4 For a thorough analysis of the root causes of human trafficking, see Louise Shelley, Human Trafficking: A Global Perspective (Cambridge University Press. Members of the international community have developed and begun to implement a range of strategies aimed at tackling human trafficking The first part of this paper analyzes the constituent elements of the definition of human trafficking as set out in international and regional legal instruments (I).
As explained in the Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Legislative Guide"),. 15 But note Article 1(3) of the 2002 SAARC Convention on Prevention and Suppression of Trafficking in Women and Children for Prostitution. Readers can refer to the instructive guidance of the Council of Europe and the United Nations on trafficking in organs, tissues and cells and trafficking in human beings for the purpose of organ harvesting.
40 Council of Europe and the United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Removal of Organs (Council of Europe/UN Organ Trafficking). It is important to emphasize that "the fulfillment of the dolus specialis element does not require that the objective be actually achieved".52. Instead, Article 3(a) of the Trafficking in Persons Protocol contains a non-exhaustive list – hence the use of the phrase “at least” – of forms of exploitation.
Some of the components of the target element are not defined in the Trafficking in Persons Protocol or in the Travaux Préparatoires.
CHALLENGES AND IMPORTANCE OF PROPER IDENTIFICATION OF TRAFFICKED PERSONS
Similar to Slavery.66 The Model Law states that this notion 'shall include debt slavery, slavery, servile forms of marriage and the exploitation of children and adolescents', all of which are practices specifically prohibited in the 1956 Convention.67 Finally, UNODC defines 'easement'. as 'working conditions and/or the obligation to work or provide services from which the person concerned cannot escape and which he or she cannot change'68, a definition based on an interpretation of Universal Declaration of Human Rights69 and International. Covenant on Civil and Political Rights.70.
THE CHALLENGES OF IDENTIFICATION
Another challenge for authorities and bodies responsible for identifying and protecting victims of human trafficking is to properly distinguish the victim of trafficking from criminals or irregular or smuggled migrants. Therefore, in the following paragraphs, the focus is only on the distinction between victims of human trafficking and smuggled migrants. The three constituent elements of migrant smuggling are (1) procuring the illegal entry of another person,75 (2) into another country, (3) for financial or material purposes76.77 In theory, it is possible to emphasize in at least three main differences between human trafficking and migrant smuggling.
In other words, the smuggler has no intention of exploiting the smuggled migrant upon arrival. In contrast, and as explained above, the main purpose of human trafficking is the continued exploitation of the victim by the offender. This is how illegal profit is generated for traffickers, whose goal is that "relationships with exploited victims are continuous and extend beyond".
74 Protocol against Smuggling of Migrants by Land, Sea and Air Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November UNTS 480 (entered into force 28 January 2004) art 3(a) ( 'Smuggling of Migrants Protocol)'). 75 Article 3(b) of the Protocol on Smuggling of Migrants provides that "[i]llegal entry" shall mean the crossing of borders without meeting the necessary requirements for legal entry into the receiving State. 76 This implies that smuggling activities carried out for non-profit purposes do not fall within the scope of the Migrant Smuggling Protocol.
United Nations Office on Drugs and Crime, Toolkit to Combat Smuggling of Migrants, Tool 1: Understanding the smuggling of migrants (UNODC Toolkit to Combat Smuggling of Migrants). As stated above, differences between migrant smuggling and human trafficking exist in theory and can be pointed out. One of them is that a trafficked person may begin his journey as a smuggled person who is willing to travel illegally into a foreign country, before being forced into exploitation for e.g. to pay for the transport. .
Because traffickers, whose initial intention is to exploit trafficked persons, ask the victims to pay a fee, which is actually nothing more than a fraudulent way to make more money and an expression of fraud on the victims. Also, in some situations, smuggling may be the perpetrator's planned intention at first, until a 'too good to miss' opportunity presents itself during the journey and turns the smuggler and the whole situation into people smugglers and people smuggling. THE IMPORTANCE OF CORRECT IDENTIFICATION The above-mentioned challenges lead to the fact that in many.
THE IMPORTANCE OF PROPER IDENTIFICATION The above-mentioned challenges lead to the fact that in many
STATES’ OBLIGATIONS SURROUNDING THE IDENTIFICATION OF VICTIMS OF HUMAN
Article 10(1)(a) requires law enforcement, immigration or other relevant authorities of States Parties to cooperate by exchanging information on a range of relevant matters, including the identification of potential victims in transit.125 Article 10(2) requires States Parties to provide or strengthen training for a range of agencies including law enforcement and immigration.126 According to this provision, the training must focus on methods used to prevent human trafficking, prosecute traffickers and protect the rights of the victims, and it must cooperation with elements of civil society and others. 131 Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, Note by the Office of the United Nations High Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees, the United Nations Children's Fund and the International Organization for Migration on the Draft Protocols on Migrant Smuggling and Trafficking in Persons, 8th Session, UN Doc A/AC February a) Allow courts or tribunals convicting traffickers or dealing with trafficking in civil or other litigation to include any victims identified during the proceedings, whether they actually participate in those proceedings or not;. With regard to border detection, Article 7(1) of the European Convention on Trafficking in Human Beings, modeled on Article 11(1) of the Trafficking in Human Beings Protocol, states that 'Parties shall, as far as possible, strengthen such border control measures as may be necessary to prevent and traffic in persons to trace'.133 Moreover, drafters sought to strengthen cooperation between border control services by establishing and maintaining new types of operational action (eg official machinery for direct exchange of information, cross-border surveillance and pursuit).134 .
Such cooperation can be illustrated by the work of the mobile research brigade at Charles de Gaulle airport (France), which consists of following potential victims and traffickers in close cooperation with the mobile immigration brigade, which provides records of passengers and risk profiles. See European Union Agency for Fundamental Rights, Fundamental rights at airports: border control at five international airports in the European Union (Publications Office of the European Union Fundamental rights at airports). Of the FRA border guards interviewed, 41% said that they generally do not speak to all third-country passengers during first-line checks.
139Relevant officials include law enforcement officials, immigration and social services, embassy and consulate staff, and border guards.140 However, in practice, observers from different parts of the world still note the lack of continuous and specialized training, which limits the capacity to identify victims quickly. and accurately identify among frontline officers.141 With regard to European law in this area, Article 10(1) of the European Human Trafficking Convention states that '[e]. In addition, Article 10(2) of the European Trafficking Convention states that '[each Party] shall take such legislative or other measures as may be necessary to identify victims, if necessary'.148 The ASEAN Trafficking Convention also requires the adoption of national guidelines and procedures for the correct identification of victims.149 Guidelines150, procedures and indicators151 are all written aids. 150 See, for example, the gender-sensitive guidelines adopted in February 2015 by the ASEAN Commission for the Promotion and Protection of the Rights of Women and Children, for addressing female victims of human trafficking.
This identification process would be a prelude to an in-depth investigation, which would later be carried out through referral mechanisms and whose aim would be to establish the actual status of the intercepted persons.154. In some parts of the world, victims of human trafficking can be temporarily identified as such for immediate protection and support. For a broader definition of the mechanism, see OSCE Office for Democratic Institutions and Human Rights, National Referral Mechanisms, Joint Efforts to Protect the Rights of Trafficking Victims: A Practical Manual (OSCE/ODIHR.
The presumption of victim status means that once competent authorities have 'reasonable' grounds to believe that someone is a victim of human trafficking, they do not transfer him or her from the territory of the receiving country to the country of origin or to a third country, and they will provide the person with assistance and support, regardless of his or her willingness to act as a witness.160 The presumption of victim status – which requires a relatively low standard of proof – is of crucial importance. Therefore, application of the reasonable grounds principle prevents these people from being removed from the receiving country and prevented from assistance and support before they can be successfully identified as victims.161 IV. Despite significant efforts by states, international organizations and members of civil society, human trafficking remains an invisible crime.
Observers emphasize that only a very small portion of the total number of people trafficked is identified. Possibilities for improving the identification of victims include the development or reinforcement of constant and specialized training and the implementation of capacity building initiative to address the lack of awareness of frontline officials164, to ensure that guidance, procedures and indicators receive and understood, updated and implemented to ensure rapid certainty. assessment and rapid response of frontline officers165, development or strengthening of functional national referral mechanisms166,.
