Part 1: The Organized Crime Convention
Proposals for a treaty on transnational organised crime were first raised in November 1994, but it was several years before the UN General Assembly established an intergovernmental group of experts to prepare a preliminary draft.10 Following receipt of the report of the group of experts,11 the General Assembly decided to establish an open-ended, intergovernmental Ad Hoc Committee to elaborate “a comprehensive international convention against transnational crime”, and to discuss the possible elaboration “of international instruments addressing trafficking in women and children … and illegal trafficking in, and transporting of migrants, including by sea”.12 Three years and eleven sessions later, the Ad Hoc Committee concluded its work in October 2000, finalising not just the UNCTOC, but also three additional treaties (Protocols), dealing, respectively, with Smuggling of Migrants;13 Trafficking in Persons, Especially Women and Children; and Trafficking in Firearms.14
The significance of these developments should not be underestimated. The Vienna Process, as it came to be known, represented the first serious attempt by the international community to invoke international law as a weapon against transnational organised crime. Perhaps even more notable was the selection of trafficking and migrant smuggling as the subjects of additional agreements. Both issues were, at the time of drafting, high on the international political agenda. While human rights concerns may have provided some impetus (or cover) for collective action, it was clearly the sovereignty and security issues surrounding trafficking and migrant smuggling, as well as the perceived link with organised criminal groups operating across national borders, that provided the true driving force behind such efforts.15
Key features and obligations
The Organized Crime Convention is essentially an instrument of international co-operation: its stated purpose being to promote interstate co-operation in order to combat transnational organised crime more effectively (Article 1). In this respect, its goal is to enlarge the number of States taking effective measures against transnational crime, and to forge and strengthen cross-border links.16 More specifically, the Convention seeks to eliminate “safe havens”, where organised criminal activities or the concealment of evidence or profits can take place, by promoting the adoption of basic minimum measures.
Article 3 sets out three prerequisites for application of the Convention to a particular situation. First, the relevant offence must have some kind of transnational aspect. A transnational offence is defined in Article 2 of the Convention as one which is committed in more than one State; or committed in one State but substantially planned, directed, or controlled in another State; or committed in one State but involving an organised criminal group operating in more than one State; or committed in one State but having substantial effects on another. Second, it must involve an organised criminal group, defined as:
a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences … in order to obtain, directly or indirectly, a financial or other material benefit.
Third, it must constitute a “serious crime”, meaning conduct constituting a criminal offence, “punishable by a maximum deprivation of liberty of at least four years or a more serious penalty”. These broad definitions enable States to use this instrument to address a wide range of contemporary criminal activity, including trafficking and related exploitation. This is especially important in view of the fact that States may become a party to the Convention without having to ratify any or all of the Protocols.
The core obligation of the Convention is that of criminalisation. States Parties are required to criminalise a range of offences, whether committed by individuals or corporate entities, including: participation in an organised criminal group,17 public sector corruption,18 laundering of the proceeds of crime,19 and obstruction of justice.20 These offences are also to be made subject to sanctions that take into account the gravity of the offence.21 Critically, the obligation of criminalisation stands independently of the transnational nature of the conduct of an organised criminal group.22 In other words, these are not to be considered elements of the offence for criminalisation purposes.23
A lack of communication and co-operation between national law enforcement authorities has been identified as one of the principal obstacles to effective action against transnational organised crime, including trafficking. The Convention sets out a range of measures to be adopted by parties to enhance effective law enforcement in this area through, inter alia, improving information flows and enhancing co-ordination between relevant bodies.24 The practical application of these provisions is likely to be enhanced by the inclusion of a detailed legal framework on mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to applicable offences.25 The relevant provisions constitute, in effect, a mini-treaty that can be used by States as the legal basis of a request for mutual legal assistance for a range of purposes, including the taking of evidence, effecting service of judicial documents, the execution of searches, the identification of the proceeds of crime, and the production of information and documentation. States Parties are also encouraged to establish joint investigative bodies,26 come to formal agreement on the use of special investigative techniques,27 consider the transfer of criminal proceedings28 and sentenced persons,29 and facilitate extradition procedures for applicable offences.30 National law enforcement structures are to be strengthened through education and training of relevant officials in order to prevent, detect, and control transnational organised crime.31 Parties are to endeavour to take certain legal and financial steps to prevent transnational organised crime.32 The reality that developing countries will require financial and technical assistance to fully implement the Convention’s provisions is acknowledged in a detailed article that sets out a range of international co-operation measures, including the establishment of a dedicated UN funding mechanism.33
The Convention contains several important provisions on victims of transnational organised crime. States Parties are to take appropriate measures within their means to provide assistance and protection to victims – particularly in cases of threat of retaliation or intimidation.34 Appropriate procedures to provide access to compensation and restitution are to be established,35 and, subject to their domestic laws, Parties are to enable the views and concerns of victims to be presented and considered during criminal proceedings against offenders.36 Appropriate measures are also to be taken to protect witnesses (including victims who are witnesses) from potential retaliation or intimidation.37 The only other provision touching upon victims relates to the requirement that Parties participate, as appropriate, in international projects to prevent transnational organised crime: “for example, by alleviating the circumstances that render socially marginalized groups vulnerable to the action of transnational organized crime”.38
Relationship between the Convention and the Trafficking Protocol
The general rules governing the relationship between the Convention and its Protocols are set out in the Convention itself, with additional guidance provided by particular provisions of the Protocols. When read together, it is possible to identify four basic principles. First, as the Protocols were not intended to become stand-alone treaties, States must ratify the Convention before ratifying any of its Protocols39 and a Party to the Convention is not bound by a Protocol unless it also becomes party to that Protocol.40 Second, the Convention and its Protocols must be interpreted together, taking into account their stated purposes.41 Third, the provisions of the Convention apply, mutatis mutandis, to the Protocols.42 This means that in applying the Convention to the Protocols, modifications of interpretation or application should be made only when (and to the extent that) they are necessary.43 Fourth, offences established by the Protocols are to be regarded as offences established by the Convention. As a result, the Convention’s general provisions on matters such as victim protection, law enforcement co
-operation, mutual legal assistance, and extradition, for example, are available and applicable to States in their implementation of the more specific and detailed provisions of the Protocols.44
Part 2: The Trafficking Protocol
The origins of the Trafficking Protocol can be traced back to Argentina’s interest in the issue of trafficking in minors, and to its dissatisfaction with the slow progress on negotiating an additional protocol to the CRC to address child prostitution and child pornography. Argentina was also concerned that a purely human rights perspective to this issue would be insufficient, and accordingly lobbied strongly for trafficking to be dealt with as part of the broader international fight against transnational organised crime. Its proposal for a new convention against trafficking in minors was discussed at the 1997 session of the UN Commission on Crime Prevention and Criminal Justice.45 The timing was fortuitous. The powerful European institutions had recently decided to take the issue of trafficking seriously and were in the midst of developing detailed policies and responses. The United States had also become active, with its President preparing to issue a detailed memorandum on measures to be taken by its own government to combat violence against women and trafficking in women and girls. A general awareness was also developing, amongst an influential group of States, of the need for a holistic approach where the crime control aspects of trafficking were addressed along with traditional human rights concerns.46
Argentina’s original proposals related only to the trafficking of women and children. At the first session of the Ad Hoc Committee established to draft the Organized Crime Convention, the United States produced an initial draft that referred to “trafficking in persons”.47 Those supporting the latter approach argued that limiting the proposed instrument to women and children was unnecessarily restrictive – particularly if the end purposes of trafficking were expanded beyond sexual exploitation. According to the travaux préparatoires, almost all countries expressed their preference for the Protocol to address all persons, rather than only women and children; although it was agreed that particular attention should be given to the protection of women and children.48 Following a recommendation of the Ad Hoc Committee, the UN General Assembly modified the Committee’s mandate to enable the scope of the proposed Protocol to be expanded to cover trafficking in persons, especially women and children.49
Drafting process
Before considering the substantive provisions of the Protocol, it is relevant to briefly touch on several aspects of the drafting process that were both unusual and influential. First, the level of civil society participation was unprecedented. Unlike its human rights counterpart, the crime prevention system of the United Nations is not of great interest to the international NGO community. The annual sessions of the UN Crime Commission are almost devoid of NGO input; and the deliberations of the Commission are very rarely exposed to civil society scrutiny. In the context of the Protocol negotiations, however, government delegations and the Secretariat were forced to deal with a swelling group of vocal and increasingly well-organised NGOs. While many of the organisations represented in Vienna had little international lobbying experience, the great number of submissions and interventions made by them suggest that this was not an obstacle to action. Collectively, the NGOs focused almost exclusively on the Trafficking Protocol, and only passing attention was paid to the Migrant Smuggling Protocol that was being drafted simultaneously. Of particular interest to NGOs was the issue of prostitution, and the way in which it was to be dealt with through the definition of trafficking.50 Another very unusual aspect of the negotiations was the sustained involvement of an informal group of Intergovernmental Organisations (IGOs) and instrumentalities, including: the UN High Commissioner for Human Rights, the United Nations Children’s Fund, the International Organization for Migration, the UN High Commissioner for Refugees, and, on one occasion, the UN Special Rapporteur on Violence Against Women. The aim of this coalition was to ensure that both Protocols represented a net advance for human rights.
A close analysis of the negotiations supports the conclusion that the sustained and active IGO/NGO involvement had a strong educative effect on the drafting group and contributed to the rapid pace of negotiations. In addition, sustained pressure from these quarters clearly influenced the decision of States to include/adopt: (1) a coercion-based definition of trafficking which recognises a number of end purposes in addition to sexual exploitation; (2) specific references to international law, including human rights law, refugee law, and humanitarian law; (3) an anti-discrimination clause; and (4) the protection of rights as a principal objective.
Definition, purpose, and scope
Under Article 3, trafficking comprises three separate elements: an action (recruitment, transportation, transfer, harbouring, or receipt of persons); a means (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or abuse of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person); and a purpose (exploitation).51 Exploitation is defined to include, “at a minimum”, exploitation of prostitution, other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs.52
The core aspects of the Protocol’s definition can be summarised as follows:
Internal and cross-border movement: trafficking can take place within a country (internal trafficking), as well as involve the movement of a victim from one country to another. Sometimes migrants who move safely from one country to another are subsequently trafficked within their country of destination.
Purposes and profile of victims: trafficking can take place for a range of purposes; it is not limited to sexual exploitation. Women and girls, men and boys, can all be victims of trafficking.
Process and result: the concept of trafficking in international law does not just refer to the process by which an individual is moved into a situation of exploitation – it extends to include the maintenance of that person in a situation of exploitation. Accordingly, it is not just the recruiter, broker, or transporter who can be identified as a trafficker, but also the individual or entity involved in initiating or sustaining the exploitation.
The role of ‘consent’: the definition includes a provision to the effect that the consent of a victim to the intended exploitation is irrelevant where any of the means set out above have been used.53 In other words: “Once it is established that deception, force or other prohibited means were used, consent is irrelevant and cannot be used as a defence”.54
The stated purpose of the Trafficking Protocol is three-fold: first, “to prevent and combat trafficking in persons, paying particular attention to the protection of women and children”; second, to protect and assist victims of trafficking; and, third, to promote and facilitate co-operation among States Parties to this end.55 The structure of the Protocol generally follows this three-part approach. In terms of its scope of application, it is relevant to note that some commentators have misunderstood the Protocol as requiring Parties to take action against trafficking only in respect to situations with a transnational element or involving an organised criminal group.56 While this interpretation does hold up with respect to the interstate co-operation obligations of the Trafficking Protocol it fails to capture accurately the nature of States’ obligations under the instrument as a whole. The provisions of both the Convention and the Protocol operate to require that the offence of trafficking be established in the domestic law of every State Party, independently of its transnational nature or of the involvement of an organised criminal group.57
Criminalisation obligations
The obligation to criminalise trafficking when committed intentionally is contained in Article 5 and is a central and mandatory provision of that instrument (see Table 3.1).58 Article 5 also obliges Parties to criminalise attempting to commit such an offence,59 participating as an accomplice in such an offence,60 organising or directi
ng others to commit such an offence,61 and the obstruction of justice when carried out with respect to offences established by the Protocol.62 Importantly, the obligation to criminalise extends only to “trafficking” as defined in that instrument, and not to “related conduct”.63 In other words, it is the combination of constituent elements making up the crime of trafficking that are to be criminalised, not the elements themselves.64 The obligation extends to both natural and legal persons; although the liability for legal persons does not need to be “criminal”.65
Interestingly, the requirement that Parties impose appropriate penalties for trafficking, accepted without question throughout the negotiation process, was quietly omitted from the final text of the Protocol. Absent a specific provision on the subject, the relevant provisions of the Organized Crime Convention apply. In accordance with their obligations under that instrument, States Parties are required to ensure that sanctions adopted within domestic law take into account, and be proportionate to, the gravity of the offences.66 The mutatis mutandis requirement also means that there are further mandatory provisions of the Convention which create obligations on Parties to take certain measures with respect to offences established under the Protocol. These include obligations to:
Criminalise the laundering of the proceeds of trafficking;67
Take appropriate measures to ensure that conditions of release for defendants do not jeopardise the ability to secure their presence at subsequent criminal proceedings;68
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