How the lack of an internationally coherent definition of trafficking-in-persons obscures the act, and abets perpetrators

Human trafficking continues to affect human lives around the world. It turns out that perpetrators find loopholes in the inconsistent definition of the act across countries to ply their trade. Different countries rely on their penal codes to define what constitutes a crime and what does not. But traffickers find havens in the fact that across borders, definitions diverge. Who a trafficker is in a particular country may differ based on criminal statutes. But the trade booms across borders. In this series looking at trafficking-in-persons, student bloggers Amber Malone and Nicolas Carpenter take on the issue and suggest ways how countries can coordinate their definition of the crime to act in a coordinated way against perpetrators, save victims, restore their human rights and dignity and stamp out the act.

Human trafficking is among the most pervasive crimes committed in the world. Human trafficking is present in every country and every region of the world. There seem to be no exceptions in terms cultures, economic prosperity, or political system. Wherever there is economic activity there is human trafficking. No one would dispute that human trafficking threatens lives, livelihoods and human dignity. Indeed, traffickers harm their victims and threaten the rule of law in the countries they operate. The European Union places it amongst other challenges to human rights and democracy as it robs victims of the right to self-determination, bodily autonomy, and the ability to provide for themselves. Undoubtedly it harms the individual’s human rights and is not conducive to any human society.

But what is human trafficking? The foremost obstacle in confronting human trafficking is simply creating an accurate perception and forming an agreed-upon definition among ordinary citizens, NGOs, and Governments. Without a coherent understanding of what human trafficking is perpetrators cannot be prosecuted, and victims will remain invisible in the discussion on rights enjoyment and protections. Without a better understanding of trafficking, identifying victims and giving them the help and support they need to escape exploitation become impossible.

Standing in the way of understanding human trafficking is the fact that organizations tasked with combating it define trafficking differently. The United Nations for example, defines it as, the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them.” While the U.S. Department of Homeland Security defines human trafficking as: “the use of force, fraud, or coercion to obtain some type of labor or commercial sex act.” The difference is subtle, but important because to label an infraction a crime, such must be defined by statute. The American DHS only concerns itself with forced labor or sex work while the UN contends any use of force to exploit someone—for any reason—is human trafficking. The differences in definitions alters who is considered a perpetrator or a victim of trafficking. This is only a small sample of how differing Government and institutional arrangements define trafficking, and not how the differing definitions maybe influenced by different institutional goals. An NGO operating in the European Union to end trafficking among migrant communities will engage based on a different definition, while a law enforcement agency tasked with prosecuting perpetrators within the same location may use a different definition. The inconsistency in definition then creates a loophole which is exploited by perpetrators.

In addition, the gray area among refugees, stateless persons, and trafficked victims presents some conceptual challenges and, thus, hinders the provision of protection. In addition to refugees, stateless persons and trafficked victims are entitled to their fundamental human rights.  However, not all stateless persons or trafficked victims are refugees, and a substantial number of persons in both categories move irregularly. Stateless persons are not considered citizens of any State. Stateless persons can be refugees and, in this case, are entitled to the protections delineated in the 1951 Refugee Convention. For those who are not refugees, the 1954 Convention relating to the Status of Stateless Persons regulates the services provided for stateless persons to ensure their full enjoyment of rights. Many stateless individuals risk becoming victims of trafficking. In addition, while trafficked victims maintain nationality even when they are moved across borders, traffickers may confiscate documents proving identity, essentially rendering their victims stateless. This scenario is particularly concerning as states lacking cooperative and efficient measures are unable to verify identities for repatriation. Trafficked victims – depending on their circumstances– who have been moved across international borders also should be protected as refugees until they are returned to their countries of origin.

Adding to the confusion is the wildly inaccurate portrayal of human trafficking in popular media. Such portrayal has so many inaccuracies attached to it that few people have a firm understanding of what trafficking in persons is. Movies and television programs create images of mobsters abducting tourists and young women being kidnapped in vans. Popular images of trafficking again obscure who is a victim. The stereotype is that underage girls are the primary target of trafficking. While it is true that women are in most circumstances at greater risk than men, in specific circumstances, more men than women are targeted for trafficking.

This leads to the second misconception popular culture has created around trafficking about why victims are trafficked in the first place. The misconception being that trafficking is most often done for the purposes of sex work. This is not always the case. In the parts of the European Union, labor trafficking is far more prevalent than sex trafficking. Wrapped up in the misconception about why victims are trafficked is again the question of who is trafficked. People of all genders can be and are labor-or-sex trafficked.

A third misconception about trafficking caused by popular culture is the medium through which people are trafficked. Images of victims being abducted by armed strangers is largely inaccurate. Many people are introduced to trafficking by people they know. Individuals can be victimized by or become victims of their acquaintances, friends, and even domestic partners. Recruiters use social media and the internet to great effect when finding new preys. Another popular trope is victims being taken from one country and forced to work in another. This is in fact not only trafficking, it is also smuggling. It is possible for victims to be both trafficked and smuggled but smuggling and trafficking are two different crimes, and conflating them makes it difficult to respond to either crimes effectively. It is true that international migrant workers are at risk of being trafficked, but many are trafficked after they arrive in a new country. All these confusions and incoherence in definitions make human trafficking difficult to combat.

The evident lack of a coherent definition of trafficking-in-persons between countries, and the fact that the crime is largely perpetrated across borders, in a sense, abets perpetrators. And until countries can coordinate their actions, efforts to stamp out the practice may continue to be elusive. Low reporting numbers from victims, the inability or unwillingness of law enforcement agencies to bring trafficking charges —or worse, the criminalizing of victims, and countless other challenges stand in the way of prosecuting traffickers and bringing justice to victims. For governments, civil society organizations, and society at large, responding to human trafficking with a clear-eyed understanding of the issue will go a long way in crafting and exacting effective countermeasures to stamp it out.

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Amber Malone is a second-year Graduate Student in International Affairs at Johns Hopkins University School of Advanced International Studies (SAIS). She previously worked in Public Policy and Communications with the American Civil Liberties Union of Mississippi.

Nick Carpenter is a first year Graduate Student in International Relations at Johns Hopkins University School of Advanced International Studies (SAIS). His concentration is Strategic Studies, focusing on global security challenges and how to address them.

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Save the date! The CCSDD will restart September 1

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Ciao amici!

We hope you are staying safe and enjoying your summer! We at the CCSDD would like to wish our loyal followers a warm and restful August, and inform you all that we will resume our activities on September 1st. Until then, arrivederci!

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NATO’S Aspirations in the Constitutional Preamble of Ukraine: Distorting Historical Roots of the Constitution or Reflecting Societal Changes?

Click here to read about how states such as Ukraine formalize their desire for NATO membership within their own constitutions, according to CCSDD and Bocconi University professors Justin Frosini and Viktoriia Lapa.

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“Freedom of the Profession versus the Health Emergency: The Physical and Spiritual Protection of the Lutheran Citizen”

CCSDD researcher, Dr. Giuseppina Scala, has published a short chronicle on the Swedish government’s measures affecting the right to profess the Lutheran religion within the Kingdom of Sweden during the COVID-19 emergency. Her contribution is available on the DiReSom (Law and Religion in Multicultural Societies)
 
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The Rojava Experiment: Ideological Manifesto or New Legal Order? – Taysier Roberto Mahajnah

THE ROJAVA EXPERIMENT: IDEOLOGICAL MANIFESTO OR NEW LEGAL ORDER?

Taysier Roberto Mahajnah

Introduction

The construction of the nation-state brings conflicting and contradictory elements. Hannah Arendt underlines that if these elements are subject to the State as a coerced apparatus to the functions of the Nation,[1] the conflictual aspects then become concretely worrying when the political borders do not overlap with ethnic ones, creating fractures within the democratic order. Secessions and declarations of independence could mitigate, in the short term, these fractures. In the same way, from these instruments, could be born again a nation-state with a different ethnic minority who will be affected. The punctum dolens, therefore, is not the legal instrument used; it is the State structure that manifests itself in a fragile way towards ethnic issues, especially present in the panorama of North-African and Middle-East countries. For this reason, it becomes necessary to consider a system that is an alternative to the state configuration, in which the powers (judicial, legislative, and executive) live in the social body. From this observation arises the fundamental question: “Can democracy exist without a state?” To answer, it is necessary to reconstruct one of the most important experiments: the “Autonomous Administration of North and East Syria”, commonly known as “Rojava”, a de facto autonomous region that is building its legal order on the anti-state idea. I will try to analyze the main pillars of “Rojava” such as its Constitution and its legislative and judicial functioning to understand if, despite the absence of a State apparatus (precisely a headless State), a binding legal order can exist.

Continue reading

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Forza Italia!

https://www.gofundme.com/f/q354dt-forza-italia…

Friends of the CCSDD, please consider donating to the GoFundMe fundraiser by Elif Nisa Polat:

Forza Italia!

The Fondazione Sant’Orsola ONLUS, in agreement with the Policlinico, has activated a fundraising campaign in support of the hospitals and healthcare staff in Bologna. This campaign will support 2 organizations in the Emilia-Romagna region in Italy:

1. Sant’Orsola Foundation, which supports hospitals in Bologna and health workers who are on the frontlines of the fight against the Coronavirus.

2. Civil Protection Agency, which provides wide-range support in identifying infected individuals, logistics, and emergency response.

The proceedings of this campaign will be split in half between those institutions in order to provide support to those trying to limit the spread of the virus and those treating patients. Even a small donation can help this campaign reach its fundraising goal. And if you cannot make a donation, please feel free to share and help spread the word!

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Montenegro Summer School 2020

The #CCSDD is pleased to announce the “EU and Legal Reform” 2020 Summer School will be held July 6 – 13 in Montenegro! The application process is open and a number of full and partial scholarships are available.

https://www.ccsdd.org/eulr.cfm

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Sarajevo Study Trip 2020

In this year’s edition of the CCSDD Sarajevo Study Trip, our student group explored the post-conflict reconstruction process in Bosnia and Herzegovina (BiH). Through meetings with representatives of national institutions, major non-governmental organizations, international media outlets, educational institutions, and foreign diplomatic missions, participants gained a rich understanding of the triumphs, failures, and ambitions of rebuilding this war-torn country. The lessons learned from the trip are not only important for rebuilding BiH, but also other conflict-affected areas around the world.

The 4-day study trip kicked off with a citywide tour of Sarajevo spanning sites from the Bosnian War. On our tour, we had the opportunity to visit several significant historical and cultural sites, including the Historical Museum of BiH, and the Old Jewish Cemetery atop Mount Trebevic where Serb militias had taken key positions during the siege of the city. The tour allowed us to gain a sense of what Sarajevo endured during the conflict, and served as a proper introduction for meetings and discussions which followed during our visit.

The meetings addressed ongoing efforts being made by the international community to rebuild BiH. The first took place at Al Jazeera Balkans, where participants were given a chance to understand how the press operates in the Balkans today. Mass media entities like Al Jazeera continue to face numerous challenges in reaching out to viewers across the Balkans, especially considered the fractured political and national state of affairs. Next up, we visited the Italian Embassy where we met with the Ambassador of Italy to BiH. It was a great opportunity to learn about the country from a diplomat’s point-of-view and to understand the Western European relationship with BiH and the Balkans, as well as the intersection between European Union and Italian foreign policy. Later we visited the offices of the Organization for Security and Cooperation in Europe (OSCE), which focuses on regional security, civil liberty, and freedom of the press. It was a great opportunity for students to learn about the most pressing social and political issues facing BiH today, including ethnic segregation in public schools and widespread government corruption. Following the meeting with OSCE, we met with representatives at the BiH Field Office of the United Nations High Commissioner for Refugees (UNHCR). It was astonishing to learn that 92,000 internally displaced persons (IDPs) still exist in BiH today, as well as the nuances surrounding policy towards migrants and refugees. We also had an opportunity to discuss the effect of the European Migrant Crisis on BiH and how recent events have affected the reintegration process of IDPs in Bosnian society.

The second day of meetings began with visits to the UN Development Programme, the Constitutional Court of BiH, and the European Union (EU) Delegation to BiH. At the UNDP, our group further explored the political struggles faced by Bosnia and Herzegovina following the end of the Bosnian War and signing of the Dayton Agreement. Even today, the country relies on the signed accord as its constitution, with a rotating trilateral presidency elected by the Bosniak, Bosnian Serb, and Bosnian Croat populations. This has caused much gridlock, political corruption, and an inability to reform due to persistent nationalist sentiment promoted by the de facto political parties in the nation. Afterwards, we visited the Constitutional Court of BiH, where we met the president of the court and learned about the role of this legal body after the signing of the Dayton Accords in 1995. Today, there are three different constitutions that exist in the country, a constitution for the Federation of BiH, a constitution for Republika Srpska, and a constitution for the country as a whole. Constitutional reform presents one of many challenges to Bosnia in becoming a full-fledged EU member state.

The last day was the excursion to Potocari and Srebrenica where we visited the memorial to the victims of the genocide and met with survivors who lost family members. At Snaga Zene, The Mother’s of Srebrenica Association, we listened to first-hand accounts of the genocide and its legacy on various Bosniak communities throughout eastern BiH. Although it was an emotionally heavy and tragic visit, it was important to hear the mothers’ stories and understand the process for rebuilding their lives. Afterwards, we visited the memorial to the more than 8,000 men and boys who lost their lives at Srebrenica. We also had the chance to visit “The Dutchbat,” the United Nations compound where Dutch UN peacekeepers were encamped during the Srebrenica crisis. Now a museum, our group toured the area and heard from an on-site historian about his connection to the conflict and genocide.

In addition to the organized meetings and excursions of our study trip, participants had the opportunity to visit religious sites, taste local foods, and experience contemporary Bosnian culture. The trip was unique in that it was an opportunity to experience Bosnia of the past and Bosnia of today, and witness firsthand the challenges faced by this country. Ultimately, the CCSDD Sarajevo Study Trip was an academic success and was well-received by all participants.

Alex Ferraz

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“European Constitutional Courts and Transitions to Democracy” – Francesco Biagi

We are very pleased to announce that CCSDD Researcher Francesco Biagi’s new book, European Constitutional Courts and Transitions to Democracy, is out! The volume, published by Cambridge University Press, brings together research on democratization processes and constitutional justice by examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century. Using a comparative perspective, Biagi examines how the constitutional courts during that period managed to ensure an initial full implementation of the constitutional provisions, thus contributing – together with other actors and factors – to the positive outcome of the democratization processes. Congratulations Francesco!

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CCSDD visits Maastricht conference: “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States”

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This past Wednesday and Thursday (December 4-5), our very own Dr. Marko Milenkovic took part in the “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States” conference at Maastricht. Dr. Milenkovic served as the chair of panel 6, titled “EU Agencies and Member States: political and judicial accountability.” During the conference, participants discussed future activities for The Academic Research Network on EU Agencies & Institutional Innovation (TARN) network.

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