CHAPTER 2: LITERATURE REVIEW
2.2 International discourses of human trafficking
2.2.4 Human trafficking as a Transnational Organized Crime (TOC)…
Page | 37 globalisation and new communication and transportation technologies.195 The global criminal economy of trafficking has arguably expanded its realm to an extraordinary diversity of operations, making it an increasingly diversified and interconnected, global industry.
Furthermore, such perceptions have been influential among policy-makers.
Page | 38 a. It is committed in more than one State
b. It is committed in one State but a substantial part of its planning, direction or control takes place in another State
c. It is committed in one State but involves an organized criminal group engaged in criminal activities in more than one State
d. It is committed in one State but has substantial effects in another State.201
Against this backdrop, human trafficking is categorised and internationally defined as a transnational organised crime by the Parlemo Protocol to encompass:
… the recruitment, transportation, transfer, harbouring or receipt of persons by means of threat or use of force or other forms of coercion, of abduction, fraud, of deception, of the abuse of power or of a position of vulnerability or 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 prostitution of others or forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs;202
According to this definition, human trafficking has three principal elements that need to be present in order for a person to be identified as a victim of trafficking: (i) the person must be recruited, moved, transferred, harboured or received; (ii) there must have been some form of coercion, deception or abuse of power or vulnerability involved; (iii) the actions are for the purposes of exploitation (see table 2.1). Although this definition now exists as the legal definition of human trafficking, much controversy surrounds the formulation of this legislation as well as criticism for being overly broad.203 This has been attributed to the conceptual issues surrounding the definition of human trafficking, and how it has been conceptualised in the Trafficking Protocol.204
201 United Nations Convention Against Transnational Organized Crime of 2000 (225 UNTS 209).
202 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000, supplementing the United Nations Convention Against Transnational Organized Crime (General Assembly resolution 55/25)
203 Emser, M (2013), op. cit.
204 Emser, M (2013), op. cit.
Page | 39 On the other hand, the trafficking as transnational organised crime approach is not without criticism. For instance, Taylor and Jamieson questioned the „alarmist interpretation‟ of transnational threats posed by organised crime groups while others have questioned the very existence of transnational organised crime and the dominance of transnational organised crime groups in the trade in humans.205
Table 2.1
ELEMENTS OF HUMAN TRAFFICKING
Source: UNODC206
Rather, such scholars underlined the role of legitimate and semi-legitimate groups such as private businesses, job recruitment agencies, overseas marriage consultant agencies and employees of international organisations like members of national armed forces or
205 Lee, M (2011), op. cit.
206 UNODC (2008) Tool Kit to Combat Trafficking in Persons: Global Programme Against Trafficking in Human Beings, UNODC.
Page | 40 international peacekeeping missions in the human trafficking chain.207 Furthermore, Article 4 of Trafficking Protocol demonstrates that it is only applicable to „offences that are transnational in nature‟, and must also involve „an organised criminal group‟.208 This neglects and leaves room for different interpretations and applications of the notion of „transnational‟
and „an organised criminal group‟ to individual states‟ domestic situations in the formulation of domestic legislation, hence, creating gaps in the application and enforcement of trafficked individuals.209 Moreover, such assumptions become problematic when defining a trafficker, whether it should always necessarily be an organised criminal group. This then begs the question of what may be defined as an organised criminal group, a notion that is also contested. Such overgeneralisations have a risk of creating faulty assumptions of labelling one particular group as traffickers. Moreover, like human trafficking, defining organised crime has proven difficult as it is a highly contested notion.
In addition, Emser notes that associating the Trafficking Protocol to that of the Convention on TOC creates an underlying assumption, that human trafficking is but one of the many crimes ascribed to organised crime, and limited to organised criminal groups and this shapes perceptions as well as initiatives or policies.210 Furthermore, although the diverse profiles of traffickers, organised crime groups and networks are acknowledged, in practice the link to transnational organised crime, inherited from the Trafficking Protocol, international agreements and discussions around globalisation, has affected the scope of investigations by law enforcement who typically look for the international link, as well as a structure to the criminal enterprise.211 This suggests that different forms of trafficking groups or networks, and traffickers, may be disregarded at present where they do not fit the standardised international profile.
Moreover, Emser notes that such assumptions are constraining especially to law enforcement to only deal with human trafficking cases that are of an identifiable criminal structure, and have transnational links.212 This international discourse has become widely accepted and well-established, however, this has resulted in many instances, in domestic discourses accepting the assumptions of the dominant international discourse with little research as to
207 Lee, M (2011), op. cit.
208 Emser, M (2013), op. cit.
209 Emser, M (2013), op. cit.
210 Emser, M (2013), op. cit.
211 Lee, M (2011), op. cit.
212 Lee, M (2011), op. cit.
Page | 41 the situation on the ground or fully appreciating regional and historical peculiarities that might affect the nature of the trafficking processes.
Significantly, the problem of transnational organised crime is perceived as a threat to state and domestic security, endangering state sovereignty and the ability of the state to protect its citizen from harm, is a dominant and undisputed theme in the international discourse.213 The argument is that Transnational organised crime, facilitated by globalisation and illicit migration, is seen to drive the process of human trafficking, corrupting officials and threatening the sanctity of the state.214 Therefore, from this perspective, the abuse of migrants becomes fully the fault of traffickers who must be stopped, not the by-product of exploitative employment practices, restrictive immigration policies, and vast economic disparities between rich and poor nations.215 The logic of this most commonly adhered and accepted to understanding of human trafficking and approach to it is that once organised crime groups and networks are disrupted and destroyed, or the costs for traffickers becomes too high, there will no longer be a market for human trafficking, and the exploitative practices that accompany it.216
Importantly, the human trafficking discourse overlaps and to some degree parallels that of organised crime. Human trafficking has often been associated with the notion of transnational organised crime, “and is defined as a criminal act which violates the rule of law”. TOC is portrayed as one of the most important mechanisms for unlawful redistribution of „national wealth, unduly influencing markets, political power and societal relations‟.
Therefore, the principal threat posed by trafficking in persons is why the trafficking issue is increasingly recognized as one of global security. Hence, it becomes apparent that the issue of human trafficking and organised crime have been galvanised together to bolster the role of state in a complex and uncertain world.