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8 Council of Europe Convention on Action against Trafficking in Human Beings [2005] CETS No. 197, Article 26.
9 Council of Europe, Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings (16 May 2005), Article 26: Non-punishment of victims, paras. 272–274.
10 Council of Europe, 4th General Report on GRETA’s Activities (March 2015), p. 52.
11 European Union 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 [5 April 2011], OJ L 101/2, Article 8.
12 United Nations, Report on the Meeting of the Working Group on Trafficking in Persons Held in Vienna From 27 to 29 January 2010 (CTOC/COP/WG.4/2010/6, 17 February 2010), p. 8, para. 51.
13 ILO Protocol of 2014 to the Forced Labour Convention, 1930 [Geneva, 103rd ILC session 11 Jun 2014], P029, Article 4.
14 ILO, Report IV (1): Strengthening Action to End Forced Labour (ILC.103/IV/1 International Labour Conference, 103rd Session, 2014), pp. 40–41.
15 The Explanatory Report to the Council of Europe Convention establishes that:
the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article 4, when such involvement results from compulsion.
See Council of Europe, Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings (16 May 2005), Article 26: Non-punishment of victims, paras. 272–274.
16 OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013), para. 12.
17 OSCE, Trafficking in Human Beings Amounting to Torture and Other Forms of Ill-Treatment (2013), p. 64.
18 UNODC, Issue Paper: Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons (2013).
19 Council of Europe, Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings (16 May 2005), Article 26: Non-punishment of victims, paras. 272–274.
20 OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013), paras. 75–77, and p. 33.
21 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (16 March 2001), A/RES/54/263.
22 UN Convention on the Rights of the Child 1989, Article 1. 1577 UNTS 3.
23 UNICEF Innocenti Research Centre, Child Trafficking in the Nordic Countries: Rethinking Strategies and National Responses. Technical Report (2012), www.unicef-irc.org/publications/643, p. 99. See, also, UN Economic and Social Council, UN Economic and Social Council 2005/20: Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (22 July 2005), E/RES/2005/20 –para. 9(a) of which defines child victims and witnesses as: “children and adolescents, under the age of 18, who are victims of crime or witnesses to crime regardless of their role in the offence or in the prosecution of the alleged offender or groups of offenders”.
24 Council of Europe, 4th General Report on GRETA’s Activities (March 2015), pp. 52–53.
25 Ibid., p. 52.
26 OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013), para. 29.
27 The High Court, Judicial Review [Record No. 2013/795 JR], P. v. The Chief Superintendent of the Garda National Immigration Bureau, The Director of Public Prosecutions, Ireland and The Attorney General, Judgment of MS Justice Iseult O’Malley, 15 April 2015 –see, especially, paras. 179 & 194–207. See, also, Migrant Rights Centre Ireland, Suspected Victims of Trafficking Acquitted and Freed After a Year in Jail in Ireland (Media Release, 11 March 2015).
28 R. v. L. and Other Appeals [2013] EWCA Crim 991; [2014] 1 All ER 113, para. 33.
29 Ibid., para. 13.
30 See, for example, case law on non-punishment discussed in the following reports: Dutch National Rapporteur on Trafficking in Human Beings, Trafficking in Human Beings: Seventh Report of the Dutch National Rapporteur (2010) (see, especially, the Mehak Case, The Hague District Court, 14 December 2007, LJN: BC1195); and Centre for Equal Opportunities and Opposition to Racism, Trafficking and Smuggling in Human Beings: Building Trust – Annual Report 2012 of the Independent Rapporteur on Human Trafficking (Belgium, 2013).
31 Ibid.; and see, also, OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013).
32 Council of Europe, Explanatory Report on the Council of Europe Convention on Action Against Trafficking in Human Beings (16 May 2005), Article 26: Non-punishment of victims, para. 274; OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013), paras. 13–14.
33 Anti-Slavery International, Trafficking for Forced Criminal Activities and Begging in Europe: Exploratory Study and Good Practice Examples (2014); Council of Baltic Sea States, Children Trafficked for Exploitation in Begging and Criminality: A Challenge for Law Enforcement and Child Protection (2013); The Children’s Society and The Refugee Council, Still at Risk: A Review of Support for Trafficked Children (2013).
34 Council of Baltic Sea States, Children Trafficked for Exploitation in Begging and Criminality: A Challenge for Law Enforcement and Child Protection (2013).
35 Council of Baltic Sea States, Children Trafficked for Exploitation in Begging and Criminality: A Challenge for Law Enforcement and Child Protection (2013), p. 19.
36 UN OHCHR, Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010), Principle 1.
37 Rantsev v. Cyprus and Russia, App No. 25965/04 (ECtHR, 7 January 2010); Piotrowicz, R., “States’ Obligations Under Human Rights Law Towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations” (2012) 24 International Journal of Refugee Law 181–201; UN OHCHR, Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010); Gallagher, A.T. and Karlebach, N., Prosecution of Trafficking in Persons Cases: Integrating a Human Rights-based Approach in the Administration of Criminal Justice, Background paper for the Expert Meeting of the UN Special Rapporteur on trafficking in persons, especially women and children, Ms. Joy Ngozi Ezeilo (July, 2011).
38 Rantsev v. Cyprus and Russia, App No. 25965/04 (ECtHR, 7 January 2010), para. 284.
39 OSCE, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013), para. 27.
40 Council of Europe Convention on Action against Trafficking in Human Beings (2005), CETS No. 197, Article 10; European Union 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 [5 April 2011], OJ L 101/2, Articles 10, 12, 13; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [14.11.2012], OJ L 315/57, Article 11.
41 Rantsev v. Cyprus and Russia, App No. 25965/04 (ECtHR, 7 January 2010), para. 286.
42 Council of Europe, 4th General Report on GRETA’s Activities (March 2015), p. 40.
43 Gallagher, A.T. and Karlebach, N., Prosecution of Trafficking in Persons Cases: Integrating a Human Rights-based Approach in the Administration of Criminal Justice, Background paper for the Expert Meeting of the UN Special Rapporteur on Trafficking in Pe
rsons, Especially Women and Children, Ms. Joy Ngozi Ezeilo (July, 2011).
44 See R. v. L. and Other Appeals [2013] EWCA Crim 991; [2014] 1 All ER 113, para. 16:
the court reviews the decision to prosecute through the exercise of the jurisdiction to stay. The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party.
45 Victim support services should take into account the victim’s “personal situation and immediate needs, age, gender, possible disability and maturity … while fully respecting their physical, mental and moral integrity” –Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [14.11.2012], OJ L 315/57, Recital 9.
46 See relevant standards on non-conditionality of victims’ assistance upon victim co-operation with the authorities: Council of Europe Convention on Action against Trafficking in Human Beings (2005), CETS No. 197, Article 12.6; European Union 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 [5 April 2011], OJ L 101/2, Recital 18 & Article 11. On the benefits of early legal aid, see: Immigrant Council of Ireland, Comparative Report: Upholding Rights! Early Legal Interventions for Victims of Trafficking (2015).
47 Immigrant Council of Ireland, Comparative Report: Upholding Rights! Early Legal Interventions for Victims of Trafficking (2015).
15
Abuse of a position of vulnerability within the definition of trafficking persons
Anne T. Gallagher and Marika McAdam
Introduction
In Chapter 3, ambiguity around the scope and substantive content of the definition of trafficking in persons was identified as a significant challenge to the effective implementation of the international legal framework regulating this issue. In 2010, States Parties to the Trafficking in Persons Protocol requested the United Nations Office on Drugs and Crime (UNODC) to examine certain concepts within the definition of trafficking that were proving ‘problematic’ at the national level.1 The present chapter focuses on one of three concepts examined by the authors for UNODC in response to that request: abuse of a position of vulnerability (APOV) as a means by which the ‘act’ element of the definition of trafficking is committed.2
The study included detailed consideration of the drafting history of the Protocol; a review of relevant literature, including analysis of legal frameworks and associated practice; and in-depth interviews with practitioners in twelve countries representing different regions and legal traditions. A draft report bringing together the background research and country studies was then prepared and discussed by a group of expert practitioners before being finalised and published.3 While this chapter reflects and builds on that work, its analysis and conclusions offer a deeper analysis that draws directly on the authors’ collective experience of working with legislators and criminal justice officials in more than fifty countries as they grapple with understanding and applying the vague and perennially contested definition of trafficking.
Part 1: abuse of a position of vulnerability in international law and practice
In the 2000 Trafficking in Persons Protocol, abuse of a position of vulnerability is cited in a list of ‘means’ by which persons can be subject to a range of actions such as recruitment, transportation, and harbouring, for purposes of exploitation. The concept has since been included in a number of other instruments and been analysed in interpretative texts and guides. This Part summarises those developments and draws some preliminary conclusions.
Trafficking and vulnerability – two separate but related concepts
Vulnerability is central to how trafficking is understood, and to the discourse that has developed around the phenomenon. Typically, it is used to refer to inherent, environmental, or contextual factors that increase the susceptibility of an individual or group to being trafficked: factors such as poverty, inequality, discrimination, and gender-based violence4 –all of which contribute to creating conditions that limit individual choice and, it is understood, make it easier for traffickers and exploiters to operate. Specific factors that are commonly cited as relevant to individual vulnerability to trafficking (and are occasionally extrapolated as potential indicators of trafficking)5 include gender, age, membership of a minority group, and lack of legal status. Factors shaping vulnerability to trafficking differently and disproportionately impact groups that already lack power and status in society, including women, children, migrants, refugees, and internally displaced persons. Addressing trafficking-related vulnerabilities to reduce susceptibility to trafficking is widely acknowledged as a key preventative approach; accordingly, international law requires States to take action to prevent trafficking through addressing vulnerability.6
However, the subject of this chapter is not vulnerability as a form of susceptibility to trafficking, but rather the distinct yet related concept of abuse of vulnerability as a means by which trafficking is perpetrated. The distinction and the overlap are both critical. The mere fact of a person’s vulnerability to trafficking (because of poverty, gender, etc.) provides no evidence as to whether the requisite means element of the trafficking definition has been established. However, our understanding of the factors that increase susceptibility to trafficking provides important insight into the kinds of vulnerability that can be abused in order to traffic a person. For example, the irregularity of an individual’s legal status vis-à-vis the country of destination appears to be a form of vulnerability that is particularly amenable to abuse aimed at placing or maintaining an individual in a situation of exploitation. The question of whether less tangible factors commonly identified as increasing vulnerability to trafficking (such as poverty and inequality) can be similarly transposed is considerably more complicated.
The concept of ‘abuse of a position of vulnerability’ in the Trafficking Protocol and other instruments
Article 3 of the Trafficking in Persons Protocol defines trafficking as comprising three separate elements: an action; a means by which that action occurs or is made possible; and a purpose to the action, which is specified as exploitation. The first component of the definition, the ‘action’ element, is one part (and in the case of trafficking in children, the only part) of the definition that will constitute the actus reus of trafficking. This element can be fulfilled by a variety of activities including, but not limited to, the undefined practices of recruitment, transportation, transfer, harbouring, or receipt of persons. The final element of the definition, “for the purpose of exploitation”, introduces a mens rea requirement into the definition. Trafficking occurs if the implicated individual or entity intended that the action (which, in the case of trafficking in adults, must have occurred or been made possible through one of the stipulated means) would lead to exploitation.7 Trafficking is thereby a crime of specific or special intent (dolus specialis).8
The second part of the actus reus of trafficking, the ‘means’ element (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person), only needs to be established in trafficking in adults. This aspect of the definition confirms the position reflected in earlier treaties on the subject – that individuals can be placed in a situation of exploitation through indirect methods, such as deception and fraud, as well as by more direct methods, such as physical force. Beyond a clarification of abuse of a position of vulnerability, discussed below, none of the stipulated ‘means’ is defined, and there appears to be significant overlap between some of them (for
example, fraud and deception).
The concept of abuse of a position of vulnerability was, at the time of its adoption, unique to the Trafficking in Persons Protocol. The travaux préparatoires to the Protocol include an interpretative note to the effect that abuse of a position of vulnerability “is understood as referring to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved”.9 No further guidance beyond this rather circular explanation is provided. Most importantly, it is unclear what “real and acceptable alternative” actually means or how it is to be applied in practice. One of the authors of the present chapter participated in the Protocol drafting process and several members of key delegations who were also present were interviewed during the preparation of the UNODC Study. Collective recollections on the point of abuse of a position of vulnerability are inconclusive beyond confirming that the concept, which was introduced at the eleventh hour, reflected a general desire to ensure that the definition was capable of encompassing the myriad, subtle means of coercion by which people are exploited. Critically, introduction of this particular ‘means’ was also seen as a circuit-breaker in the heated debate around trafficking and prostitution: abuse of a position of vulnerability could potentially accommodate an expansion of the concept of trafficking – while being sufficiently vague to avoid locking States into a fixed position on the contentious issue of their domestic response to prostitution.
Inclusion of the concept in subsequent legal instruments has not led to substantive clarification of its scope or substantive content. The 2005 Council of Europe Convention against Trafficking in Human Beings (the European Trafficking Convention) reproduces the definition of trafficking set out in the Trafficking in Persons Protocol, including the ‘means’ element. Commentary to that instrument provides an explanation of the term abuse of a position of vulnerability, stating that: