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Human Trafficking under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and Its Implementation in Different Jurisdictions

Birleşmiş Milletler Tarafından Düzenlenen İnsan Ticaretinin, Özellikle Kadın ve Çocuk Ticaretinin Önlenmesine, Durdurulmasına ve Cezalandırılmasına İlişkin Protokol Işığında İnsan Ticareti Suçu ve Söz Konusu Protokolün Farklı Ülkelerde Uygulanması

Maya AVCI

Human Trafficking is a crime that might affect across national borders. It is very common among traffickers since it is one of the most profitable crime in the world. Indeed, according to the International Labor Organization, there were 40.3 million human trafficking victims in the world in only one year, 2016. To protect mostly women and children victims, the United Nations created Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. State parties are required to enact domestic legislation in accordance with the protocol. The protocol is important to provide common understanding among states since having similar implementation is important to have a universal protection. Therefore, domestic regulations and cases from six countries from both Civil Law and Common Law systems are discussed in this paper.

Human Trafficking, Anti Trafficking Protocol, Cooperation, Civil Law Jurisdiction, Common Law Jurisdiction, Cases Related to Human Trafficking Offense.

İnsan kaçakçılığı günümüzde bir çok ülkeyi ilgilendiren bir suçtur. Uluslararası Çalışma Örgütü’nün yayınladığı verilere göre 2016 yılında toplam 40.3 milyon kişi insan kaçakçılığı suçunun mağduru olmuştur. Bu suçun bir parçası olan örgütlerin kazandığı paraların çok yüksek olması bu suçun yayılmasında büyük etkendir. Çoğunluğunu kadın ve çocukların oluşturduğu bu mağdurları korumak amacıyla Birleşmiş Milletler tarafından İnsan Ticareti Sınıraşan Örgütlü Suçlara Karşı Birleşmiş Milletler Sözleşmesine Ek olarak İnsan Ticaretinin, Özellikle Kadın ve Çocuk Ticaretinin Önlenmesine, Durdurulmasına ve Cezalandırılmasına İlişkin Protokol imzalanmıştır. Taraf ülkeler bu protokolü imzalayarak, iç hukuklarında gerekli yasal önlemleri alacaklarını taahhüt ederler. Protokol dünya çapında insan kaçakçılığı ile ortak mücadeleyi gerektirdiğinden, taraf devletlerin protokolü benzer şekilde yorumlaması önemlidir. Bu nedenle, bu çalışmada Kara Avrupası ve Anglo-Sakson hukuk sistemlerinin parçası olan altı farklı ülkenin insan kaçakçılığına ilişkin hukuki düzenlemeleri ile birlikte yargı kararları ele alınacaktır.

İnsan Kaçakçılığı, İnsan Kaçakçılığı’na Karşı Protokol, Devletler Arası İşbirliği, Kara Avrupası ve Anglo-Sakson Hukuk Sistemlerine Sahip Ülkelere ait Yargı Kararları.

I. Introduction

Human trafficking is generally, although not exclusively, a transnational crime making it very difficult to fight and prevent. It happens in every country and almost every day. Monitoring traffickers and victims is nearly impossible without an international instrument, or some form of international cooperation. Thus, the United Nations created a primary instrument which defines human trafficking and establishes rules for prevention and prosecution. This document, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, which is one of three protocols to the Convention against Transnational Organized Crime (CTOC), along with another protocol focused on smuggling migrants, is the most important human trafficking regulations for states.

The CTOC was adopted by the United Nations on 15 November 2000 and entered into force 29 September 2003.1 It was followed by three supplemental protocols known as the Palermo Protocols: the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Anti-Trafficking Protocol), Especially Women and Children;2 the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. As should be clear only the first two of these three protocols relate to human trafficking. Also, to be a party to any of these protocols, a state must first be a party to the COTC.

One of the most important aspects of this convention is its focus on international cooperation. The cross-border nature of most instances of human trafficking makes such cooperation essential. Article 1 of the CTOC clarifies this purpose. It states, “The purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively.”3 To comply with this purpose, states are under an obligation to develop mechanisms for cooperation between law enforcement professionals across national boundaries, including training and mutual legal assistance.4

Legal assistance in judicial proceedings, prosecutions and investigations is indeed key in order to hold perpetrators liable. With internet and technology developments, it is increasingly difficult to track perpetrators. Smartphones, laptops, and all other electronic devices are used for human trafficking purposes, just as they are for any other commercial enterprise, but it is very easy to shield user identities and evade authorities. Also, through the use of new technologies including bitcoin, electronic payments can be untraceable.5 Therefore, the convention provides wide-ranging measures of legal assistance which may include providing information, business or financial records, and evidentiary items.

The cooperation requirement is also applicable to the Anti-Trafficking Protocol. Since different states may be involved in human trafficking, it is very important to provide tools for legal cooperation in criminal cases among countries. For example, if a perpetrator who is a dual national of France and Albania transported deceived Iraqi women from Syria to Turkey for the purpose of exploitation, French, Albanian, Syrian, Iraqi and Turkish authorities might need to work together to identify the perpetrator and victim.

However, the implementation of this convention requires each state party to take necessary measures in accordance with its domestic laws. Therefore, it is important to remember that each country might have its own human trafficking laws which might create inconsistent rules and decisions. For instance, the Iraqi anti-trafficking law requires to show some kinds of force, coercion or fraud to constitute child sex trafficking offense.6 However, this requirement is inconsistent with the definition of the Article 3 of Anti-Trafficking Protocol which will mention below. It is important to have a common understanding of this convention and its protocols in order to have an effective combating strategy. Otherwise, these kinds of inconsistencies might let traffickers go unpunished in some jurisdictions.

Therefore, this research seeks to understand two things. The first one is that how some of these state parties from both civil law and common law systems adopted the Anti-Trafficking Protocol into their national human trafficking laws. Second, how the courts in these countries implemented these rules.

In the following paper, Part II will address what constitutes human trafficking under Article 3 of the Anti-Trafficking Protocol since this definition should be used by state parties. Part III will examine the cooperation requirement under the Anti-Trafficking Protocol. It is important to show how different interpretations might be problematic when cooperation is needed. Part IV will analyze cases at the domestic level that have focused on human trafficking. Cases from the United States, United Kingdom, Canada, Germany, Turkey and France selected from the Human Trafficking Knowledge Portal created by the UNODC. These cases will narrow down to recruitment activities since it is one of the biggest problem in the field of human trafficking. Deciding who is a recruiter during the judicial proceedings is really important to find real victims to be able to provide protection under the Protocol. Lastly, conclusion will discuss there is no single approach to cope with human trafficking cases. Therefore, court decisions are inconsistent about the definition of human trafficking which is important to successfully prosecute human trafficking perpetrators. There will be also some suggestions to state parties and the United Nations to provide better justice for human trafficking victims.

II. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children - The Anti-Trafficking Protocol

The Anti-Trafficking Protocol was adopted by the United Nations General Assembly in 2000 but it entered into force in 2003. As of August 2020, 178 countries have officially ratified the agreement, passing legislation in compliance with the protocol requirements.7 Article 2 clarifies that this convention is established to protect especially women and children from human trafficking. According to the Article:

The purposes of this Protocol are:

(a) To prevent and combat trafficking in persons, paying particular attention to women and children;

(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and

(c) To promote cooperation among States Parties in order to meet those objectives.8