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 ii 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 vi Contents Acknowledgements����������������������������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������������������������� ix Introduction��������������������������������������������������������������������������������������������������������� Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt Trafficking, the Anti-Slavery Project and the Making of the Modern Criminal Law����������������������������������������������������������������������������������������������������� 13 Lindsay Farmer Measuring Human Trafficking���������������������������������������������������������������������������� 37 Hans-Jörg Albrecht Victims of Human Trafficking: Considerations from a Crime Prevention Perspective����������������������������������������������������������������������������������������� 53 Rita Haverkamp Victims of Trafficking in the Migration Discourse: A Conceptualisation of Particular Vulnerability����������������������������������������������������������������������������������� 77 Elina Pirjatanniemi Understanding Trafficking in Human Beings as Mixed Migration: The European Area of Freedom, Security and Justice and its Global Width���������� 99 Ester Herlin-Karnell Human Trafficking: Human Rights Activism and its Consequences for Criminal Law�����������������������������������������������������������������������������������������������117 Tatjana Hörnle What Does the Trafficker Do Wrong and Towards What or Whom?���������������������137 Claes Lernestedt 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 Viganị Index�����������������������������������������������������������������������������������������������������������������������263 List of Contributors Hans-Jưrg 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 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 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 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 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: 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 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 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 ICCPR and Art 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 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 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 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 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 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 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 ICCPR and Art 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 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 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 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 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 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 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 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 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 Wrongfulness see Morality ... 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, .. .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... 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