However, a problem caused by such a broad and vague definition is that many agreements that are acceptable in normal economic life and under contract law may still be qualified as ‘exploitative’. Wertheimer and Zwolinski distinguish different elements of exploitation that help to specify the definition. First, taking an unfair advantage can refer to the outcome of the exploitative act. In this respect, the act may be substantively unfair because of (1) the benefit to the exploiter and (2) the



11 According

to the Oxford English Dictionary (www.oed.com).

220  Piet Hein van Kempen and Sjarai Lestrade effect on the exploitee. Second, the unfair advantage can point to a defect in the process by which the unfair outcome has come about.12 An important implication of the first element – ie, the benefit to the exploiter – is that one cannot take an unfair advantage of the exploitee (B) unless one gets at least some advantage from B. Wertheimer and Zwolinski emphasise the relevance of this element by comparing it with other forms of wrongdoing such as discrimination and oppression. For example, A discriminates against B, by refusing to hire B solely because of B’s race. It would be odd to say that A exploits B, for A does not gain from the wrong done to B. Or consider oppression: suppose A oppresses B by hitting him. If A does not gain from his action, the oppression is still wrong, but not exploitative. However, meeting the first element cannot yet justify the qualification of an act as exploitative. If only an unfair advantage over another person would amount to exploitation, there would be innumerable exploitative agreements. For example, under such a definition, a shop owner would be exploitative if he sold a rich man an expensive suit while that man could have bought an identical suit for much less in another store. The rich man’s free choice to make the purchase and the positive effect that the purchase may have on him imply that no exploitation is involved here, even though the seller’s price might be deemed unfair. Apparently, other factors are also of importance here: whether the act affects the exploitee and whether the realisation process is flawed. Of course, this raises many further questions, such as the following. Can there be exploitation if the (trafficking) act does not negatively affect the (trafficked) person’s liberty? Which defect in the process makes an agreement an exploitative agreement: is it, for example, relevant whether the agreement is a result of force, threat, offer or request? Does free consent to severely unfavourable labour conditions or engagements by definition mean that no exploitation is involved? The following subparagraphs will go deeper into those issues, for the purpose of which it is useful to elaborate on the distinction between negative and positive freedom and its restrictions. B.  Negative and Positive Freedom Negative liberty entails the freedom to act without hindrance and interference from others.13 If a person is free to work or to sit still, this constitutes negative liberty. ­Circumstances other than human interactions – such as forces of nature, one’s own inability or lack of resources – do not restrict liberty in this sense. According to Berlin, negative freedom is the opportunity to act, rather than the action itself.14 If someone is free to take on labour, but unfit to work as a result of which labour cannot be performed, this

12 M Zwolinski and A Wertheimer, ‘Exploitation’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (https://plato.stanford.edu), para 3. 13 I Berlin, ‘Two Concepts of Liberty (1958)’ in Henry Hardy (ed), Isaiah Berlin, Liberty (Oxford, Oxford University Press, 2002) 169–78. Although this does not affect the manner in which we use Berlin’s distinction between negative and positive liberty for our analyses and arguments, we note that the distinction has been ­challenged. For example, GC MacCallum, Jr , ‘Negative and Positive Freedom’ (1967) 76 Philosophical Review 312 argues forcefully that all claims about freedom have the following structure: x is (is not) free from y to do (not do, become, not become) z. 14 I Berlin, ‘Introduction (1969)’ in Hardy (ed), Isaiah Berlin, Liberty (2002) 35.

Limiting the Criminalisation of Human Trafficking  221 in principle does not interfere with that person’s negative liberty. However, for example, performing labour under violent coercion does constitute a restriction of negative liberty, as here others interfere with the freedom to sit still or do other work. It follows from the above that a distinction must also be made between the freedom itself and the conditions under which this freedom is meaningful15 – for example, a situation where someone is free to take on a job (full negative liberty), but the market is such that the job is not available (conditions which make that liberty de facto meaningless). Negative liberty that one cannot enjoy because of a lack of income, health, knowledge or skills can be made more valuable by political intervention. For example, the government can provide education to increase the chances of good employment, set standards for working conditions and remuneration in order to improve the quality thereof and implement policies to secure adequate jobs for everyone. This may make the negative freedom to take on labour more meaningful, but the conditions for this freedom should not be confused with the freedom itself. Furthermore, sacrificing negative freedom for other values (equality, fairness, humanity) at all times, no matter how moral, pure or urgent the reasons may be, involves a restriction of freedom, even if the infraction leads to an increase of the sum of liberty.16 This is where the concept of positive liberty comes to the fore. Positive freedom is about the capacity to act upon one’s free will and it is advanced where a person is able to do or to be something that he or she previously could not do or could not be.17 It is often compared to autonomy.18 Autonomy literally means ­self-ruling/ governing. Positive freedom or autonomy has at least two different dimensions: selfdetermination and self-realisation. Self-determination means that persons are free when their actions are based on their own decisions and choices that are not the result of external and internal forces that are independent of their will. Self-realisation indicates that persons are free if they are able to develop their own skills, talents or abilities, or to make the best of themselves. The two dimensions are closely related: self-determination is only possible if one somehow has control over one’s own life. Moreover, persons can only act autonomously if they have developed themselves to some extent. Positive freedom not only requires that the acting person has the ability to decide rationally, but in general it also demands that he or she uses that capacity.19 Although positive freedom is as such a legitimate reputable value, it is also inherently problematic. The advancement of positive liberty by the state can degenerate into a totalitarian theory which dictates what a decent life is (an idea of the ‘true’ freedom) and in which the government explicitly interferes with social life. Also, even if the consequences of advancing positive liberty are much less drastic, such advancement may still limit negative liberty. If a government sets a statutory minimum wage or requires a permit

15 Berlin, ‘Introduction (1969)’ (2002) 45-46. 16 Berlin, ‘Two Concepts of Liberty (1958)’ (2002) 172–73 and 194–95. 17 Berlin (n 14) 168–69, 178-181 and 187–91. 18 See, eg, I Carter, MH Kramer and H Steiner (eds), Freedom: A Philosophical Anthology (Malden, MA, Blackwell Publishing, 2007) 323 and 333. For a more nuanced approach, see G Dworkin, The Theory and Practice of Autonomy (Cambridge, Cambridge University Press, 1988) 18 and 20; J Feinberg, Social Philosophy (Englewood Cliffs, NJ, Prentice Hall, 1973) 16. 19 SI Benn, A Theory of Freedom (Cambridge, Cambridge University Press, 1988) 170–71.

222  Piet Hein van Kempen and Sjarai Lestrade for certain work with a view to increasing positive liberty in society as a whole, this will still also limit an individual’s choices to work below the minimum wage or to shine shoes on the street without the required permit. Apart from limiting that person’s negative liberty, this may even curtail that person’s positive liberty, for he or she is hindered in building up his or her capacities and striving for a better life, most severely so if these acts are criminalised. C.  Human Trafficking and Negative Freedom: Coercion versus Offers Coercion of people to make them work entails a violation of their liberty. It is useful to distinguish between occurrent coercion (direct) and dispositional (indirect) coercion.20 Occurrent coercion concerns the direct application of physical force against a particular person to make him or her perform certain acts or behave in certain ways. In that case, a person’s negative liberty is directly limited. Dispositional coercion can be present, for example, if X by threatening harm forces Y to do A. Interestingly, in that case, Y’s behaviour is to a certain extent voluntary (he could still have chosen not to do A). In a somewhat different way, this also applies in the case of deception, as a result of which Y thinks that he must do A or cannot do B and therefore does A, although Y actually could have chosen not to do A or to do B. Also, in the case of both threat and deception, there is a restriction of negative liberty, since X has intentionally acted to curtail Y’s freedom of choice to either do A or not. An offer – for example, to do severely under-paid, very dangerous, dirty labour – neither constitutes indirect coercion nor an infringement of negative liberty. According to Nozick, the difference between an offer and a threat has to do with the consequences of performing an act in comparison to the normal and expected course of events. If the consequences of the action are worse than they would be in the normal and expected course of events, it is a threat; if the impact is better, it can be seen as an offer.21 If someone does something because of a threat, then the will of the other person is dominant. If someone does something because of a proposal, then the will of the other person is not dominant. In conclusion, in the negative concept of freedom, freedom can only be limited through coercion, not through an offer. D.  Human Trafficking and Positive Freedom: Coercive Offers and Unfair Use of Circumstances Acts that do not interfere with negative liberty are in principle not about restriction of positive liberty as such either, as they do not necessarily injure the ability of a person to utilise negative liberty or to enhance his or her ability to do so. Can such acts then

20 MD Bayles, ‘A Concept of Coercion’ in JR Pennock and JW Chapman (eds), NOMOS XIV: Coercion (Chicago, Aldine-Atherton, 1972) 23. 21 R Nozick, ‘Coercion’ in P Laslett, WG Runciman and Q Skinner (eds), Philosophy, Politics and Society: Fourth Series (Oxford, Basil Blackwell, 1972) 112; see also Carter, Kramer and Steiner, Freedom: A ­Philosophical Anthology (2007) 252.

Limiting the Criminalisation of Human Trafficking  223 still amount to human trafficking, considering that human trafficking prospers thanks to shortcomings in the ability of people to perform a certain action or make a certain choice? Egalitarians associate freedom with ability and the lack of freedom with inability. In that view, any obstacle to the performance of an action constitutes a restriction on the freedom to perform that action, including interference by others, a lack of internal capacities (such as knowledge and skills) and disagreeable external circumstances (such as inadequate economic and social resources).22 Perhaps a person is ‘legally’ or ‘theoretically’ free to work for anyone, but the circumstances may compel him or her to work for a particular employer. Natural rights do not necessarily correspond with actual effective powers.23 Someone who chooses to work for another on pain of starvation was not ‘free’ in this approach of liberty.24 Zimmerman even argues that offering a badly paid job to an unemployed person can be seen as a coercive offer. He holds that a wage offer is coercive if and only if: (1) employees strongly prefer an alternative pre-proposal to the actual wage offer, and the alternative proposal is technologically and economically feasible when the offer is made; and (2) capitalists prevent employees from having at least one of these feasible alternative pre-proposal situations.25 However, even such an offer is inherently about making use of restrictions of the positive freedom of the employees and not about restricting that freedom as such. It is thus not coercive in the sense of limiting the liberty a person already enjoys. In another view, human trafficking can prevent positive liberty from actually becoming available to a person, but in principle again without limiting the positive liberty that the person already has. Gorr is of the opinion that certain offers can be exploitative on the ground of misuse of a person’s inability or misuse of circumstances.26 Incapacity exploitation is possible if someone accepts an offer because he or she is unable or incapable to make a sufficient rational and informed choice about the terms of the offer. Circumstantial exploitation is possible when the offerer takes advantage of external circumstances in which another person finds himself or herself. Where coercers are typically makers of opportunities, exploiters are typically opportunists.27 The question now is what makes an offer unjust. Lyons argues that exploitative offers contain an exchange in which both parties are better off, but in a very dishonest way.28 The question remains when exactly it is unfair to gain a certain advantage. Gorr therefore provides the following principle: ‘P is morally obligated to render assistance to Q, a person who is in a state of necessity through no fault of P’s, whenever he can do so by performing an act which, taking into account any expected compensation, will involve no more than a minimal worsening of his position compared to what it would have been had he provided no assistance at all. For providing such assistance P is (ordinarily) allowed to charge only what is

22 Carter, Kramer and Steiner (n 18) 353. 23 GA Cohen, Self-Ownership, Freedom and Equality (Cambridge, Cambridge University Press, 1995) 34–37; and Carter, Kramer and Steiner (n 18) 280. 24 Cohen, Self-Ownership, Freedom and Equality (1995) 53. 25 D Zimmerman, ‘Coercive Wage Offers’ (1981) 10 Philosophy & Public Affairs 121, 144–45. 26 MJ Gorr, Coercion, Freedom and Exploitation (New York, Peter Lang, 1989) 153. 27 Gorr, Coercion, Freedom and Exploitation (1989) 153, with reference to J Feinberg, ‘Noncoercive ­Exploitation’ in R Sartorius (ed), Paternalism (Minneapolis, University of Minnesota Press, 1983) 208. 28 Gorr (n 27) 155, with reference to D Lyons, ‘Welcome Threats and Coercive Offers’ (1975) 50 Philosophy 425, 428.

224  Piet Hein van Kempen and Sjarai Lestrade necessary to prevent more than his minimal worsening of his own position.’29 According to Gorr, the person who proposes an exploitative offer does not force another to accept the offer. He does not infringe the freedom of another. He also has not ‘got’ more than he has given. The proposal is exploitative because he has not done as much for the other as he ought to have done.30 So, in cases where persons are employed under seriously unfavourable working conditions, this may exploitatively prevent positive liberty from becoming available to someone. E. Exploitation Where a person is put to labour under coercion (physical force or threat), this will always amount to a violation of negative liberty. In such cases, human trafficking constitutes a breach of the personal liberty of individuals, which can be seen as a foundation of the criminalisation of human trafficking. Even if working conditions and remunerations are not exploitative as such, coercing someone to work is such a wrong that the criminalisation thereof is no more problematic than any other criminalisation. That it might be desirable or even acceptable to criminalise acts – such as having people work under unfavourable working conditions and engagements – is much more difficult to explain when no violation of negative liberty is involved. This is typically the case when the employer made an offer or the employee made a request for the work. Since this increases the employee’s number of actual choices, his or her liberty is even broadened in that respect. Here the justification of criminalising human trafficking cannot lie in the interest of negative liberty of individuals, although it might still be possible to find that justification in the need to advance positive liberty or to protect a person’s physical and mental integrity and dignity. In this respect, it may be particularly decisive if the act must be qualified as exploitative. To that end, it seems useful to distinguish between harmful exploitation and mutually advantageous exploitation. Harmful exploitation occurs when the exploitee is worse off with the exploitative transaction than without it.31 This manifests itself when an exploitee under force, threat or deception takes on labour under exploitative conditions or remuneration that he or she would have declined otherwise under otherwise similar circumstances. Such situations entail interference with negative liberty. This is not the case when someone freely, though on the basis of a poor decision, accepts to perform labour under exploitative conditions or for exploitative wages. Still, this could be qualified as harmful exploitation if that person would be better off without that employment. With a view to protecting a person’s physical and mental integrity and dignity, it may be acceptable to criminalise the harmful exploiter. However, if a person is fully aware of the disadvantages of such harmful exploitative labour and of possible alternatives to this work, yet still chooses to accept it, the exploitee cannot be said to be worse off relative to what he or she apparently wants. In that case, criminalisation is much more problematic, for it interferes with the



29 Gorr

(n 27) 163. 164. 31 Zwolinski and Wertheimer, ‘Exploitation’ (2016) para 2.2. 30 ibid

Limiting the Criminalisation of Human Trafficking  225 negative liberty of both the alleged exploiter (liberty to offer the work) and the alleged exploitee (liberty to do the work). In such cases, harmful exploitation may overlap with the following. In cases of mutually advantageous exploitation, the exploiter (A) as well as the exploitee (B) gain from the transaction.32 It leaves both parties better off. If the benefits to B from employment are greater than the costs to B, then employment is beneficial to B, all things considered. However, as exploitation amounts to taking advantage in an unfair or unethical manner, even though B is better off, the employment may still be exploitative because the distribution of the benefits between A and B is unfair. B may have to invest too much for what he or she gains. For example, if A proposes to carry out a lifesaving operation for an extortionate price and B has no alternative other than to accept in order to avoid death, this mutually advantageous proposal is still exploitative. The same applies if B accepts an offer to perform extremely hard labour at a very low wage, without which he or she will most probably die of starvation. This also means that not all proposals to persons who are in a vulnerable situation are exploitative. Person A could have proposed to perform a life-saving operation at a fair price or offer a job paying a fair wage. Since these transactions would not be unfair as such, it is hard to argue that they are exploitative. What exactly makes a mutually advantageous transaction unfair? The fairness of a transaction cannot be evaluated solely by comparing the gains of the parties. Again, take the example of the employer who offers a job of extremely hard labour at a very low wage, without which the employee will most probably die of starvation: the exploitee will save himself or herself from that fate by accepting the job and the employer will receive labour that is worth less than a life. The employer (exploiter) is not dependent on the transaction, whereas the employee (exploitee) has everything to gain and actually has no alternative. The fairness of the transaction can be measured against a normative baseline as to how much the parties at least ought to gain.33 What would the parties have received under relatively perfect market conditions? Of course, it is not feasible to determine this exactly. However, we assume that it can still be clear that a mutually advantageous transaction deviates to such an extent from what could still be considered a ‘fair market value’ that it is fairly unproblematic to qualify it at least as unfair in this sense. A further question now is whether an unfair transaction is always exploitative or only if there is some defect in the process that triggers the ‘exploitee’s decision’ to accept the offer.34 It can very well be argued that the process is indeed a decisive factor in assessing whether exploitation occurs. For example, someone who works full time in a home for the elderly has knowingly and intelligently agreed to do the work voluntarily: since the labour is performed without pay, the transaction could be qualified as unfair from the ‘fair market value’ perspective. However, it would be anomalous to argue that this is a case of exploitation. This even seems to apply if the volunteer had preferred to do the work for a wage and the elderly home had been able to pay a wage. Therefore, the fact that a transaction is ‘market value’ unfair does not necessarily mean that it also c­ onstitutes 32 ibid. 33 See the older version of M Zwolinski and A Wertheimer, ‘Exploitation’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (https://plato.stanford.edu), para 3. 34 Zwolinski and Wertheimer (n 12) para 2.3.

226  Piet Hein van Kempen and Sjarai Lestrade exploitation. For that reason, it is useful to look at the outcome of the transaction and to assess whether there is a defect in the process of the transaction as well. As follows from the foregoing, a procedural defect manifests itself in situations of direct coercion, for example, if someone is physically forced to do certain work. The same applies relative to threat. So, for instance, exploitation occurs if A makes B do underpaid, dirty work (exploitative outcome) under threat of harming B’s family (procedural defect). B only consents because of the threat. Similarly, deception may affect the validity of consent to a transaction, as it may mean that the under-paid and filthy work (outcome) was not accepted sufficiently knowingly and intelligently (process). Valid consent must be informed (or not misinformed) as well as unforced (no coercion or threat).35 F. Conclusion If the outcome is essentially unfair and the process is essentially flawed, a transaction relative to labour will qualify as exploitative. Only then can criminalisation of the exploiter be based on the interest of protecting someone’s personal negative liberty. No limitation of the exploitee’s negative or positive liberty is present in situations where there is no coercion, threat or deception (no procedural defect), only an accepted offer to perform exploitative labour, ie, seriously aggravating labour for unjust remuneration or benefits (unfair outcome). Here, the protection of individual negative liberty therefore cannot justify criminalisation of the exploiter. However, employing persons under seriously unfavourable working conditions or engagements may prevent their positive liberty from becoming available to them. Moreover, exploitative labour may be detrimental to a person’s physical or mental integrity or dignity. The question is thus whether the international trafficking instruments and the human rights prohibitions of slavery, servitude and forced labour are limited to situations where negative liberty is at stake or whether these also apply to consensual, mutually advantageous, exploitative labour. III.  EXPLOITATION AND CONSENT ACCORDING TO INTERNATIONAL HUMAN TRAFFICKING INSTRUMENTS

A global definition of trafficking has first been given in the Palermo Protocol.36 The ­European trafficking instruments that were drawn up afterwards (inter alia, the European Convention on Trafficking and the EU Directive on Trafficking) adopted the definition of the Palermo Protocol. The human trafficking definition in these instruments boils down to the recruitment of another person by using a means of influence for the purpose of exploitation. The definition thus holds three cumulative requirements: (1) an action of recruitment (ie, ‘recruitment, transportation, transfer, harboring or receipt of persons’); (2) the use of a means of influence (ie, ‘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



35 ibid. 36 See

art 3.

Limiting the Criminalisation of Human Trafficking  227 v­ ulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person’); and (3) the purpose of exploitation.37 The definition implies that human trafficking is about both the process prior to exploitation (the recruiting phase) and the result itself (the exploitation phase). For example, the manager who exploits a staff member can be guilty of human trafficking, for he has received the victim into his company with a purpose of exploitation (assuming there is also a means of influence). Even where the employer was not involved in the recruitment process, but whose only concern was the end result (recruitment), this can amount to human trafficking on his part. If a non-exploitative work environment changes into an exploitative work environment, this can also constitute human trafficking because it can be argued that the victim has been received using a means of influence with the aim of exploitation.38 The international instruments do not further define or explain the meaning of the elements of the definition. This also applies to the most essential element: exploitation. However, the instruments do state what falls under human trafficking at any rate: ‘Exploitation shall include, 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.’39 Yet, the boundaries of the phenomenon are not delineated. The preparatory documents of the European Convention on Trafficking also contain only limited explanations of just a few elements. Meanwhile, consent to intended or actual exploitation is irrelevant according to the international instruments where means stated in the definition have been used, ie, 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. Here the most important question is how ‘the abuse of power or of a position of vulnerability’ is interpreted.40 Taken literally, this clause would mean that the obligations in the human trafficking instruments do not have to be applied in cases of ‘use’ of ‘a position of vulnerability’ that do not constitute ‘abuse’ of that position if the vulnerable person – in our view, knowingly and intelligently – agrees to perform the exploitative labour. Thus, much depends on the interpretation of ‘abuse’. When an employer hires vulnerable people to perform exploitative labour, does this by definition amount to abuse of their vulnerability? If so, the vulnerable person’s consent to do the work would be ­irrelevant, as a result of which exploitative labour undertaken by vulnerable persons would always fall within the scope of the criminalisation.

37 See art 3(a) of the Palermo Protocol, art 4(a) of the European Convention on Trafficking and art 2(1) of the EU Directive on Trafficking. 38 See also AT Gallagher, The International Law of Human Trafficking (New York, Cambridge University Press, 2010) 30–31. See differently JC Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Virginia Journal of International Law 1, 10: ‘There is, in consequence no obligation flowing from the Trafficking Protocol to do anything about the condition of being exploited, much less to provide a remedy to exploited persons.’ However, the recruitment conducts ‘harbouring’ and ‘receipt’ seems to us to indicate a different reading. 39 Article 2(3) of the EU Directive also includes ‘begging’ in the non-limitative list. 40 See art 3(b) of the Palermo Protocol, art 4(b) of the European Convention on Trafficking and art 2(4) of the EU Directive on Trafficking; see also the chapter by Bergelson in this volume.

228  Piet Hein van Kempen and Sjarai Lestrade Indeed, there are clear indications that even if there is genuine consent to perform labour under exploitative conditions and for exploitative remuneration, often it must still be assumed that there is ‘abuse of a position of vulnerability’. According to the Travaux Préparatoires to the Palermo Protocol as well as the Explanatory Report to the European Convention on Trafficking, the abuse of a position of vulnerability is understood to refer to ‘any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved’.41 An example of this is ‘abusing the economic insecurity or poverty of an adult hoping to better their own and their family’s lot’.42 Clearly, the decisive factor for the element of abuse is not how the situation was used, but the very fact that it was used at all. As a result, use is practically equivalent to abuse. Consequently, the use of a labourer who knowingly and intelligently opts to do the exploitative work will easily amount to abuse. This is particularly so since vulnerability is also understood broadly, including ‘insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited’.43 Due to an apparently required broad interpretation of both ‘abuse’ and ‘vulnerability’, even genuinely consensual, mutually advantageous, exploitative labour will easily satisfy the definition of human trafficking, to which, for example, obligations to criminalise apply. Where this is the case, the trafficking instruments apply to exploitative labour that does not involve an infringement of negative liberty. In fact, the instruments here themselves limit vulnerable labourers’ negative liberty, ie, their freedom of choice. IV.  EXPLOITATION AND CONSENT ACCORDING TO ARTICLE 8 ICCPR AND ARTICLE 4 ECHR

Obligations to criminalise labour exploitation not only follow from the international trafficking instruments, but such duties are also based on the human right to freedom from slavery, servitude and forced labour in Article 8 ICCPR and Article 4 ECHR. It is therefore relevant which meaning ‘exploitation’ and ‘consent’ have under these­ provisions. A.  Definition of Slavery, Servitude and Forced Labour: Infringement of Negative Liberty Article 8 ICCPR and Article 4 ECHR entail the prohibition of slavery, servitude and forced labour. These provisions do not contain a further explanation of these concepts. 41 UNODC, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (New York, United Nations, 2006) 347; Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (Strasbourg, Council of Europe, 2005) no 83; see also no 97, where the explanation somewhat cryptically implies that there can be ‘consent’ and ‘free will’ to perform exploitative labour, but since it is not simple and not easy to determine where free will ends and constraint begins, there is trafficking in human beings whether or not the victim consents to be exploited. 42 Council of Europe, Explanatory Report to the Council of Europe Convention (2005) no 84. 43 Council of Europe (n 42) no 83.

Limiting the Criminalisation of Human Trafficking  229 The preparatory documents of the ICCPR refer for definitions to, respectively, the Slavery Convention 1926,44 the Supplementary Slavery Convention 195645 and the ILO Forced Labour Convention 1930.46 When interpreting Article 4 ECHR, the European Court of Human Rights (ECtHR) also adopts the definitions of these conventions.47 Slavery is thus defined as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.48 Here, slavery clearly entails curtailment of the personal freedom of the victim. This also applies if one argued that in order to determine slavery, it is not de jure ownership that is decisive, but de facto ownership.49 Also, servitude (or serfdom) by definition implies interference with individual liberty: ‘the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status’.50 Finally, forced or compulsory labour concerns ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.51 Labour that is genuinely involuntary and forced by definition interferes with the individual’s liberty. It is therefore crucial when labour must be regarded compulsory while it is still voluntary. A broad interpretation of compulsion and a narrow interpretation of voluntariness could bring consensual, mutually advantageous, exploitative labour within the scope of the forced labour prohibition, in which case that prohibition would interfere with the labourer’s negative liberty. The case law of the European Court in particular offers further insight in relation to these notions. B.  Consent and the ‘Considerable and Unreasonable Imbalance’ In the Van der Mussele case, the European Court first of all clarifies that the notion of ‘labour’ for the purposes of Article 4(2) ECHR has a broad meaning, which is not limited to only manual work but also includes other work as well as services.52 The Court 44 Geneva, 25 September 1926, 60 LNTS 254. 45 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Geneva, 7 September 1956, 266 UNTS 3. 46 Convention concerning Forced or Compulsory Labour, Geneva, 28 June 1930, ILO Convention no 29. See, eg, M Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (Kehl, NP Engel Publisher, 2005) 198 (slavery), 200 (servitude) and 201 (forced labour); United Nations Secretary General, Annotations on the Text of the Draft International Covenants on Human Rights, UN Doc A/2929 (New York, United Nations, 1955) 33, no 17 (slavery) and no 19 (forced labour); S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford, Oxford University Press, 2013) 330 (servitude). 47 See, eg, ECtHR 26 July 2005, Siliadin v France, App No 73316/01, para 122 (slavery), paras 123–25 ­(servitude) and para 117–18 (forced labour); ECtHR 11 October 2012, CN and V v France, App No 67724/09, para 89 (servitude) and para 71 (forced labour); ECHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 32 (forced labour). 48 Article 1(1) of the Slavery Convention 1926. 49 cf J Allain and K Bales, ‘Slavery and its Definition’ (2012) 14 Global Dialogue 1. 50 Article 1(b) of the Supplementary Slavery Convention 1956. 51 Article 2 of the Convention concerning Forced or Compulsory Labour. 52 ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 32; see also ECtHR 26 July 2005, Siliadin v France, App No 73316/01, para 116; ECtHR 11 October 2012, CN and V v France, App No 67724/09, para 71.

230  Piet Hein van Kempen and Sjarai Lestrade furthermore explains the meaning of ‘forced or compulsory’ labour. Although the term is broader than only ‘physical or mental constraint’, it does not refer only to ‘any form of legal compulsion or obligation’. The Court states that ‘work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise’.53 ­Furthermore, the type and amount of work involved can also be relevant when determining if labour is ‘forced or compulsory’. Generally accepted work or ‘normal civic obligations’54 will therefore not soon qualify as such. For example, a helping hand which can reasonably be expected of other family members or people sharing accommodation does not qualify as such either.55 Only labour exacted ‘under the menace of any penalty’ for which the labourer ‘has not offered himself voluntarily’ falls within the scope of the prohibition of ‘forced or compulsory’ labour.56 That penalty does not have to be of a criminal law nature.57 In fact, the labourer does not have to be threatened with a real penalty at all, provided that he or she is put in an equivalent situation in terms of the perceived seriousness of the threat.58 This condition was met in the case of Siliadin, which concerned an adolescent girl in a foreign state who was unlawfully present in that state and in fear of arrest by the police, a fear which was nurtured by the people who made her work as their unpaid housemaid and who led her to believe that her status would be regularised. Although the term ‘penalty’ is given a broad meaning, at least some form of physical or psychological threat or coercion must thus be present in order to meet the penalty requirement. However, as such, this does not yet imply a restriction of negative liberty, as it is possible that the labourer consented to the penalty, as is the case in many jobs where there may be a threat of dismissal, demotion or some kind of retaliation. Although both the compulsory nature of the labour (under threat of a penalty) and the involuntary nature of the labour (not offered voluntarily) can be inter-connected, the criteria have to be examined separately. Involuntary performed labour relates to the labourer, whereas the element of constraint relates to the offender.59 For the labour to qualify as involuntary, the labourer does not have to indicate that the work is against his or her will; this can also follow from the facts of a case, for example, because it is clear that he or she is not given any choice.60 Even prior consent does not by itself imply that the consenting person offered himself voluntarily, according to the Court.61 Only relative weight is to be attached to prior consent; regard must be taken to other factors as well. Crucial in this respect is the ‘considerable and unreasonable imbalance’ test: whether the labour required imposes a burden which is excessive or (seriously) disproportionate to the 53 ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 34; see also art 4(3)(d) ECHR. 54 ECtHR 11 October 2011, Graziani-Weiss v Austria, App No 31950/06, para 43. 55 ECtHR 11 October 2012, CN and V v France, App No 67724/09, para 74. 56 ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 34. 57 ibid para 35. 58 ECtHR 26 July 2005, Siliadin v France, App No 73316/01, para 118. 59 J Moerman, ‘Critical Analysis of the Prohibition of Slavery and Forced Labour under Article 4 of the ­European Convention on Human Rights’ (2010) 3 Inter-American & European Journal 86, para 3.3.2. 60 ECtHR 26 July 2005, Siliadin v France, App No 73316/01, para 119. 61 ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 36; ECtHR 11 October 2011, Graziani-Weiss v Austria, App No 31950/06, para 40.

Limiting the Criminalisation of Human Trafficking  231 advantages attached to the agreement for the person that provides the work or services. If this is the case, the labour cannot be treated as having been voluntarily accepted beforehand.62 Apparently, the Court considers ‘some overriding of the person’s will’ to be present then.63 Relevant but not necessarily decisive in this respect is whether the ­compulsory work or service falls outside the ambit of the normal activities that such labour usually involves, and whether the labourer receives special advantages in compensation for the forced labour or give him or her the opportunity to enlarge his or her experience or increase his or her reputation.64 Finally, it is important that remunerated work may also qualify as forced or compulsory labour, while at the same time unremunerated work can be acceptable. In the case of the lack of remuneration and of reimbursement of expenses, this constitutes a relevant factor too when considering what is proportionate or in the normal course of affairs.65 C. Exploitation It is clear that prior consent to compulsory labour does not yet by itself imply that the labour is voluntary. The implication seems to be that it is not possible at all to consent to labour that is seriously under-paid and that entails adverse work conditions that are not commonly accepted, for such a situation encompasses a ‘considerable and unreasonable imbalance’, ie, imposes a burden on the labourer which is excessive and seriously disproportionate. Consensual, mutually advantageous, exploitative labour can thus fall under the prohibition of compulsory labour, as a result of which that prohibition is not limited to situations that infringe on negative liberty. Meanwhile, it seems to us that the weight with which the two requirements – ie, that the labour is compulsory and involuntarily – need to be applied depends greatly on the nature of the labour. To qualify labour as compulsory or involuntary is much easier in – but not limited to – situations of exploitative labour or generally unaccepted work situations than in the case of normal, usual or generally accepted labour. This brings us to two further conclusions. First of all, it means that in the case of exploitative labour (seriously aggravating labour for unjust remuneration or benefits), it must be assumed that where the labour takes place under threat of a penalty, it is compulsory and involuntary. Second, it follows from this that harmful exploitative work is at the heart of the prohibition of forced labour, but the prohibition is not limited to exploitative work only, while at the same time exploitative work that does not take place under threat of a penalty will fall outside the prohibition. In the Rantsev case, the Court indeed considered ‘that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry



62 See

ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 37. ECtHR 7 January 2010, Rantsev v Cyprus and Russia, App No 25965/04, para 276. 64 See ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 39. 65 See ECtHR 23 November 1983, Van der Mussele v Belgium, App No 8919/80, para 40. 63 cf

232  Piet Hein van Kempen and Sjarai Lestrade but also elsewhere’.66 The Court concluded that trafficking itself, within the meaning of Article  3(a) of the Palermo Protocol and Article 4(a) of the European Convention on Trafficking, falls within the scope of Article 4 ECHR.67 Consequently, this provision not only comprises the exploitation phase, it is also applicable to the recruiting phase. Moreover, as for that exploitation phase, the provision also covers other forms of exploitation than slavery, servitude and forced labour.68 V.  INDIVIDUAL AND NATIONAL ECONOMIC DEVELOPMENT AS A RELEVANT FACTOR

Both the international trafficking instruments and the human rights provisions regarding compulsory labour in particular are not limited to situations where negative liberty is interfered with. To some extent, they also cover consensual, mutually advantageous, exploitative labour. It is particularly relative to the latter that human trafficking prohibitions can hinder the individuals’ opportunity to choose to do certain labour in order to advance his or her economic position (by obtaining work without which he or she would have no income, or a lower one) and a country’s possibilities to enhance economic development (by generating work without which that nation would have fewer jobs available and might be more vulnerable to human trafficking as a result). The chance to perform consensual, mutually advantageous, exploitative labour on a temporary basis may give a trafficked person an opportunity to start a better life, and acceptance of such labour agreements can help the state’s economy. This raises the question whether individual and national economic development are acknowledged under the aforementioned instruments and human rights as relevant factors that can allow for exploitative labour. The Palermo Protocol, the European Convention on Trafficking and the EU Directive on Trafficking or the official explanations thereof do not explicitly take into consideration that consensual, mutually advantageous, exploitative labour can be a means for individuals and states to improve their economic position. Interestingly, the Recommended Principles and Guidelines on Human Rights and Human Trafficking state that anti-trafficking measures ‘should not adversely affect the human rights and dignity of persons’ and that states should consider protecting the right of all persons ‘to freedom of movement and ensuring that anti-trafficking measures do not infringe upon this right’.69 However, it is not possible in our view to extract from this or from specific human rights that individuals have a right to perform exploitative labour. Furthermore, consensual, mutually advantageous, exploitative labour as a means for individuals and states to improve their economic position is not a consideration of 66 ECtHR 7 January 2010, Rantsev v Cyprus and Russia, App No 25965/04, para 281. 67 ibid para 282. 68 For criticism on the Rantsev judgment for bringing human trafficking under the reach of the prohibition and for having not sufficiently clarified the meaning of human trafficking and the legal distinction regarding various types of human exploitation, see, eg, V Stoyanova, ‘Article 4 of the ECHR and the Obligation of C ­ riminalising Slavery, Servitude, Forced Labour and Human Trafficking’ (2014) 3 Cambridge Journal of ­International and Comparative Law 407, 431–33. 69 United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN Doc E/2002/68/Add 1 (New York, United Nations, 2002) Principle 3 and Guideline 1(5).

Limiting the Criminalisation of Human Trafficking  233 ­ rticle 8 ICCPR and Article 4 ECHR either. This is not remarkable since slavery, serviA tude and forced labour in principle all are about involuntary labour. It is only through the European Court’s narrow interpretation of voluntariness and the inclusion of human trafficking under Article 4 ECHR that the prohibition of compulsory labour also covers forms of consensual, mutually advantageous, exploitative labour.70 Also, the ECtHR does not take interests of economic development into account. Still, its case law seems to imply that a country’s standard of economic development can be somewhat relevant when determining whether a situation amounts to compulsory labour. In particular, the outcome of the ‘considerable and unreasonable imbalance’ test will partly be dependent on the economic situation in a country: a burden of labour that is excessive or seriously disproportionate in one country may be acceptable and normal in another. The awkward consequence of this is that in the case of a labourer from country A who moves to country B by which he or she improves his or her economic position, it is possible that the more favourable working situation in country B will be regarded as labour exploitation while the less attractive working situation in country A is not. VI.  CONCLUDING ASSESSMENT: CRIMINALISATION OF CONSENSUAL, MUTUALLY ADVANTAGEOUS, EXPLOITATIVE LABOUR AS HUMAN TRAFFICKING?

Under both the international trafficking instruments71 and the prohibitions of slavery, servitude and forced labour in Article 8 ICCPR72 and Article 4 ECHR,73 states have the obligation to criminalise labour exploitation. Insofar as consensual, mutually advantageous, exploitative labour falls within the scope of these instruments and human rights, which is largely the case as has become clear, the obligation of criminalisation also applies thereto. Furthermore, under these human rights prohibitions, the obligation to criminalise can also include non-exploitative labour which is not sufficiently voluntary. Although this does not mean per se that the labourer will be prosecuted for complicity in such – exploitative or non-exploitative – labour,74 such criminalisation does limit his or her options of choice and consequently his or her negative liberty. Moreover, it limits the liberty of employers to offer such labour and as a result can also limit a nation’s economic development. This does not imply that consensual, mutually advantageous, exploitative labour should be accepted point-blank. In fact, there may also be very good reasons to discourage or thwart such labour. For example, even if a labourer genuinely consents to 70 See section IV.B and C. 71 See art 5 of the Palermo Protocol, arts 18–24 of the European Convention on trafficking and arts 2–6 of the EU Directive on trafficking. 72 See, eg, HRC, Concluding Observations of the Human Rights Committee (Brazil), UN Doc CCPR/C/79/ Add 66 (HRC, 1996) para 31. See also HRC, General Comment No 31, ‘The Nature of the General Legal ­Obligation Imposed on States Parties to the Covenant’, UN Doc CCPR/C/21/Rev 1/Add 13 (HRC, 2004) para 8. 73 See, eg, ECtHR 7 January 2010, Rantsev v Cyprus and Russia, App No 25965/04, para 285: ‘In its Siliadin judgment, the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour.’ 74 See art 26 of the European Convention on Trafficking and art 8 of the EU Directive on Trafficking. See also RW Piotrowicz and L Sorrentino, ‘Human Trafficking and the Emergence of the Non-punishment Principle’ (2016) 16 Human Rights Law Review 669.

234  Piet Hein van Kempen and Sjarai Lestrade exploitative labour, this can be detrimental to his or her physical or mental integrity or dignity, and can prevent positive liberty from becoming available to him or her. Improving the average level of labour conditions or remuneration requires the suppression of exploitative labour. The same holds true if a country pursues the development of its citizens’ positive liberty, as exploitative labour situations usually offer few possibilities to individuals for self-determination and self-realisation. However, even then the question remains as to whether genuinely consensual, mutually advantageous, exploitative labour should fall within the scope of human trafficking offences. From the perspective of substantive criminal law principles, we are of the opinion that it should not, first of all because there seems to be a problem of proportionality. In this respect, it is important that consensual exploitative labour does not interfere with the labourer’s negative liberty and thus is not harmful in that sense. In fact, in the case of mutually advantageous labour, the labourer realises the benefits that he or she finds worth pursuing (considering his or her possibilities and abilities), while not directly causing harm to others. Whereas criminalisation of conduct in the case of consent and lack of harm is problematic in general,75 consent and lack of harm especially do not fit well with the notion of human trafficking, for this is a very serious qualification, the essence of which is harmful exploitation. Punishing people involved in consensual, mutually advantageous, exploitative labour under human trafficking offences seems to be a strong example of unfair labelling, considering that these offences concern very serious crimes to which high maximum penalties apply. Second, criminalisation of consensual, mutually advantageous, exploitative labour as human trafficking is also troublesome from the perspective of subsidiarity or necessity. It is a fundamental criminal justice principle that criminal law is and must be regarded as a so-called ‘ultimum remedium’, which means that conduct should only be criminalised and criminal law only applied as a last resort, ie, if all other avenues fail to forestall or repress the harmful conduct.76 Human trafficking offences are not needed to improve the average level of labour conditions or remuneration and to suppress all exploitative labour situations, as this can also be achieved through, for example, administrative or civil labour law. Third, labour law is actually even much better suited to uphold labour conditions and standards, since it can much more precisely stipulate the conditions and standards that employers have to meet. Moreover, if the more serious violations of such stipulations were specifically criminalised, this would not lead to a less repressive system than the one based on criminalisation under general human trafficking offences, or than is required by the international trafficking instruments and the human rights prohibitions of slavery, servitude and forced labour in Article 8 ICCPR and Article 4 ECHR. Consequently, suppressing consensual, mutually advantageous, exploitative labour through general human trafficking offences – which only by and large indicate what is prohibited – is troublesome from the principle of effectiveness. 75 cf, eg, A Ashworth and J Horder, Principles of Criminal Law (Oxford, Oxford University Press, 2013) 28–31. 76 See, for example, PH van Kempen, ‘Four Concepts of Security: A Human Rights Perspective’ (2013) 13 Human Rights Law Review 1, 19; MG Faure and M Visser, ‘Law and Economics of Environmental Crime’ in H Sjögren and G Skogh (eds), New Perspectives on Economic Crime (Cheltenham, Edward Elgar, 2004) 68; Ashworth and Horder, Principles of Criminal Law (2013) 33.

Limiting the Criminalisation of Human Trafficking  235 Finally, regulation through labour law backed up by criminal law may also better meet the principle of legality. Offences of human trafficking – as required by the international trafficking instruments and the relevant human rights prohibitions – are rather unclear as to what extent they precisely cover consensual, mutually advantageous, exploitative labour and labour that is not exploitative as such (seriously aggravating for unjust remuneration or benefits). In that respect, the offences do not very well meet the legality requirement that it must be foreseeable from their wording which acts and omissions will render someone criminally liable, all the more so since such forms of labour do not belong to the essence of the offence of human trafficking. Foreseeability should not be a problem with criminalising violations of precise labour law regulation. Up until now, we have ignored the perspective of criminal procedure, particularly the problem that in the event that someone is actually harmfully exploited, it is often difficult to prove so. Evidence of force, threat or deception can be difficult to offer, particularly so because victims of human trafficking may be scared off by the exploiter and are often reluctant to cooperate with the authorities. For the same reasons, it can be hard to ascertain whether alleged free will to accept exploitative labour is actually genuine. This raises the question whether it is necessary and may be justifiable to include consensual, mutually advantageous, exploitative labour and labour that is not exploitative as such within the scope of the offence of human trafficking for reasons of circumventing procedural evidentiary difficulties that weaken the effective prosecution of harmful labour exploitation. This is not justifiable if this was done to enable authorities to impose criminal penalties on exploiters for force, threat or deception, without proof thereof. This would be contrary to the principle of guilt and the presumption of innocence. Would it then be acceptable to criminalise conduct that is not regarded criminally wrongful or harmful as such, but often or easily relates to situations of harmful exploitation, simply in order to suppress such situations? As such, this is not necessarily unacceptable as there are many offences that criminalise conduct because of the consequences that it may have. Examples of such non-constitutive crimes, risk offences or remote harm offences are the criminalisation of speeding, of the possession of weapons and of making fire that endangers life or possession.77 Still, even if for such reasons it were considered desirable to criminalise consensual, mutually advantageous, exploitative labour and labour that is not exploitative as such, it is not necessary and if only for that reason not justifiable either to expand the scope of human trafficking offences, as suppression of these forms of labour is also possible through labour law. In conclusion, consensual, mutually advantageous, exploitative labour and labour that is not exploitative as such should not be regarded as human trafficking and should thus not fall within general human trafficking offences. As for the latter, serious cases of forced or compulsory non-exploitative labour can be prosecuted on the basis of offences such as unlawful deprivation of liberty, placing someone unlawfully under control or in a powerless situation, fraud or illegal deception, or threat. As for the former, consensual, mutually advantageous, exploitative labour can be suppressed through labour law, if need be backed up by criminal offences that criminalise specific violations of labour law. 77 See, eg, AP Simester and A von Hirsch, ‘Remote Harms and Non-constitutive Crimes’ (2009) 28 ­Criminal Justice Ethics 89; J ten Voorde, ‘Prohibiting Remote Harms: On Endangerment, Citizenship and Control’ (2014) 10 Utrecht Law Review 163.

236  Piet Hein van Kempen and Sjarai Lestrade To what extent such offences are necessary or desirable is a matter of government policy, to which a large variety of considerations are relevant, such as: respect for the individual’s freedom of choice and advancing economic development, but also improving labour conditions and advancing citizens; positive liberty and guaranteeing effective repression of violations of labourers’ physical and mental integrity, as well as their dignity. For several reasons, we find that it must be left to states to decide on this policy. First, consensual, mutually advantageous, exploitative labour and non-exploitative labour clearly do not belong to the essence of slavery, servitude, forced labour and human trafficking. Second, the aforementioned opposing considerations are not taken into account by the international trafficking instruments and the human rights prohibitions of slavery, servitude and forced labour. Third, national authorities are best positioned to make such decisions. They are more familiar with the demands, necessities and possibilities in their country than anyone else, and such decisions are largely of a political nature too. In fact, we argue for an international definition of human trafficking that excludes both consensual, mutually advantageous, exploitative labour and non-exploitative labour. REFERENCES

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Limiting the Criminalisation of Human Trafficking  237 Faure, MG and Visser, M, ‘Law and Economics of Environmental Crime’ in H Sjögren and G Skogh (eds), New Perspectives on Economic Crime (Cheltenham, Edward Elgar, 2004) 57–75. Feinberg, J, Social Philosophy (Englewood Cliffs, NJ, Prentice Hall, 1973). ——. ‘Noncoercive Exploitation’ in R Sartorius (ed), Paternalism (Minneapolis, University of Minnesota Press, 1983). Gallagher, AT, The International Law of Human Trafficking (New York, Cambridge University Press, 2010). Gorr, MJ, Coercion, Freedom and Exploitation (New York, Peter Lang, 1989). Hathaway, JC, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Virginia Journal of International Law 1. Human Rights Committee (HRC), Concluding Observations of the Human Rights Committee (Brazil), UN Doc CCPR/C/79/Add 66 (HRC, 1996). ——. General Comment No 31, ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc CCPR/C/21/Rev 1/Add 13 (HRC, 2004). Joseph, S and Castan, M, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford, Oxford University Press, 2013). Lyons, D, ‘Welcome Threats and Coercive Offers’ (1975) 50 Philosophy 425. MacCallum, Jr, GC, ‘Negative and Positive Freedom’ (1967) 76 Philosophical Review 312. Moerman, J, ‘Critical Analysis of the Prohibition of Slavery and Forced Labour under Article 4 of the European Convention on Human Rights’ (2010) 3 Inter-American & European Journal 86. Nowak, M, UN Covenant on Civil and Political Rights, CCPR Commentary (Kehl, NP Engel Publisher, 2005). Nozick, R, ‘Coercion’ in P Laslett, WG Runciman and Q Skinner (eds), Philosophy, Politics and Society: Fourth Series (Oxford, Basil Blackwell, 1972) 101–35. Obokata, T, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (Leiden, Martinus Nijhoff Publishers, 2006). Piotrowicz, RW and Sorrentino, L, ‘Human Trafficking and the Emergence of the Non-punishment Principle’ (2016) 16 Human Rights Law Review 669. Rijken, C, ‘A Human Rights Based Approach to Trafficking in Human Beings’ (2009) 20 Security & Human Rights 212. Scarpa, S, Trafficking in Human Beings: Modern Slavery (Oxford, Oxford University Press, 2008). Shelley, L, Human Trafficking: A Global Perspective (Cambridge, Cambridge University Press, 2010). Simester, AP and von Hirsch, A, ‘Remote Harms and Non-constitutive Crimes’ (2009) 28 Criminal Justice Ethics 89. Stoyanova, V, ‘Article 4 of the ECHR and the Obligation of Criminalising Slavery, Servitude, Forced Labour and Human Trafficking’ (2014) 3 Cambridge Journal of International and Comparative Law 407. Ten Voorde, J, ‘Prohibiting Remote Harms: On Endangerment, Citizenship and Control’ (2014) 10 Utrecht Law Review 163. United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN Doc E/2002/68/Add 1 (New York, United Nations, 2002).

238  Piet Hein van Kempen and Sjarai Lestrade United Nations Office on Drugs and Crime (UNODC), Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (New York, United Nations, 2006). United Nations Secretary General, Annotations on the Text of the Draft International Covenants on Human Rights, UN Doc A/2929 (New York, United Nations, 1955). Van Kempen, PH, ‘Four Concepts of Security: A Human Rights Perspective’ (2013) 13 Human Rights Law Review 1. Zimmerman, D, ‘Coercive Wage Offers’ (1981) 10 Philosophy & Public Affairs 121.

13 Rethinking the Model Offence From ‘Trafficking’ to ‘Modern Slavery’? FRANCESCO VIGANÒ

I.  INTRODUCTION: AN UNFORTUNATE STATE OF THE LAW

The model offence of ‘trafficking in human beings’ – which is almost identical in all relevant international and EU instruments – targets the: [R]ecruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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.1

The key concept of ‘exploitation’ is not properly defined by any of these instruments. The Palermo Protocol, which is followed by the Council of Europe Convention, merely states that: Exploitation shall include, 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 organs2

This thereby leaves the states parties free to define the concept within their domestic legal order, provided that the definition includes the practices indicated in the Protocol. At the regional level, the same technique is adopted by Directive 2011/36/EU, which simply adds ‘begging’ and ‘exploitation of criminal activities’ to the list of actions that must be included in the concept of exploitation.3

1 Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Palermo, 2000. A virtually identical definition is contained in art 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 2005, as well as in art 2(1) of Directive 2011/36/EU of the ­European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JH 1 (1) of the EU Framework Decision 2002/629/JHA. 2 In the very same art 3(a) mentioned above in n 1. 3 Article 2(3) of Directive 2011/36/EU (see n 1 above).

240  Francesco Viganò In any case, it is clear that the actual exploitation of the victim – whatever that might mean – is not a prerequisite for the offence; what is necessary, and sufficient, is that the perpetrator intends the victim to be exploited.4 This chapter will argue that this legal situation is unsatisfactory. The core concern of the international community should obviously be the fight against the more severe forms of exploitation of human beings, such as those mentioned in the supranational instruments on trafficking in persons. However, the problem is that the criminalisation of ‘trafficking’ – ie, essentially the transfer of people from one place to another for the purpose of their exploitation5 – does not directly target the behaviour that the international community should combat, but rather acts that are merely functional to the subsequent exploitation of the victim, which will later be carried out by the perpetrator or by third parties. Yet, it is the final conduct of exploitation that will be harmful to the victim’s interests, not the mere fact of his or her transfer.6 Of course, it is not uncommon in many legal systems to find provisions criminalising neutral – or even benign – acts, if committed with a specific harmful intent. In those cases, it is precisely the harmful intention that renders the acts criminal, and the obvious function of such provisions is to bring forward the response of the criminal law – and the intervention of law enforcement agencies – to a moment before any harm to the protected interests is actually caused, with a view to the more efficient prevention of the harm itself.7 This technique has often been criticised by legal scholars who find it questionable, for a variety of reasons, to make the criminal law reaction dependent on a mere intention to harm, at least when the acts performed by the individual are still remote from the actual causation of harm and not sufficiently proximate to it, as is the case for criminal attempts.8 However, there is an additional reason of concern with regard to the international and regional legal framework on human trafficking: there is no supranational obligation to criminalise the actual causation of harm that the offence of trafficking aims to prevent – ie, the victim’s final exploitation. In other words, states are required to establish in their legal systems the precursor offence of trafficking, which targets conduct that is merely instrumental to the future exploitation of the victims; rather surprisingly, they are not required to criminalise the exploitation as such, which remains neutral from the international law perspective. It is true that certain courses of conduct that shall be included under the concept of exploitation according to the Palermo Protocol, such as slavery or the unlawful removal 4 See the chapter by Bergelson in this volume (section III.C). 5 It is true that the offence of trafficking does not necessarily involve the transfer, and ultimately the movement, of people, as one of the alternative courses of conduct mentioned in the model definition is the ‘harbouring’ of the victim. Yet, just as for the action of ‘transporting’ or ‘delivering’ a person, the mere ‘harbouring’ of another person is also morally neutral, and becomes criminally relevant only in relation to the perpetrator’s intention that the victim should subsequently be exploited. 6 See also the chapter by Matravers in this volume (section V). 7 On these offences, which typically criminalise merely preparatory acts to further offences and fall under the broader category of so-called ‘crimes of ulterior intent’, see J Horder, ‘Crimes of Ulterior Intent’ in AP Simester and ATH Smith (eds), Harm and Culpability (Oxford, Clarendon Press, 1996) 167–70. 8 For an extensive discussion of the problem within the specific context of human trafficking, see the chapter by Thorburn in this volume (section III). For a general and thorough discussion of crimes of ulterior intent, see, within the Italian literature, M Marinucci and E Dolcini, Corso di diritto penale, 3rd edn (Milan, Giuffrè, 2001) 598–603.

Rethinking the Model Offence  241 of organs, constitute self-standing offences under the international law. However, for example, exploitation of prostitution of adults is not an international crime in a broad sense, and is not even recognised as an offence in various legal systems. Similarly, inducement to begging – which is mentioned in the EU Directive as a form of ­exploitation – is not an offence in many jurisdictions. Moreover, other forms of exploitation that do not amount to self-standing offences may well be included in the broad concept of ‘exploitation’, which each state party may freely define within its own legal order. In addition, the crucial concept of ‘exploitation’ – which constitutes the core of the harm that the offence of trafficking seeks to prevent – is not defined, as noted above, by any supranational instrument. The idea is clearly that states may well exercise their discretion and determine themselves what should be meant by ‘exploitation’ in their respective legal systems. The problem, however, is that states tend simply to copy and paste the international provisions on human trafficking into their legal systems, without making any effort to delineate with precision the boundaries of the specific intent required for the offence. As a consequence, the extremely harsh penalties provided against traffickers in human beings in many jurisdictions are potentially applied to neutral acts involving the transportation of persons (usually from one country to another), carried out by one of the means listed in the provision – including a mere ‘abuse of a position of vulnerability’  – for purposes that either are in themselves not criminal at all or that are left undefined by criminal law. Both situations are unsatisfactory: the former because it illogically punishes acts that are merely preparatory to other acts that, whilst potentially being morally reprehensible, are in themselves not criminally relevant; and the latter because it leaves the decision as to whether to prosecute and punish to law enforcement officers and the courts, in blatant breach of the logic of the nulla poena principle. A fresh intellectual effort by the international community will probably be necessary in order to develop a new legal strategy to combat effectively the worst forms of exploitation of human beings by other human beings. Such a strategy should, in my opinion, directly tackle the problem at its roots, attempting to imagine a new model offence focused on the conduct that ultimately harms the victims – and not just on acts that are merely preparatory to this harmful conduct, as is currently the case. II.  WHERE IS THE HARM IN THE CURRENT MODEL OFFENCE OF ‘TRAFFICKING’?

Before considering how such a new model offence could be shaped, it is necessary to examine a couple of possible objections to this line of argument. A first objection could move from a provocative question: is there truly no harm in the sheer act of transporting the victim from one place to another (usually from one country to another), and in general in any of the acts mentioned in the current model offence of ‘trafficking’? Is it really true, in other words, that the harm implied in the offence only lies in the specific intention that the victim is to be exploited, and not already in the acts carried out by the perpetrators? After all – so the argument could run – it is not uncommon for the victims of trafficking to be transported in appalling conditions, often associated with acute dangers for their own lives, as is demonstrated by the tragedies that

242  Francesco Viganò take place almost every day in the Mediterranean Sea. In addition, victims have to make disproportionate cash payments to their traffickers in order to be transported that way. Of course, there is already harm in all this, one might conclude. A flaw in this objection is probably that the harm described – disproportionate financial losses, risks to health and life, and undignified treatment during the transfer – is not specific to the behaviour covered by the model offence of trafficking. The same harm is brought about in many instances of smuggling of migrants – a completely different offence under international law, with a distinct logic and purpose, which however basically shares with trafficking the actus reus, focused on the transfer of people from one state to another, and which is often perpetrated by criminal organisations that literally transport people like animals or worse, earning immense profits from this illegal ­business.9 On the other hand, disproportionate remuneration for travel, the causing of danger to life and/or health, or even the undignified conditions of transportation are not essential prerequisites for human trafficking, just as they are not for smuggling. A girl may be induced by a ‘trafficker’ through deception to buy, at a market price, a flight ticket and to travel in a perfectly safe way to another country, where she expects to work as a dancer and where she will instead be exploited as a prostitute. Similarly, a young man may be assisted in entering another state illegally by plane using a forged document, which has been falsified and provided to him by a ‘smuggler’ at a reasonable price. No such harm occurs in either of the two cases, although there is no doubt that the former case amounts to trafficking, whilst the second constitutes smuggling. A second objection could point to the unlawful means mentioned in the standard definition of the offence (the threat of or actual use of force, coercion, abduction, deception etc), which must be used by the perpetrator at least when the victim is an adult. Such alternative requirements seem to suggest that the conduct criminalised is indeed harmful  – ie,  characterised by the harm that is necessarily associated with an actual impairment of the victim’s freedom of choice. However, it is clear that the core wrong associated with trafficking does not lie with this kind of personal harm. First of all, important jurisdictions around the world such as the UK and Canada do not require any unlawful means to be deployed in order for the offence of trafficking to be committed.10 But even the jurisdictions that closely follow the model of the Palermo Protocol and the subsequent international regulations draw a clear distinction between offences that (merely) affect personal freedom – such as kidnapping or, in continental Europe, coercion – and human trafficking. The latter offence is considered to be much more serious, precisely because of the ulterior intent of exploiting the victim. In fact, according to the common understanding, the core evil of trafficking lies in its status as a precursor crime, pursuing the specific function of preventing the victim’s future exploitation by the very same traffickers or, more often, by other persons to whom they are presumably connected within the framework of the same criminal organisation or of other criminal organisations that cooperate closely with them. 9 On the criminological overlaps between trafficking and smuggling, see generally UNODC, Global Report on Trafficking in Persons 2016 (New York, United Nations, 2016) 17–18. 10 See the chapter by Thorburn in this volume (section II).

Rethinking the Model Offence  243 This means that even in situations involving the transportation of persons in animallike conditions, which are associated with an extreme danger for life – such as the horrific crossings of the Mediterranean, which often result in boats sinking with hundreds of people drowning – it is far from self-evident that those responsible for the journeys should be liable for trafficking of human beings. In fact, in order to charge them with trafficking – and not simply with the smuggling of migrants, which is a much less severe offence in all jurisdictions – it is necessary for law enforcement officials to gather evidence of the defendants’ ulterior intention to hand over their passengers, once they have arrived in the country of destination, to other persons who will then exploit them in one of the forms covered by the trafficking offence that could be applicable ratione loci. Such evidence may, however, be difficult to obtain, as the organisations in charge of migrant flows to Europe are likely to be unconcerned with the final destination and ultimate fate of their clients, who may subsequently become ordinary ‘economic migrants’, asylum-seekers and/or future victims of exploitation. The profits of the business operated by these criminal organisations are earned from transportation, and not from anything else that happens at a later stage. Furthermore, the fact that an offence which aims to prevent victims from being exploited is focussed on the moment of the victims’ transfer to the places where they will subsequently be exploited is not without consequence for the strategies of law enforcement officials. Since the actus reus involves, or is commonly understood to involve, the transportation of the victims, the focus of these strategies will most likely be placed on the control of national borders in order to discover and stop the flows of trafficked people before they reach their destinations, and possibly to return them to their countries of origin.11 Consequently, little effort is likely to be paid to investigating the very criminal phenomenon that the offence of trafficking should prevent, ie, the victims’ final exploitation, which takes place well within the national borders and which may furthermore – as noted above – not itself constitute an offence. This is a very unfortunate consequence indeed, which risks leaving the victims of this crime fully unprotected at the very time when they would actually require more protection under the criminal law.12 The truth is that the current framework of international law (as well as many domestic laws, which are closely modelled on it) has since its birth, with the Palermo Protocol, been intimately associated with the idea of criminalisation of, and fight against, human trafficking as a tool for controlling illegal immigration13 – ie, the illegal movement of persons from a (usually under-developed) state to other states, which is operated on a massive scale by transnational criminal organisations. This explains why the first comprehensive UN instrument on human trafficking was adopted as a protocol to a convention

11 See J O’Connell Davidson, ‘New Slavery, Old Binaries: Human Trafficking and the Borders of “Freedom”’ (2010) 10 Global Networks 244, 244, who points out that the rhetoric of human trafficking has actually worked out, inter alia, ‘in support of more restrictive immigration policies and tighter border controls’. 12 See UNODC, Global Report (2016) 50, which stresses the still very low number of prosecutions and convictions for human trafficking worldwide. In general, on the insufficient protection granted to the victims of trafficking under national legal systems, see, eg, S Krieg, ‘Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights’ (2009) 15 European Law Journal 775, 776, where she argues that ‘the humanitarian intention of victim protection are [generally] overshadowed by anti-immigration conveniences’. 13 This is also true at the EU level: see, again, S Krieg, ‘Trafficking in Human Beings’ (2009) 787.

244  Francesco Viganò on organised crime, alongside a protocol concerned with smuggling, ie, the illegal movement of migrants from one state to another. Both protocols focused on the transportation of people across national borders. This was ultimately regarded as something that was harmful in se, which states have an obvious right to prevent and repress, and the additional harm associated with trafficking as compared with smuggling was probably considered to be the victim’s unwillingness to leave his or her state of origin. However, such a simplistic view – which is perhaps linked with the widely shared view of human trafficking as the modern form of the slave trade14 – does not adequately reflect the harm suffered by the victims of the patterns of behaviour that are commonly considered within legal and political discourse to constitute ‘human trafficking’. There may of course be instances in which individuals are forcibly, or at least unwillingly, removed from their places of birth and brought to foreign countries by organisations of traffickers; however, the central harm caused to the vast majority of the ‘modern slaves’ (prostitutes, domestic workers, massively underpaid workers, beggars etc) does not consist in their removal from their countries of origin,15 which they have often left voluntarily with the hope of a better life, but rather in what happens to them once they have reached the country of destination,16 where they may become victims of exploitation.17 It is, in sum, what individuals experience in that country that should constitute the harm which the offence of human trafficking should reflect, but which – unfortunately – it still fails to reflect, according to the current state of international law. III.  LOOKING FOR A NEW MODEL OFFENCE: THE SLAVERY PARADIGM

In order to avoid these shortcomings, a new model offence should be shaped – centred, more specifically, on the criminal behaviour that ultimately harms the victims, ie, their exploitation. However, this is only a starting point. Exploitation is a very vague concept, and was intentionally left undefined by the Palermo Protocol and by the subsequent supranational instruments that have been modelled on it, because states parties were unable to agree on a shared definition and decided to devolve the task to national parliaments. This was not seen as a major problem, as exploitation was simply the object of the perpetrator’s 14 See, eg, Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, Council of Europe, 2005) § 3. 15 Compare the chapter by Thorburn in this volume (section II.C): ‘movement itself is not the concern’ in the context of human trafficking. I would probably put it in more cautious terms: victims’ movement should not be a concern of legislators and law enforcement agencies, when tackling instances of human trafficking. 16 On this point, in the context of an illuminating analysis of Filipina sex workers in South Korea, see YJ Shin, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753, especially 808. 17 On the phenomenon of smuggled migrants becoming victims of trafficking once they have reached the destination country, see, again, UNODC (n 9) 18. The same report points out (at 40–41) that there has been in recent years an increasing number of detected cases of severe exploitation of victims who had not previously been transferred from a country to another, or even – in some cases – within the borders of an individual ­country. Current regulations on trafficking generally cover the latter cases only insofar as the ‘harbouring’ of the victims by the perpetrator is proven – an unnecessary complication for prosecution. If there is evidence of the victims’ exploitation, this should be sufficient.

Rethinking the Model Offence  245 specific intent, while the actus reus was fully described by the provision (albeit using some terms that were also vague, such as ‘abuse of a position of vulnerability’); yet, the lack of a definition would appear to be unsustainable if a new provision were to target exploitation as such, making it an essential part of the actus reus. However, it is not easy to define exploitation as a core prerequisite for a future model offence under international law. At least four major challenges have to be met within such an endeavour. The first, and obvious, precondition in order for a model offence under international law to be agreed on is the existence of a widespread consensus concerning the criminal nature of the behaviour that the new offence is to encompass. This is already a problem within our context, because – for example – states parties to the Palermo Protocol strongly disagreed over whether the organisation of adult prostitution should be regarded as a form of exploitation of the prostitutes. A second precondition is the transnational nature of the offence, at least in a broad sense. It usually makes sense to engage the international community in the prevention and repression of criminal behaviour only insofar as this behaviour has some cross-border elements, or at least if any added value might be reasonably expected from a coordinated international effort to punish it. It therefore follows that a model offence should not cover forms of exploitation that are of purely domestic relevance, such as poor labour conditions for under-paid national workers, which each state should remain able to address through a national strategy. Third, a supranational model offence should in any case avoid the risk of overinclusivity, or over-breadth, by limiting its reach to cases where the intervention of criminal law is clearly required, in view of the unequivocal gravity of the facts encompassed by the offence. As is the case for the existing offence of ‘trafficking in human beings’, a new model offence should be shaped in such a way as to strongly stigmatise behaviour that negates the very core of the victim’s human rights and dignity – which is obviously not the case in many instances of labour or other forms of exploitation, which may be effectively prevented and repressed through alternative strategies, not necessarily involving the criminal law. Finally, a supranational model offence should avoid – at least to a certain extent – the further risk of ending up being too vague.18 Of course, it is ultimately a task for national legislators to transpose supranational obligations into their legal systems and to precisely shape the boundaries of the offence within the framework defined by those obligations, which always intentionally leaves a certain margin of appreciation to the states parties. However, as mentioned above, experience shows that national legislators tend to transpose the supranational provisions into their domestic systems in a mechanical fashion, often using the same wording and therefore not remedying the original vagueness of the model offence. The resulting provisions will then be exposed to a risk of challenges before the national supreme or constitutional courts, precisely on the ground of their incompatibility with nullum crimen or equivalent guarantees – a possibility which should give rise to grave concerns in the international community, from the very perspective of the effective fight against the worst criminal behaviour which the model offence is intended to tackle.

18 See

also the chapter by Bergelson in this volume (section I).

246  Francesco Viganò In order to meet all of these challenges, I think it would be advisable to start thinking about the very core of the criminal behaviour that the international community is surely willing to combat. This very core is represented both by slavery – ie, the worst form of exploitation of human beings by other human beings that history has ever known, which the international community has sought to eradicate at least since the Geneva Convention on Slavery was signed on 25 September 1926 – and also, arguably, by some forms of exploitation similar to slavery, ie, that share certain essential features with traditional slavery. The notion of slavery is well established within international law, thanks to the 1926 Convention, Article 1 of which defines it as follows: Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

The 1926 Geneva Convention was supplemented in 1956 by a second Geneva Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which addressed in particular the following ‘institutions and practices’: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

The problem with the list contained in the 1956 Convention is its casuistic approach, which covers only some forms of exploitation of human beings, which should be considered as being similar to slavery. For example, the list does not include adult ‘sex slaves’, who are coerced to work as prostitutes either by force or by severe threats against their own lives; it also does not cover ‘domestic servitude’ which, according to international reports and surveys is sadly widespread throughout many countries around the world – including, albeit in small numbers, in Europe, as is apparent from the European Court of Human Rights’ case law.19



19 See,

eg, ECtHR, Siliadin v France, 26 July 2005.

Rethinking the Model Offence  247 The European Court of Human Rights, together with the political bodies of the Council of Europe (CoE), has contributed to shaping the related concept of servitude, which is mentioned – but not defined – immediately after ‘slavery’ in Article 4 of the European Convention on Human Rights (ECHR). As summarised in the Explanatory Report to the CoE Convention on Action against Trafficking in Human Beings, The European Commission of Human Rights regarded it as having to live and work on another person’s property and perform certain services for them, whether paid or unpaid, together with being unable to alter one’s condition (Application No. 7906/77, D.R.17, p. 59; see also the Commission’s report in the Van Droogenbroeck case of 9 July 1980, Series B, Vol. 44, p. 30, paragraphs 78 to 80). Servitude is thus to be regarded as a particular form of slavery, differing from it less in character than in degree. Although it constitutes a state or condition, and is a ‘particularly serious form of denial of freedom’ (Van Droogenbroeck case, judgment of 24 June 1982, Series A, No. 50, p. 32, paragraph 58), it does not have the ownership features characteristic of slavery concept of ‘servitude’.20

According to this definition, the concept of ‘servitude’ seems to have three essential features: the victim must (a) live and work on another person’s property, (b) perform certain services for him or her, and (c) be unable to alter his or her condition. By contrast, the victim does not have to be considered as the ‘property’ of another person – were it is so, he or she would most likely be considered as a ‘slave’ under the 1926 Geneva Convention. It is quite clear that this definition coincides with that of ‘serfdom’, as described by Article 1(b) of the 1956 Convention, and therefore does not even cover all the courses of conduct mentioned in that instrument. Taking account of all the ‘institutions and practices similar to slavery’ mentioned in the 1956 Convention, it is in my view possible to identify at least two features that are shared with the traditional notion of ‘slavery’ and that may potentially constitute the essential features of a notion that encompasses all forms of ‘modern slavery’, including those that do not fall under the definition contained in the 1956 Supplementary Convention. Traditional slavery is characterised not only by (a) the exploitation of the slave’s labour, who does not receive any proper remuneration, and usually receives only meals and accommodation from his or her master; but, far more importantly, it is also characterised by (b) the slave’s complete lack of freedom, which makes him or her the ‘property’ of his or her master. The core of the evil of slavery seems in fact to be the radical denial of the victim’s liberty: a slave is, first and foremost, a person who has lost his or her liberty.21 Not surprisingly, a person who had ceased to be a slave was called, in Roman times, libertus, ie, a person who had regained that liberty.

20 Council of Europe, Explanatory Report (2005) § 95. 21 The Trial Chamber of the International Tribunal for the Former Yugoslavia (ICTY) described in the following terms in Kunarac the typical features of the international crime of enslavement: ‘indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator’ (Prosecutor v Kunarac, Kovač and Vuković, Judgment, Case No IT-96-23-T and IT-96-23/1-T, 22 February 2001, § 542). In the following paragraph, the Trial Chamber expresses its general agreement with the following factors, which according to the Prosecutor should be taken into consideration in determining whether enslavement had been committed: ‘control of someone’s movement, control of physical environment, psychological control,

248  Francesco Viganò Of course, slavery does not necessarily entail the full impairment of the right to freedom of movement – ie, of the personal freedom under Article 5 ECHR; after all, a slave does not have to be kept in chains or confined to a limited space in order to be considered as such.22 The decisive aspect is rather that he or she is actually deprived of the ability to make basic decisions concerning his or her existence – from the choice to decide not to work or to change job, to the decision over whether and whom to marry. These fundamental decisions are entirely dependent on the master’s will, who is in a position to compel the slave to act according to his or her wishes. In sum, the liberty right that is at stake here is self-determination – which is, ultimately, an essential precondition for human dignity. These two characteristics – severe exploitation of the victim on the one hand, and substantial deprivation of the victim’s self-determination on the other – are also common  to the ‘institutions and practices similar to slavery’ proscribed by the 1956 Supplementary Convention, which always presuppose both a state of subjection on the part of the victim towards a person who exercises at least de facto authority over him or her, and the exploitation of his or her labour – or of her domestic and sexual services as far as the ‘purchased’ or ‘inherited’ wives mentioned in letter (c) of the Supplementary Convention are concerned. Moreover, these very characteristics can be fairly assumed to be the distinguishing features of all forms of ‘modern’ slavery, from ‘sex’ to ‘domestic’ labour and beyond. In contrast to ‘traditional’ slavery and some of the practices mentioned in the 1956 Supplementary Convention, which were recognised as legal institutions (at least in the opinion iuris ac necessitatis shared by social actors in a particular place and at a particular time) whereby a person was technically ‘owned’ by another person, the ‘modern’ forms of slavery are pure practices, which are condemned by every legal system in the contemporary world and are generally carried out in the full awareness of their unlawfulness both by victims and perpetrators. Unfortunately, this does not make these practices any less widespread than traditional forms of slavery and servitude once were, nor any less harmful for the victims’ right to self-determination. As has been demonstrated by statistics and official reports, a huge number of people worldwide are not only severely exploited, but are also subjected to the overarching authority of other people who – in a similar manner to the old ‘masters’ in respect to their slaves – fully determine their fate, literally keeping their entire existence in their own hands.23 A new model offence should, in my opinion, try to capture both of these characteristics, in an effort to confine its reach carefully to behaviour that is unequivocally ­ easures taken to prevent or deter escape, force, threat of force of coercion, duration, assertion of exclusivity, m subjection to cruel treatment and abuse, control of sexuality and forced labour’ (§ 543). The Trial Chamber’s reasoning was later approved by the Appeals Chamber (Prosecutor v Kunarac, Kovač and Vuković, Judgment, Case No IT-96-23-T and IT-96-23/1-A, A Ch, 12 June 2002, § 119). Therefore, according to the ICTY case law, the characteristic feature of enslavement is not only coercion to perform some service for another person’s gain, but also and above all a situation where the victim is deprived of his or her basic liberty to make fundamental choices, and cannot free himself or herself from this control due to the coercive or abusive means deployed by his or her ‘owner’. 22 O’Connell Davidson, ‘New Slavery, Old Binaries’ (2010) 246. 23 See, among the most recent reports, HM Government, Department of Justice, the Scottish Government and Welsh Government, 2017 UK Annual Report on Modern Slavery (London, UK Home Office, 2017).

Rethinking the Model Offence  249 considered to be wrong by the entire international community and sufficiently severe to deserve the label of a heinous crime against the basic human rights and dignity of the victim. Moreover, such an offence is usually committed against aliens, and also for this reason should be combated through a coordinated international effort. IV.  FROM ‘TRAFFICKING’ TO ‘MODERN SLAVERY’: SUGGESTIONS FROM A COMPARATIVE LAW PERSPECTIVE

The idea that ‘modern slavery’ could be directly addressed by a different offence than that of ‘trafficking’ is, admittedly, not new: some jurisdictions have already established such a crime within their domestic legal system, although without necessarily naming it as such. It is thus worth examining a couple of examples of such provisions, with a view to gleaning some suggestions that could be of benefit for the elaboration of a proposal of a new supranational model offence. A.  The UK A first example is offered by UK law, where the innovative Modern Slavery Act was enacted in 2015.24 Section 2 of the Act establishes the offence of human trafficking, closely following the international patterns of the Palermo Convention and the subsequent CoE and EU instruments. Of greater interest from our perspective, section 1 – entitled ‘Slavery, Servitude and Forced or Compulsory Labour’ – states in subsection 1 that: A person commits an offence if— (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.

In essence, as far as the actus reus is concerned, the provision criminalises the acts of (a)  holding a person in ‘slavery’ or ‘servitude’ and (b) requiring a person to perform ‘forced or compulsory labour’. The Act does not define ‘slavery’, probably implicitly referring to the 1926 Geneva Convention. As for ‘servitude’, subsection 2 requires that the term be construed in accordance with Article 4 ECHR and arguably with the interpretation given by the ­European Convention bodies, which – as we have seen above – construes servitude as being equivalent to the practice of serfdom, as defined in Article 1(b) of the 1956 Supplementary Convention. It is thus questionable whether the concepts of slavery or servitude

24 See P Southwell, M Brewer and B Douglas-Jones, Human Trafficking and Modern Slavery: Law and ­ ractice (London, Bloomsbury Professional, 2018). P

250  Francesco Viganò encompass all the other ‘practices similar to slavery’ defined by the 1956 Supplementary Convention; a practice that is ‘similar’ to another is not, after all, ‘identical’ to it, and under the criminal law, mere similarity is never a good reason for treating two different actions in the same way. Already in its blanket reference to ‘slavery’ and ‘servitude’ in section 1(1)(a) of the UK Act is consequently rather vague in terms of its boundaries. But major problems arise, in my opinion, from section 1(1)(b), where reference is made to ‘forced or compulsory labour’. The notion of ‘forced or compulsory labour’ is, as mentioned in the Explanatory Notes,25 defined by an International Labour Organization (ILO) Convention signed in 193026 as (Article 2(1)): [A]ll work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.27

It is apparent that the key requirement of the conventional definition is the non-voluntary nature of the work or service performed by the victim. The problem, however, is that the voluntary/non-voluntary dichotomy, as is well known in legal and moral philosophy, covers a whole spectrum of situations that may be arranged along a continuum.28 We would have no doubt in considering as ‘non-voluntary’ a situation whereby a woman is forced into prostitution under serious threats of death, from which she has no realistic escape. However, we might well take a different view as to whether a woman’s choice to engage in prostitution is voluntary or not where she is an illegal migrant and sees no other practical option than to continue to work for her pimp in order to earn a living. Since it is impossible to subsume the latter situation under the traditional notions of ‘slavery’ or ‘servitude’, could it then arguably be considered as an example of ‘forced or compulsory labour’ under section 1(1)(b) of the UK Act? To add some more confusion, section 1(5) of the UK Act provides that: The consent of a person (whether an adult or a child) to any of the acts alleged to c­ onstitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.

This is equivalent to saying that work to which the person has consented may ­nevertheless be treated as non-voluntary. Precisely in order to assist law enforcement agencies and courts when dealing with these kinds of puzzle, section 1(4) of the Act enumerates some of the factors that may be taken into account when determining whether a person is being held in slavery or

25 Explanatory Notes to the Modern Slavery Act, Background, No 6 (available at www.legislation.gov.uk/ ukpga/2015/30/notes/division/3). 26 The subsequent 1957 ILO Convention concerning the Abolition of Forced Labour (Convention No 105) requires states parties ‘to suppress and not to make use of any form of forced or compulsory labour’, but does not contain any new definition of the concept, thereby implicitly referring to the 1930 definition. 27 Convention Concerning Forced or Compulsory Labour, adopted in Geneva on 28 June 1930. 28 For an insightful discussion of this topic, particularly in the context of sexual offences, see, eg, AP Simester, JR Spencer, F Stark, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law, 6th edn (Oxford, Hart Publishing, 2016) 481–83 and 788–96.

Rethinking the Model Offence  251 servitude or is required to perform forced or compulsory labour. Specifically, regard may be had: (a) to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).

In an effort to overcome the vagueness implicit within the key concept of ‘forced or coerced labour’ as defined in the relevant ILO Convention, the UK Act refers to two other key concepts: vulnerability and exploitation. Whilst vulnerability is not defined by the provision, which only provides a non-exhaustive list of ‘red flags’ that are indicative of a possible situation of vulnerability (age, family relationships, mental or physical illness), section 3(3)–(6) does contain a list of situations (apparently a closed list) that amount to exploitation: sexual exploitation (section 3(3)), removal of organs (section 3(4)) and – crucially – ‘securing services by force, threats or deception’ (section 3(5)) and ‘securing services from children and vulnerable persons’ (section 3(6)). It hence follows that, reading section 1 in conjunction with section 3, we should conclude that ‘forced or compulsory [ie, non-voluntary] labour’ is likely to exist, inter alia, (a) when a person has been coerced by force or threats, or induced by deception, to secure services or benefits of any kind to another person (section 3(5)), or (b) when a person is a vulnerable person (with respect to age, physical or mental illness or family relationships) and is used by another person to secure services or benefits of any kind for himself or herself or a third person, in a situation where a non-vulnerable person would have likely refused to be used for such purposes (section 3(6)). As a result, in this last instance – which is crucial for the solution of hard cases, such as our previous prostitute example – the actus reus is in fact made dependent on a ­combination of three vague concepts – ‘non-voluntariness’, which derives from the international definition of ‘forced and compulsory labour’, ‘exploitation’ and ‘vulnerability’. Unfortunately, the confluence of three vague concepts does not result in a precise concept; the application of the offence will ultimately remain dependent on the free assessment of prosecutors and courts. But the problem of the UK offence results not only from its vagueness: its overinclusivity also raises serious concerns. The wording of section 1(1)(b) covers even a single act (circumscribed in space and time) of coercion or inducement of a person, by deception or abuse of his or her situation of vulnerability, to provide some service or benefit to someone else. Consequently, any person who ‘requires’ another to perform such an act – even if it is not necessary that the other person complies with the request – may be found guilty of the offence, for which he or she could theoretically be sentenced to life imprisonment(!) under section 5 of the Act. This is a strikingly disproportionate sentence indeed for what would in other legal systems amount to no more than the simple offence of ‘coercion’, which is usually punished by a fine or a short term of imprisonment.29



29 See

also the chapter by Thorburn in this volume (section II.B).

252  Francesco Viganò B. Germany Germany is a second interesting example of a jurisdiction that in fact recognises a variety of modern slavery offences, albeit under a different name. As a consequence of a thorough reform in 2016,30 paragraph 232 of the German Criminal Code criminalises human trafficking, following very closely the patterns of the international instruments applicable in this field. The new provision encompasses (a) the recruitment, transportation, transfer, harbouring or reception of a person, (b) by means of the use of force, threats, fraud, abduction, abuse of a situation of personal or financial vulnerability or helplessness connected with the circumstance of residing in a foreign country, (c) for the purpose of exploitation through prostitution or other sexual acts, services of any kind, begging or criminal activities. The maximum penalty is lower (five years) when the means involves merely abuse, and is raised to 10 years in cases involving force, threats, fraud or abduction. No particular means are required if the victim is a person under the age of 21. Paragraph 232(1)(2) contains a general definition of ‘exploitation’, which consists in an activity, obtained by the perpetrator for his or her personal gain, performed by the victim under working conditions that are clearly discrepant from those of other workers performing the same or a similar activity. The following four paragraphs criminalise various courses of behaviour that share the requirement of the victim’s actual exploitation, in situations – respectively – ­involving ‘forced prostitution’ (paragraph 232a, which is also applicable to the occasional client of the prostitute), ‘forced labour’, including slavery and servitude (paragraph 232b), ‘exploitation of labour’ (paragraph 233) or ‘exploitation of a person deprived of his or her liberty’ (paragraph 233a). In general, these offences are punished more harshly than trafficking, with the severity of punishment being dependent on the nature of the coercive or abusive means used as well as on the seriousness of the exploitation; moreover, they do not require that the victim has been previously subjected to any of the courses of behaviour conceptualised as trafficking in paragraph 232. The German Criminal Code therefore seems to reflect the idea that the transportation (or harbouring, receiving etc) of persons with a view to their (future) exploitation amounts in general to a less serious offence than their actual exploitation, which is in fact the behaviour that directly harms the victims’ interests. Furthermore, this lesser offence could be easily conceptualised as a precursor, on ancillary, offence in respect of the main offences involving the victims’ exploitation. It would appear that the main flaw within the German law is, once again, the ­over-inclusivity of the provisions set forth by paragraphs 232a–233a, which are not confined to situations of ‘modern slavery’ characterised by a stable relationship of power between perpetrator and victim, but also encompass – in a similar manner to the UK ­legislation – instances involving the coercion (by force or threats) or inducement (by deception or abuse of a position of vulnerability) of the victim to engage in p ­ articular

30 See AA Spitz, Strafbarkeit des Menschenhandels zur Ausbeutung der Arbeitskraft (Wiesbaden, Springer, 2017).

Rethinking the Model Offence  253 acts, isolated in time and space – such as coercion to engage in isolated sexual acts, which may result in the commission of the offence under paragraph 232a, but are hardly distinguishable from ordinary acts of rape. Moreover, common instances involving the exploitation of work by foreign nationals could easily fall under paragraph 233 – together with most serious forms of servitude – if the working conditions were held to be ‘clearly discrepant to those of other workers performing the same or similar activities’, which is probably too much to be covered by one single criminal provision. C. Italy A third interesting example is the Italian legislation.31 Article 600 of the Italian Penal Code, which in its original version enacted in 1930 described the offence of ‘Slavery and conditions similar to slavery’ and now provides that whoever: (a) exercises over a person powers attaching to the right of ownership, or (b) reduces a person ‘V’ to, or holds V in, a state of persistent subjection by means of force, threats, deception, abuse of power, abuse of a situation of vulnerability or of a physical or mental disability or of a situation of necessity, or by giving or promising payments or benefits to a person having control over V, and compels V to provide labour or sexual services, or to perform illicit activities implying his or her exploitation, or to be subjected to the removal of his or her organs,

is liable to a term of imprisonment of up to 20 years. This provision contains two different offences. The first, (a), is committed when a person holds another person in a state that falls under the exact wording of the ­definition of ‘slavery’ in the 1926 Geneva Convention. The second, (b), requires proof of two ­different courses of conduct by the defendant: on the one hand, he or she must be shown to have reduced the victim to, or held the victim in, a ‘state of persistent subjection’ through at least one of the means listed in the provision, which closely follows the model of the Palermo Protocol and subsequent instruments; on the other hand, he or she must be shown to have compelled the victim to engage in one of the activities listed in the same provision. First of all, it is apparent that the Italian model is intended to directly tackle the ­behaviour that ultimately harms the victim’s interests and, in particular, his or her freedom to self-determination – of which the victim is completely deprived in the instances involving ‘slavery’, and which is severely impaired in those involving ‘persistent subjection’ to another person. The different situation under which the victim is transferred from one place to another with a view of his or her subsequent exploitation is covered – in a similar manner to the UK and Germany – by another provision (Article 601), which is conceived of as an ancillary offence to the basic offence provided for under Article 600 (although it is, illogically, subject to the same penalty).

31 See extensively on these provisions F Viganò, ‘Art. 600’, ‘Art. 601’ and ‘Art. 602’ in E Dolcini and GL Gatta (eds), Codice penale commentato, 4th edn (Milan, Ipsoa, 2015) 179–203, 274–82.

254  Francesco Viganò Article 600 does not define the crucial concept of ‘state of persistent subjection’. Obviously, this expression must refer to something else (and less) than a state of ‘­ slavery’, which is mentioned in the first part of the provision. However, there is no reason to confine the concept to the situations explicitly mentioned in the 1956 Supplementary Convention or to the concept of ‘servitude’ as defined by international human rights law. It is by contrast arguable that a ‘state of persistent subjection’ may in general be deemed to subsist whenever a person (i) finds himself or herself under the de facto authority of another person, or even under his or her de jure authority, where the legitimate holder of that authority abuses it, and (ii) has no practical alternative but to remain under this authority, without any requirement that his or her freedom of movement is impaired stricto sensu. Yet, it is essential that this state is ‘persistent’, ie, reasonably prolonged in time and not merely occasional, albeit not necessarily ‘permanent’. In practice, the provision seems to cover precisely the situations referred to above, as modern forms of slavery, or simply ‘modern slavery’. Furthermore, the victim’s decision to deliver himself or herself into this state, or to remain in it, must not be fully voluntary. Indeed, his or her decision must be brought about by coercion (force or threats), deception or abusive behaviour by the person exercising the authority, or by the fact that the victim has been, in some way, ‘purchased’ by such a person through a payment given or promised to the person who previously exercised authority over the victim. In order to secure a conviction for the offence, the prosecution must finally prove that the victim, while finding himself or herself in that state, was ‘compelled’ to provide at least one of the types of service or benefit listed in Article 600 to the perpetrator or to a third party, including the removal of his or her organs. The provision does not clarify whether the victim must be compelled through force or threats, as the common understanding of the verb ‘compel’ would suggest, or whether any of the means by which he or she is kept in the state of subjection are sufficient, which would be probably more consistent with the rationale of the provision. In any case, this two-step assessment avoids some of the drawbacks of the UK and German systems. To begin with, a mere situation of labour exploitation of the victims is clearly not sufficient under the Italian provision, which always requires proof of a stable relationship of power between the perpetrator and the victim – a stable relationship, which must be certainly more intense than the usual authority exercised by an employer over his or her employees. In other words, the ‘exploitation’ of the victim must take place within the context of a relationship, in which the victim’s freedom of self-determination – if not necessarily his or her freedom of movement – is severely impaired. Furthermore, the behaviour that must be performed by the victim as a consequence of the perpetrator’s unlawful acts must – perhaps with the sole exception of the removal of organs – consist in an activity, that is, in a series of acts, and not in a single act that is isolated in time and space, as is apparent from the use of the plural in the provision (‘labour or sexual services’, ‘illicit activities’). Therefore, Article 600 seems to encompass only those forms of exploitation of the victim that really deserve to be labelled as ‘modern slavery’, involving the impairment – most and foremost – of the victim’s freedom to self-determination, which is crucial to his or her dignity.

Rethinking the Model Offence  255 V.  A PROPOSAL FOR A NEW MODEL OFFENCE OF ‘SLAVERY AND MODERN SLAVERY’

Based on the suggestions gleaned from this brief comparative excursus, the following model offence of ‘slavery and modern slavery’ could be envisaged: 1.

Each state party shall adopt such legislative and other measures as may be necessary to establish as criminal offences (a) the fact of holding a person ‘V’ in slavery, and (b) the fact of (i)

2.

3.

4.

5.

holding a person ‘V’ in a state of subjection that severely impairs V’s freedom to self-determination by means of force, threats, deception, the abuse of power or of a position of vulnerability, or as a consequence of the giving or promising of payments or benefits to a person who previously exercised control over V, and (ii) coercing or inducing V, by means of force, threats, deception, the abuse of power or of a position of vulnerability, to provide to himself or herself or to another person services or benefits of any kind that involve V’s exploitation. For the purposes of this Article, a position of vulnerability means a situation in which V has no real or acceptable alternative but to submit to the abuse concerned on account of his or her minor age, mental or physical disability, family relationships, status as an illegal immigrant or lack of basic human needs. For the purposes of this Article, V shall be deemed to have been exploited if one or more of the following conditions are met: (a) the services or benefits provided by V are of criminal nature; (b) the fact of inducing or facilitating V to provide the services or benefits required, or of receiving those services or benefits from V, constitutes an offence; (c) V does not receive any pecuniary remuneration for the services or benefits provided; (d) the conditions under which the services or benefits are provided by V are significantly worse than those that a person who is not held in a state of subjection would possibly accept within a free negotiation at the relevant time and place. If V is a minor, he or she shall also be deemed to have been exploited if (a) he or she is used in an armed conflict, or (b) if he or she is engaged in employment, if he or she has not reached the minimum working age for such employment. For the purposes of the determination required in paragraph 3(d), regard may be had to all relevant circumstances, including the nature of the work required, the overall health and safety conditions under which the work is expected to be performed, the amount of remuneration, the length and distribution of working hours and the duration of holidays.

The proposal would establish two basic offences: first, the traditional offence of ‘slavery’, which is based on the definition provided under the 1926 Geneva Convention, which probably does not require any further clarification, also in the light of the practical disappearance of situations properly amounting to slavery; and, second, a new offence of ‘modern slavery’, which borrows its name from the UK legislation. The two offences share the two essential features that derive from the very concept of slavery in its historical dimension: radical impairment of the victim’s freedom, and the victim’s severe exploitation.

256  Francesco Viganò As regards the former requirement,32 it is worth stressing once again that impairment of freedom is not equivalent to a complete loss of freedom of movement, as is the case for the offences of kidnapping or false imprisonment. What is necessary is that the victim is deprived, as an effect of another person’s unlawful conduct, of the possibility to make autonomously the fundamental choices affecting his or her existence, including a change of job or residence, and removal to a different location in search of a better life. In a nutshell, the victim must be deprived of his or her freedom of self-determination, which shall be considered as the fundamental legal interest protected by the offence. With particular regard to the offence of ‘modern slavery’, the proposal seeks to encapsulate the essence of the loss of the victim’s self-determination through the concept of ‘state of subjection’, which is borrowed from the Italian provision examined above. The basic idea is that the prosecution will have to prove the existence of a stable relationship of power and submission between the perpetrator and the victim,33 from which it would be extremely difficult – if not absolutely impossible – for the victim to exit, and which must be such as to severely restrict the victim’s freedom to shape his or her own fate. The reference to a ‘state’ should make clear the continuous character of the new offence, which requires proof of a state of affairs (which is at least relatively stable in time), instead of one or more specific acts performed by the defendant. On the other hand, in order to maintain the victim in this state of subjection – ie, in order to prevent him or her from free himself or herself from the dependence – the defendant must deploy at least one of the means listed in the provision, which substantially correspond to those mentioned in the Palermo Protocol: force, threats (not only limited to threats to use of force, and therefore also encompassing the ‘other forms of coercion’ to which the Protocol refers), deception (ie, fraud, in the language of the Protocol), abuse of power, abuse of a position of vulnerability, and giving or promising payments or benefits to a person who previously exercised control over the victim. The inclusion in the list of ‘abduction’, mentioned in the Palermo Protocol, would probably be superfluous, since abduction always involves one of the other means already mentioned in the provision. On the other hand, the list encompasses the giving or promising of payments to a person who previously exercised control over the victim, as this course of conduct typically creates a situation of subjection in the person who has been ‘purchased’ by his or her ‘master’. This suggests, in my view, that the prosecution should in such cases be relieved from the burden of proving the use by the defendant of any other coercive or abusive means. As a consequence of the requirement for the use of specific means in order for the offence to be committed, the victim’s free consent to remaining subjected to another person’s authority would be inconsistent with the offence, which requires either that the victim is kept under the perpetrator’s authority against his or her will (through sheer force, for example), or that his or her will to remain in this state is vitiated so as not to be legally recognised as ‘free’ will. Hence, the situation of a woman who is willing to remain

32 Which is absent from the international instruments on human trafficking, as well as from the UNODC, Model Law on Trafficking in Persons (Vienna, UNODC, 2009). 33 See extensively on this point the chapter by Thorburn in his volume (section III.B): an ongoing (and longterm) relationship of services should be required in order to identify an instance of trafficking, whereas a single act of service should not suffice.

Rethinking the Model Offence  257 subject to her husband, without being forced to be so and without being unlawfully induced to accept her condition, would clearly fall outside of the scope of the offence. The choice to include in the list the mere ‘abuse of a position of vulnerability’34 requires some further explanation, in view of the well-founded concerns raised by distinguished legal scholars – including in this very volume35 – about the vagueness and in any case over-inclusivity of this concept for the purposes of establishing a criminal offence.36 I fully recognise the force of these objections; however, in the provision proposed here, the focus of the actus reus – and, consequently, of the criminal behaviour encompassed by the offence – would be on the existence of a status of subjection, ie, a relationship of power of one person over another person fully outside the control of any public institution, which is per se a situation that should be regarded with suspicion by the law. The only good reason for a legal system to tolerate such a situation is its acceptance by the subjected person, as an act of exercise of his or her freedom. However, in my opinion, the law has every reason to be especially cautious here and to require a full degree of liberty in the original choice, with the result that even the subtle conditioning of another person’s will, such as the mere abuse of his or her special vulnerability, should – as far as I can see – be deemed to be sufficient to justify the intervention of the criminal law in order to effectively protect his or her most fundamental right to freely decide over his or her destiny. The risks of vagueness inherent within the concept, which have been pointed out by legal scholars, can probably be shielded – at least to a certain extent – by providing a general definition in terms identical to those currently used under international law (‘a situation in which V has no real or acceptable alternative but to submit to the abuse concerned’) and in addition by establishing a closed list37 of indicators of a situation of vulnerability, which should include minor age, mental or physical disability as well as the situation of helplessness resulting from status as an illegal alien, which is frequently exploited by ‘modern slavers’, as is shown by criminological experience. Furthermore, a situation of dire poverty – here rather cautiously formulated as ‘lack of basic human needs’38 – could be fairly included in this list, as this concept is already familiar to many legal systems, albeit under different names and for different purposes (for example, in many jurisdictions a lack of basic human needs can substantiate a defence of necessity or duress, ruling out criminal responsibility for an act which would otherwise constitute an offence). In addition to the state of subjection, brought about through one of the means listed in the provision, the prosecution would have also to prove the second element that 34 On this requirement, see, extensively, UNODC, Abuse of a Position of Vulnerability and Other ‘Means’ within the Definition of Trafficking in Persons (New York, United Nations, 2013). 35 See the thorough analysis in the chapter by Bergelson in this volume. 36 The UNODC states that the concept ‘was included, at the last minute, within the means element of the definition of trafficking’ and that ‘there is also some indication that the very ambiguity of the term was ­deliberate’: see UNODC, Abuse of a Position of Vulnerability (2013) 25. 37 Compare, instead, the UNODC, Model Law (2009) 15, where the list of factors to be taken into consideration in order to identify a situation of ‘abuse of vulnerability’ is kept open by a general clause mentioning ‘other relevant factors’. 38 Which should be more restrictive (and therefore more precise) than the expression ‘Being in a precarious situation from the standpoint of social survival’ contained in the UNODC (n 32).

258  Francesco Viganò c­ haracterises any situation involving both ‘traditional’ and ‘modern slavery’; ie, it would also have to prove that – while being in that condition – the victim has been coerced, or induced, to provide to the perpetrator or a third party certain ‘services or benefits’ that involve the victim’s exploitation. The need for this second requirement could be questioned by arguing that the existence of a state of subjection of the victim, maintained through unlawful means, already catches the essence of the harm caused by the offence, ie, the violation of the victim’s self-determination. However, the practical advisability of a further test focusing on the coercion (or inducement by an unlawful means) of the victim to engage in an activity that entails his or her exploitation arises from some remaining risks that the requirement of a ‘state of subjection’ may be over-inclusive. Otherwise, it could easily be extended, for example – on the basis of the literal meaning of the provision – to certain marital relationships established through one of the means contemplated under the provision (such as financial negotiation between the families of the spouses), in which the wife is subjected to the very far-reaching authority of her husband according to the traditional customs shared by the couple. The provision should therefore only capture a situation – which is typical of the ‘forced marriages’ to which the international law refers39 – where the ‘purchased’ wife is coerced or induced, against her will, by her husband to perform services of any kind (including of a sexual nature). The coercion or inducement should be brought about through at least one of the means used to hold the victim in a state of subjection, with the sole exception of the giving or promising of payment or benefits to a person who previously exercised ­authority over the victim which, taken as such, could hardly be considered as a good reason for the latter acting in a particular way. The wording of the provision, and in particular the use of plurals ‘services or benefits’, makes it clear that the coercion or inducement to engage in a single act – of whatever nature – would not be sufficient in order for the offence to be committed. This would also avoid the risks of over-criminalisation implicit within the UK 2015 Act and the German legislation, which, as noted above, cover the mere coercion of the victim to engage in a single act – a fact that has nothing in common with the paradigm of the ­traditional ‘slavery’, from which the offence of ‘modern slavery’ is inspired. Finally, the services or benefits provided by the victim should entail the victim’s ­exploitation, as it is typical of any situation of ‘slavery’ or of anything similar to it. The admittedly vague notion of ‘exploitation’40 is defined by paragraph 3 of the proposed provision through the enumeration – in a closed list – of the situations that constitute exploitation for the purposes of the proposed provision.41 First, the victim shall be considered to have been ‘exploited’ if he or she is coerced or induced to provide services or benefits of a criminal nature. This should be without

39 See UNODC (n 32) 35. 40 See generally on this concept UNODC, The Concept of Exploitation in the Trafficking of Persons Protocol (Vienna, United Nations, 2015), especially 21–39. 41 Unlike the standard provision contained in the relevant international instruments, the list does not include slavery, which is already mentioned by the provision as a separate offence, as an alternative to ‘modern slavery’. On the other hand, the list proposed here attempts to capture all other instances of exploitation mentioned in those international instruments as well as in UNODC (n 32) 35–36.

Rethinking the Model Offence  259 prejudice to any potential criminal liability of the victim himself or herself (if he or she is not excused by necessity or duress), and in any case to the criminal liability of the perpetrator as an accessory to the offence(s) committed by the victim. Second, exploitation will occur if the fact of inducing or facilitating the services or benefits required, or of receiving those services from the victim, in itself amounts to a crime. This will be the case, for example, when the victim is a minor who is forced or induced into prostitution or to engage in pornographic performances, as well as in cases involving the exploitation of prostitution by an adult victim in legal systems that recognise this offence. Furthermore, the removal of organs will also fall under this category, provided that this is performed without the victim’s consent or without regard to the legal conditions established under the relevant legal system. Third, and turning to the more difficult cases of ‘labour’ exploitation,42 a victim will undoubtedly be exploited if he or she does not receive any pecuniary remuneration for the services or benefits provided. Finally, the victim should also be considered to have been exploited where he or she provides services or benefits under conditions that are ‘significantly more detrimental than those that a person who is not held in a state of subjection would possibly accept within a free negotiation at the relevant time and place’. The formulation seeks to avoid the risk of over-criminalisation, in an effort to avoid labelling all sorts of labour exploitation as ‘modern slavery’. The idea is to narrow the test used by the UK legislation in section 3(6) of the Modern Slavery Act through the insertion of the comparative formula ‘significantly worse’, which is considered to be even more restrictive than the ‘clear discrepancy test’ used by German legislation. The two additional special cases of exploitation laid down in paragraph 4, taken from the UNODC Model Law,43 are tailored to under-age victims – namely, their use in armed conflicts and their use in work where they have not reached yet the working age. Paragraph 5 should offer some assistance to law enforcement officers and courts in determining whether there is a situation of ‘exploitation’, making explicit reference to some indicators – this time in the context of an open-ended list – for the relevant assessment, such as the nature of the work required, the overall health and safety conditions under which the work is expected to be performed, the amount of the remuneration, the length and distribution of working hours, and the duration of holidays. VI.  THE ANCILLARY ROLE OF THE OFFENCE OF ‘TRAFFICKING IN HUMAN BEINGS’ IN THE NEW NORMATIVE FRAMEWORK

Under this new normative framework, which is centred on a provision that aims to ­criminalise directly the ‘final’ harmful behaviour – ie, the victim’s exploitation in the context of a relationship of power that may fairly be described as ‘modern slavery’ – the role of the existing offence of ‘trafficking’, which is centred on the victim’s transfer 42 It is worth noting that the international instruments do not stipulate any obligations to criminalise ­trafficking for the ‘mere’ purpose of ‘labour exploitation’ (as distinct from ‘forced labour’); see UNODC, The Concept of Exploitation (2015) 25–26. 43 UNODC (n 32) 36.

260  Francesco Viganò from a location to another, would only be ancillary; as already stressed, its role would in fact be that of a precursor offence, which anticipates the criminal law reaction to behaviour which may – and most likely will – result in the commission of the main offence of ‘modern slavery’. Conceived as such, the corresponding provision could read as follows: 1. Each state party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence the arrangement or facilitation of the travel of another person ‘V’, knowing that V would most likely be subjected, during or after the travel, to conduct constituting the offence of slavery or modern slavery. 2. For the purposes of this Article, the arrangement and facilitation of V’s travel shall include recruiting V, transporting or transferring V, harbouring or receiving V and transferring or exchanging control over V. 3. It is irrelevant whether V consents to the travel. The proposed drafting would be slightly different from the existing offence for the ­following two basic reasons. First, the alternative requirements concerning the specific means used to acquire the victim’s consent to the transfer – and to the other courses of conduct mentioned in the provision – would be superfluous: even if the victim were to consent fully and freely to be recruited, transported and so on, without being forced, coerced or induced in any u ­ nlawful way, the evil of the perpetrator’s conduct would still result from its being conducive to the subsequent subjection of the victim to the offence of slavery or modern slavery, which of course will then require the use of one of the listed means by its future perpetrator. This also explains why the victim’s consent should here be deemed to be entirely immaterial. Second, it would appear to be advisable to replace the requirement of the specific ‘intention’ to exploit the victim, which characterises the existing model offence, with a simple requirement of ‘knowledge’ of his or her likely fate after arriving at destination, since in most cases the perpetrator will not have – in a proper sense – an intention for the victim to be exploited by himself or herself or by any third person, but will simply be aware that someone else will exploit the victim in the country of destination, while personally remaining indifferent to this further development of events. In order to avoid risks of over-criminalisation, which could affect legal professional carriers transporting potential future victims of ‘modern slavery’, the test of knowledge should be set at a particularly high level, requiring ‘high likelihood’, or even ‘virtual certainty’, of the future victimisation of the transported person(s). The use of the verb ‘knowing’, though conceptually referred to the mens rea, makes it clear that the victim must in fact be exposed to a very high risk of being subjected to slavery or modern slavery; a genuine, but erroneous, ‘belief’ in such a risk would clearly be insufficient even to constitute the actus reus of the offence. The fact that it is impossible to prove the element of knowledge would not necessarily mean that the person transporting future victims of slavery and modern slavery will go unpunished. If the victims are – as is usually the case – foreign nationals who are illegally taken into the destination country, it will still be possible for law enforcement officers to charge their carriers as ‘smugglers of migrants’ and to obtain harsh sentences for them,

Rethinking the Model Offence  261 especially when transportation has occurred in conditions that endangered the migrants’ lives or safety, or that entailed inhuman or degrading treatment (both circumstances being considered as aggravating circumstances for the model offence of smuggling of migrants in the Palermo Protocol). Finally, a provision to this effect would apply only in the event that the perpetrator’s complicity in the ‘final’ offence of slavery and modern slavery, or his or her direct membership of the criminal organisation involved in those final offences, could not be determined. If this were possible, the perpetrator could be convicted as an accomplice to these latter offences, or as a member of the criminal organisation. VII. CONCLUSION

This chapter started with a negative evaluation of the existing model offence of ‘trafficking in human beings’, as shaped by the Palermo Protocol and the subsequent supranational instruments that have closely followed its contours. I strongly believe that the current legal framework, which is focused on the transportation of the victims rather than their final exploitation, is conceptually flawed and – even more importantly – results in insufficient protection for the victims from the national law enforcement agencies, while prompting them to concentrate their efforts on border control rather than on detecting the worst forms of exploitation of human beings, which take place within the national borders. I have then endeavoured to imagine, with the assistance of suggestions drawn from comparative legal experience, a new model offence that is directly centred on these ­criminal phenomena and have suggested that – following the recent UK legislation – this offence be termed ‘modern slavery’. In respect of this new offence, the existing model offence of ‘trafficking’ could still work, with some minor adjustments, as an ancillary offence or a precursor offence. The major challenge has been to shape a model offence that is capable of covering the worst cases of ‘modern slavery’, while avoiding – or at least trying to avoid – in particular two interconnected dangers, which are – incidentally – already inherent within the existing legal framework for ‘trafficking’, namely, vagueness and over-inclusivity. The latter danger is probably the most worrying: nothing harms the prestige of a supranational instrument that seeks to harmonise national criminal laws more than its excessive scope, which would result from the bringing together under the umbrella of one single offence courses of conduct that differ significantly in terms of their seriousness – from the most heinous crimes to petty offences, which could and should be dealt with by national law, often using instruments other than the criminal law. This is especially so where, as in our case, the offence is labelled in harshly stigmatising terms, such as ‘modern slavery’, which is immediately associated with the idea of the reification of human beings, in flagrant denial of their basic dignity as people. Criminal law is, and should remain, a serious thing, to be handled with caution – even for the international community.

262  Francesco Viganò REFERENCES

Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, Council of Europe, 2005). HM Government, Department of Justice, the Scottish Government and Welsh Government, 2017 UK Annual Report on Modern Slavery (London, UK Home Office, 2017). Horder, J, ‘Crimes of Ulterior Intent’ in AP Simester and ATH Smith (eds), Harm and Culpability (Oxford, Clarendon Press, 1996) 153–72. Krieg, S, ‘Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights’ (2009) 15 European Law Journal 775. Marinucci, M and Dolcini, E, Corso di diritto penale, 3rd edn (Milan, Giuffrè, 2001). O’Connell Davidson, J, ‘New Slavery, Old Binaries: Human Trafficking and the Borders of “Freedom”’ (2010) 10 Global Networks 244. Shin, YJ, ‘Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses’ (2015) 48 Vanderbilt Journal of Transnational Law 753. Simester, AP, Spencer, JR, Stark, F, Sullivan, GR and Virgo, GJ, Simester and Sullivan’s Criminal Law, 6th edn (Oxford, Hart Publishing, 2016). Southwell, P, Brewer, M and Douglas-Jones, B, Human Trafficking and Modern Slavery: Law and Practice (London, Bloomsbury Professional, 2018). Spitz, AA, Strafbarkeit des Menschenhandels zur Ausbeutung der Arbeitskraft (Wiesbaden, Springer, 2017). United Nations Office on Drugs and Crime (UNODC), Model Law on Trafficking in Persons (Vienna, UNODC, 2009). ——. Abuse of a Position of Vulnerability and Other ‘Means’ within the Definition of Trafficking in Persons (New York, United Nations, 2013). ——. The Concept of Exploitation in the Trafficking of Persons Protocol (Vienna, United Nations, 2015). ——. Global Report on Trafficking in Persons 2016 (New York, United Nations, 2016). Viganò, F, ‘Art. 600’, ‘Art. 601’ and ‘Art. 602’ in E Dolcini and GL Gatta (eds), Codice penale commentato, 4th edn (Milan, Ipsoa, 2015) 179–203, 274–82.

Index Abuse of a position of vulnerability (APOV) concluding remarks  213–15 free-floating evil  209–10 importance  194 meaning of the term  201 necessary conditions  201 problems of consent  204–9 special place in the realm of ‘means’  199–200 two distinct concepts  200–1 Action of trafficking alternative courses of action  240 Canadian approach  169 coercion  208 consent  208 element of trafficking  195 moral neutrality  196–7 relationship with vulnerability  203–4 UK approach  167 ‘Anti-slavery project’ central question arising  14–15 importance of cultural difference  16–17 key developments of law  21 origins of modern beliefs  15–16 overarching framework of modern criminal law  31–2 relation to the modern understanding of the market  17–18 shaping of proper scope of civil and criminal law  18 white slave trade 1870–1920  21–4 Area of Freedom, Security and Justice duties to criminalise trafficking  103 expressive dimension and obligation to criminalise  107–10 focus on judicial cooperation  81–2 implications of mixed migration  99–101 multifaceted regulatory function  104–5 Autonomy criminalisation of forced labour direct and indirect coercion distinguished  222 negative and positive freedom  220–2 unfair use of circumstances  222–4 effect of slavery  248 human trafficking as a crime against persons  126–7 labour exploitation  179–80 ‘means’ listed in Palermo Protocol  197–202

proper scope of the criminal law  125 protection of human dignity  210–13 Swedish approach  137 Canada core wrong associated with trafficking  242 National Action Plan  160–4 specific wrong of trafficking  167–70 Collective interests human trafficking and  131–2 proper scope of the criminal law  125–6 whether to be protected  134 Consent human trafficking as a crime against persons  127–30 inability to apply to multiple interests  143 inequality of bargaining power  186 labour exploitation Art 8 ICCPR and Art 4 ECHR  228–9 concluding remarks  233–6 consensual, mutually advantageous, exploitative labour  231–2 deficiencies of international instruments  226–8 economic development as relevant factor  232–3 specific wrongs of trafficking  179–80 Van der Mussele case  229–31 underlying principle of criminalisation  204–9 voluntarily and mutually beneficial exploitation  185–8 Crime prevention diverse needs of different victim categories  63–5 need to factor multifarious activities  68–72 underlying concept  65–8 Crimes against persons autonomy and liberty rights  126–7 criminalisation of exploitation  149–53 no single uniform answer  130–1 right not to be exploited  127–30 Swedish approach  137–8 what the trafficker does  153–6 Criminalisation ‘anti-slavery project’ as overarching framework  31–2 carriers  141–2 consequences of human rights activism  117–18

264  Index current model offence deficiencies  239–41 implied harm  241–2 means  242–4 demand for ‘closeness’ to victim  146–9 differences in construction of offence  5 exploitation  149–53 human trafficking as a crime against collective interests  130–1 human trafficking as a crime against persons autonomy and liberty rights  126–7 no single uniform answer  130–1 right not to be exploited  127–30 Swedish approach  137–8 increasing attention from legislators  1 internationalisation of legal regime human trafficking  24–6 slavery  26–7 key EU documents  80 labour exploitation concluding remarks  226 direct and indirect coercion distinguished  222 factors of exploitation  219–20 negative and positive freedom  220–2 unfair use of circumstances  222–4 violation of negative liberty  224–6 legal recognition of victimhood  58–60 legally protected interests  141 mixed migration to EU concluding remarks  112–13 EU duties to criminalise trafficking  101–4 expressive dimension and obligation to criminalise  107–10 justification for current forms of regulation  105–7 obligations of national courts  110–12 Modern Slavery Act  2015 exploitation  182–3 force, threats and vulnerability  182 legislative provisions  181–2 ‘over-criminalisation’ of modern slavery  184–5 modern slavery legislation  14 new initiatives against trafficking from 1990s  28–31 observed low conviction rates  3 Palermo Protocol see Palermo Protocol production of perpetrators as well as victims  144–6 proper scope of the criminal law concluding remarks  132–4 doctrinal, ethical and political challenge  194 protection of individual rights and collective interests  125–6 protection of legal goods  124–5

protection of values  123–4 ultima ratio  122–3 proposed new model offence ancillary offence of ‘trafficking’  259–61 concluding remarks  261 focus on exploitation  244–5 four major challenges  245 German approach  252–3 Italian approach  253–4 ‘slavery and modern slavery’  255–9 slavery as core behaviour  246–9 UK approach to modern slavery  249–51 protection of multiple interests  142–3 slavery and its abolition key developments of law  21 legality of slavery  19 Swedish approach concern for trafficking purposes  138–9 human trafficking as a crime against persons  137–8 underlying principles harm and consent  204–9 immorality  209–10 protection of human dignity  210–13 what the trafficker does  153–6 white slave trade Criminal Law Amendment Act 1885  22–3 focus in the law and enforcement on ‘trafficking’  24 ‘Crimmigration’  2, 60 Culture anti-human trafficking activities  121 category of rights  88 exploitation  202 social recognition of victimhood  57–8 vulnerability  90 Data see Statistics and data Development see Economic development Dignity see Human dignity Economic development concluding remarks  233, 236 effect of repression of human trafficking  218–19 need for acceptable working situations  11 relevance  232–3 European Union Area of Freedom, Security and Justice duties to criminalise trafficking  103 expressive dimension and obligation to criminalise  107–10 focus on judicial cooperation  81–2 implications of mixed migration  99–101 multifaceted regulatory function  104–5

Index  265 concept of ‘servitude’  247 crime prevention policies  64–5 EU Action Plan on migrant smuggling new priorities  82–3 underlying aim  83–4 focus on victims of trafficking  89–91 key documents  80 legal recognition of victimhood  59–60 mixed migration concluding remarks  112–13 duties to criminalise trafficking  101–4 expressive dimension and obligation to criminalise  107–10 justification for current forms of regulation  105–7 obligations of national courts  110–12 Monitoring Agency on trafficking  41–2 need for new focus on individual protection  91–4 paradoxes of vulnerability  87–9 particular problems  79 proper scope of the criminal law protection of individual rights and collective interests  125–6 protection of legal goods  124–5 protection of values  123–4 rise in irregular migration  77–8 Exploitation see also Labour exploitation criminalisation  149–53 criminalisation of forced labour concluding remarks  226 direct and indirect coercion distinguished  222 factors of exploitation  219–20 negative and positive freedom  220–2 unfair use of circumstances  222–4 violation of negative liberty  224–6 curtailment of liberties  218–19 deficiencies of current model offence  241 difficulties of understanding  5–6 focus of Modern Slavery Act 2015  29–30 human trafficking as a crime against persons  127–30 main substantive consideration in the law early prohibition of slave trade  171–3 ending of white slavery  173–5 Modern Slavery Act 2015  182–3 proposed new model offence  244–5 purpose under Palermo Protocol  202–4 Forced labour see Labour exploitation Germany approach to modern slavery  252–3 definition of human trafficking  118 difficulties of measuring human trafficking  47

legal recognition of victimhood  60 proper scope of the criminal law (Rechtsgüterschutz)  124–5, 141 specific wrong of trafficking  170 Globalisation  10, 31–2, 217 Harboring see Action of trafficking Harm criminalisation when lack of harm  234 current model offence deficiencies  239–41 implied harm  241–2 German approach  252 Italian approach  253 labour exploitation  177, 231 mixed migration  107 Modern Slavery Act 2015  182 new normative framework  259 purpose of exploitation  190, 202–3, 225–6 rethinking the modern offence of trafficking  240–1, 244, 248 underlying principle of criminalisation  204–9 what the trafficker does wrong  147, 154–5, 157 ‘Hierarchy of victimhood’  56 Historical developments of trafficking and slavery ‘anti-slavery project’ central question arising  14–15 importance of cultural difference  16–17 key developments of law  21 origins of modern beliefs  15–16 overarching framework of modern criminal law  31–2 relation to the modern understanding of the market  17–18 shaping of proper scope of civil and criminal law  18 importance  14 internationalisation of legal regime human trafficking  24–6 slavery  26–7 new initiatives against trafficking from 1990s  28–31 slavery and its abolition British civilising mission  20–1 legality of slavery  19 role of Quakers  19–20 white slave trade 1870–1920 criminalisation  22–3 first use of term  21 procuring underage girls  22 regulation of prostitution and the suppression of vice  22 Human dignity crimes against persons  155 underlying principle of criminalisation  210–13

266  Index Human rights benefits of central focus  132 concept of ‘servitude’  247 consent and forced labour Art 4 ECHR  228–9 consensual, mutually advantageous, exploitative labour  231–2 Van der Mussele case  229–31 consequences of activism for criminal law  117–18 focus on forced labour  218 focus on vulnerability  87–9 impact of irregular migration  78 mixed migration to EU  103–4 multifaceted regulatory function of mixed migration  104–5 problems for criminal law theory  133 Human trafficking see also Slavery as crime against collective interests  131–2 as crime against persons autonomy and liberty rights  126–7 no single uniform answer  130–1 right not to be exploited  127–30 Swedish approach  137–8 criminalisation of exploitation  149–53 current model offence deficiencies  239–41 implied harm  241–2 means  242–4 differences in construction of offence  5 difficulties of understanding  5–6 effect of gap between rich and poor countries  217–18 EU Action Plan new priorities  82–3 underlying aim  83–4 historical developments see Historical developments of trafficking and slavery implications of mixed migration  99–101 increasing attention from legislators  1 international law definitions  118–20 justification for current forms of EU regulation  105–7 legal concept  84–5 mixed migration to EU concluding remarks  112–13 expressive dimension and obligation to criminalise  107–10 justification for current forms of regulation  105–7 multifaceted regulatory function  104–5 obligations of national courts  110–12

proposed new model offence ancillary offence of ‘trafficking’  259–61 concluding remarks  261 focus on exploitation  244–5 four major challenges  245 German approach  252–3 Italian approach  253–4 ‘slavery and modern slavery’  255–9 slavery as core behaviour  246–9 UK approach to modern slavery  249–51 smuggling distinguished  85–7, 94–5 specific wrong Canada  167–70 concluding remarks  175–6 exploitation  171–5 Germany  170–1 overview  159–63 Palermo Protocol  163–6 United Kingdom  166–7 specific wrongs exploitation  182–3 focus on conditions of work  187–8 labour exploitation  178–81 mistaken focus on immigration  188–90 modern slavery in UK  181–2 non-doctrinal approach  177–8 ‘over-criminalisation’  184–5 three key issues  184–5 voluntarily and mutually beneficial exploitation  185–8 statistics and data see Statistics and data triangle of complex interplays  2–6 tripartite structure of definition  28–9 two alternative forms  4–5 vulnerability see Vulnerability Ideal victims focus on the sexual exploitation  61 ‘hierarchy of victimhood’  56 need to factor multifarious activities  68–72 underlying concept  55 Immigration see Migration Inequality crimes against persons  154 ECtHR use of term  89 effect of gap between rich and poor countries  217–18 vitiation of consent  186 International Labour Organization (ILO) constituents of forced labour  187 mistaken focus on immigration  189 notion of ‘forced or compulsory labour’  250 ‘position of vulnerability’  200 victims of trafficking annually and worldwide  3, 38, 218

Index  267 Italy approach to modern slavery  253–4 difficulties of measuring human trafficking  47 estimates of prostitution from NGOs  44 Labour exploitation concept of ‘servitude’  247 consent Art 8 ICCPR and Art 4 ECHR  228–9 concluding remarks  233–6 consensual, mutually advantageous, exploitative labour  231–2 deficiencies of international instruments  226–8 economic development as relevant factor  232–3 Van der Mussele case  229–31 criminalisation concluding remarks  226 direct and indirect coercion distinguished  222 factors of exploitation  219–20 negative and positive freedom  220–2 unfair use of circumstances  222–4 violation of negative liberty  224–6 focus of human rights  218 focus on conditions of work  187–8 human trafficking as a crime against persons  127 key issues  184–5 mistaken focus on immigration  189–90 specific wrongs of trafficking lack of choice  179–80 unacceptable working conditions  180–1 vulnerable victims  178–9 statistics and data household surveys  45–7 importance of terminology  48–9 problem of data validity  39 white slave trade  21 Legal regulations  4 see also Criminalisation Market forces specific wrong of trafficking Canada  167–70 concluding remarks  175–6 exploitation  171–5 Germany  170 overview  159–63 Palermo Protocol  163–6 United Kingdom  166–7 voluntarily and mutually beneficial exploitation  185–8

Means current model offence  242–4 elements of trafficking  195 listed in Palermo Protocol  197–202 special place of vulnerability  199–200 Measurement see Statistics and data Migration focus on victims of trafficking  89–91 human trafficking and collective interests  131–2 human trafficking and smuggling distinguished  86–7, 94–5 mistaken focus on immigration  188–90 mixed migration to EU concluding remarks  112–13 duties to criminalise trafficking  101–4 expressive dimension and obligation to criminalise  107–10 implications of mixed migration  99–101 justification for current forms of regulation  105–7 multifaceted regulatory function  104–5 obligations of national courts  110–12 need for new focus on individual protection  91–4 need to factor multifarious activities  72 new EU agenda on migration new priorities  82–3 underlying aim  83–4 paradoxes of vulnerability  87–9 rise in irregular migration  77 Modern slavery ancillary offence of ‘trafficking’  259–61 comparative approaches Germany  252–3 Italy  253–4 United Kingdom  249–51 definition of human trafficking  118 distinguishing features  248 exploitation  182–3 force, threats and vulnerability  182 legislative provisions  14, 181–2 new initiatives against trafficking from 1990s  28–31 ‘over-criminalisation’  184–5 proposed new model offence  255–9 victims of trafficking annually and worldwide  37–8 Morality abuse of a position of vulnerability (APOV)  201–2 anti-human trafficking campaigns  120–2 human trafficking as a crime against persons  127–9 Palermo Protocol action  196–7

268  Index proper scope of the criminal law  126 specific wrong of trafficking Canada  167–70 concluding remarks  175–6 exploitation  171–5 Germany  170–1 overview  159–63 Palermo Protocol  163–6 United Kingdom  166–7 specific wrongs of trafficking exploitation  182–3 focus on conditions of work  187–8 labour exploitation  178–81 mistaken focus on immigration  188–90 modern slavery in UK  181–2 non-doctrinal approach  177–8 ‘over-criminalisation’  184–5 three key issues  190–1 voluntarily and mutually beneficial exploitation  185–8 three distinct elements of Palermo Protocol action  196–7 concluding remarks  213–15 means  197–202 purpose of exploitation  202–4 underlying principle of criminalisation  209–10 voluntary and involuntary prostitution distinguished  39 what the trafficker does wrong concluding remarks  156–7 exploitation  149–53 legally protected interests and their carriers  141–3 less motivated classification of crime  153–6 perpetrator and victim production  144–9 Swedish approach  137–41 Non-governmental organisations (NGOs) anti-human trafficking campaigns  120–2 estimates of prostitution  44 ideological engagement  3 International Labour Organization (ILO) constituents of forced labour  187 mistaken focus on immigration  189 notion of ‘forced or compulsory labour’  250 ‘position of vulnerability’  200 victims of trafficking annually and worldwide  3, 38, 218 need to factor multifarious activities  68–72 one-dimensional image of the ‘perfect’ victim  60–1 Organ harvesting Palermo Protocol  28–9, 102, 151, 164–6 part of modern slavery  3

right not to be exploited  127 shift in focus  14 US legislation  174 Palermo Protocol definition of human trafficking  118 impact on trafficking  218 legal recognition of victimhood  58 significant legal development  193 specific wrong of trafficking  163–6 template for much national legislation  13 three distinct elements of trafficking action  196–7 means  197–202 moral and legal significance  195–204 overview  195 purpose of exploitation  202–4 trafficking and smuggling distinguished  28 Persons see Crimes against persons Police one-dimensional image of the ‘perfect’ victim  60 ‘over-criminalisation’  184–5 searching for reliable data  43–4 statistics and data  40–2 Policy anti-human trafficking campaigns  120–2 crime prevention diverse needs of different victim categories  63–5 need to factor multifarious activities  68–72 ideological interest of politics  3 mistaken focus on immigration  188–90 value of data  38 Prostitution see Sexual exploitation and prostitution Purpose element of trafficking  195, 202–4 of exploitation  190, 202–3, 225–6 Swedish approach  138–9 Receipt of persons see Action of trafficking Recruitment, transportation, transfer, harboring or receipt of persons see Action of trafficking Sexual exploitation and prostitution anti-human trafficking campaigns  122 human trafficking as a crime against persons  127 internationalisation of legal regime  24 specific wrongs general disagreement  178

Index  269 statistics and data household surveys  45–7 importance of terminology  48–9 problem of data validity  39 searching for reliable data  43–4 Swedish approach  138 trigger for moral panic  2 white slave trade 1870–1920  21–4 campaigns of National Vigilance Association (NVA)  23–4 criminalisation  22–3 first use of term  21 focus in the law and enforcement on ‘trafficking’  24 procuring underage girls  22 regulation of prostitution and the suppression of vice  22 trigger for moral panic  2 Slavery ‘anti-slavery project’ central question arising  14–15 importance of cultural difference  16–17 key developments of law  21 origins of modern beliefs  15–16 overarching framework of modern criminal law  31–2 relation to the modern understanding of the market  17–18 shaping of proper scope of civil and criminal law  18 white slave trade 1870–1920  21–4 events leading to abolition abolition British civilising mission  20–1 legality of slavery  19 role of Quakers  19–20 internationalisation of legal regime  26–7 main substantive consideration in the law early prohibition of slave trade  171–3 ending of white slavery  173–5 modern slavery ancillary offence of ‘trafficking’  259–61 comparative approaches  249–54 definition of human trafficking  118 distinguishing features  248 exploitation  182–3 force, threats and vulnerability  182 legislative provisions  14, 181–2 new initiatives against trafficking from 1990s  28–31 ‘over-criminalisation’  184–5 proposed new model offence  255–9 victims of trafficking annually and worldwide  37–8 proposed new model offence  246–9

white slave trade 1870–1920 campaigns of National Vigilance Association (NVA)  23–4 criminalisation  22–3 first use of term  21 focus in the law and enforcement on ‘trafficking’  24 procuring underage girls  22 regulation of prostitution and the suppression of vice  22 trigger for moral panic  2 Smuggling EU Action Plan new priorities  82–3 underlying aim  83–4 human trafficking distinguished  85–7, 94–5 justification for current forms of EU regulation  105–7 legal concept  84–5 mixed migration to EU concluding remarks  112–13 expressive dimension and obligation to criminalise  107–10 implications of mixed migration  99–101 justification for current forms of regulation  105–7 multifaceted regulatory function  104–5 obligations of national courts  110–12 multifaceted regulatory function of mixed migration  104–5 need to factor multifarious activities  72 trafficking distinguished  28 Statistics and data capture-recapture method of study  47–8 evaluation of policies  38 helpfulness in raising awareness  38 household surveys  45–7 identifying ‘hidden populations’  45 importance  37 importance of terminology  48–9 ‘moving target’ approach  45 need for testing theories  38–9 problem of data validity  39 scarcity of reliable and comparable data  39 searching for reliability  43–4 sources open sources  42–3 police statistics  40–2 victim assistance schemes  42 victims and victimology focus on former victims  62–3 idealised conception of victimhood  60–2 need for more empirically based knowledge  72 victims of trafficking  37–8

270  Index Sweden concern for trafficking purposes  138–9 crimes against persons  137–8 kinds of victimhood  144 unwillingness to convict  138–9 Transfers of property see Action of trafficking Transportation see Action of trafficking United Kingdom approach to modern slavery  249–51 core wrong associated with trafficking  242 definition of trafficking  29 Modern Slavery Act 2015 exploitation  182–3 force, threats and vulnerability  182 legislative provisions  181–2 ‘over-criminalisation’  184–5 police statistics  41 specific wrong of trafficking United States ending of white slavery  173–5 idealised conception of victimhood  61 prosecutions and convictions in 2016  54 Victim offender overlap  2 Victims and victimology see also Vulnerability classification of victims diverse needs of different victim categories  63–5 focus on former victims  62–3 crime prevention diverse needs of different victim categories  63–5 need to factor multifarious activities  68–72 underlying concept  65–8 demand for ‘closeness’  146–9 elusive character of human trafficking  53–5 ideal victims focus on the sexual exploitation  61 ‘hierarchy of victimhood’  56 need to factor multifarious activities  68–72 underlying concept  55 kinds of victimhood  144 need for new focus on individual protection  91–4

proper scope of the criminal law  125–6 recognition of victimhood legal recognition  58–60 social recognition  56–8 society produces perpetrators as well as victims  144–6 statistics and data household surveys  45–7 victim assistance schemes as sources of data  42 Swedish approach  137–8 Voluntariness see Autonomy; Consent Vulnerability abuse of a position of vulnerability (APOV) concluding remarks  213–15 free-floating evil  209–10 importance  194 meaning of the term  201 necessary conditions  201 problems of consent  204–9 special place in the realm of ‘means’  199–200 two distinct concepts  200–1 definition of human trafficking  119–20 focus on victims of trafficking  89–91 human trafficking and smuggling distinguished  86–7, 94–5 labour exploitation  178–9 Modern Slavery Act 2015  182 need for new focus on individual protection  91–4 paradoxes in migration setting  87–9 particular problems of EU approach  79 White slavery campaigns of National Vigilance Association (NVA)  23–4 criminalisation  22–3 first use of term  21 focus in the law and enforcement on ‘trafficking’  24 main substantive consideration in the law  173–5 procuring underage girls  22 regulation of prostitution and the suppression of vice  22 trigger for moral panic  2 Wrongfulness see Morality