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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