By Jean-Pierre Gauci
On Tuesday 18th October, the European Union marks its fifth anti-trafficking day. On this occasion, I propose to discuss some of the salient features of the recent EU Directive on Trafficking in Human Beings (THB Directive or the Directive). In brief, trafficking is the deceitful or forceful acquisition of a person for the purpose of exploitation (the definition in the Directive provides more detail and examples of acts and means which may amount to trafficking). The numbers are staggering. The BBC recently revealed that at least 400 African children had been identified as having been trafficked to the UK. A Frontex Risk Analysis report found that 6,991 potential trafficked persons were reported by 27 EU countries in 2009, up 34% on the 2008 figure of 5,200 potential victims. Of the total, almost 25% of identified victims were men and 15% were minors. These are known figures of identified persons, whilst an even bigger number go unnoticed. The US department of State calculates that around 800,000 persons are trafficked every year with the ILO estimating that over 12 million people worldwide are in forced labour, bonded labour, forced child labour or sexual servitude at any given time. The Commission noted that ‘It is reasonable to estimate from the available figures that every year several hundred thousand people are trafficked into the EU or within the EU area’. With these figures in mind, the impact of counter-trafficking initiatives is often called into question. Trafficking amounts to a serious violation of human rights, as acknowledged by, inter alia, its explicit prohibition in Article 5 of the Charter of Fundamental Rights. It is one of the most serious crimes worldwide, it amounts to slavery and is one of the three most profitable international crimes with an estimated annual revenue of over 30 Billion US dollars. Various EU Member States are major destination countries for persons from both outside and inside the union. Trafficking in human beings is a serious crime, often committed within the framework of organized crime. The Directive notes that preventing and combating trafficking in human beings is a priority for the Union and the Member States. (Preamble)
In this year’s activity, the European Union has something to celebrate. In 2011, the THB Directive was adopted, marking an important development and marked improvement in the EU’s efforts to combat the crime that shames us all (UNODC). It replaces the 2002 Framework decision and is intended to complement Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.
It builds on the requirements of EU Member States under the Trafficking Protocol and the COE Trafficking Convention but has the added advantage of being a binding instrument of European Law, with the enforcement mechanisms attributed to that (most notably the potential role of national courts and the European Court of Justice). The Directive re-focuses attention on criminalization but also addresses issues relating to the treatment of trafficked persons, as well as prevention of trafficking. Each of these issues will be discussed in turn. This Directive establishes minimum rules concerning the definition of criminal offenses and sanctions in the area of trafficking in human beings. It also calls for the introduction of common provisions to strengthen the prevention of the crime and the protection of trafficked persons. The importance that the directive places on the latter, namely prevention and protection, is an important improvement on existing instruments that have tended to make these concerns conditional and subservient to the law enforcement approach that looks at trafficking as a violation of criminal and immigration laws.
The definition of the crime is largely the same as that found in the trafficking protocol and the COE convention as well as the framework decision which the directive repealed. What is interesting is its mention of begging and the exploitation of the criminal activities of others when listing the minimum list of what exploitation shall include. These are not mentioned elsewhere but reflect the new realities experienced in Europe over the last years. The expansion is allowed under the existing definitions that clearly illustrate forms of exploitation but do not provide an exhaustive list. Indeed, the Directive fails to provide a definition of exploitation.
Article 8 of the new directive is intent on ensuring that investigations and prosecutions do not face unnecessary hurdles. It provides that Member States shall ensure that investigation into or prosecution of offenses referred to in Articles 2 and 3 is not dependent on reporting or accusation by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement. It further obliges Member States to ensure that the necessary training and resources are available to the relevant entities within the State to ensure that such investigations and prosecutions are effectively carried out.
A key provision is the emphasis that the Directive places on identification. Whilst it is all well and good to have nice provisions for the protection of trafficked persons, their impact will be minimal if efforts aren’t made to identify trafficked persons. Unfortunately, all too often, trafficked persons are passed off as irregular immigrants or simply people who want to migrate into the country. This is all the more ‘appealing’ to States who know that smuggled persons are entitled to less rights under the international framework than trafficked persons. The directive provides that Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with the relevant support organizations.
The Directive also acknowledges the potential role of different stakeholders, including NGOs, in counter-trafficking efforts. NGOs and support organizations, as well as churches, schools and local groups, have a critical role in the planning and implementation of measures to prevent and counter trafficking. Above all, they have access to those vulnerable to trafficking and might also be in touch with trafficked persons themselves or others who might be aware of trafficking situations.
The Directive also makes specific provision regarding trafficked persons who are minors, acknowledging their particular needs and building on the more generic requirements emanating from the Convention on the Rights of the Child. The best interest of the child is to be the primary consideration in the application of the directive. Such trafficked persons are to be provided with support and assistance in the short and long term with regards to their physical and psycho-social recovery, based on an individual assessment. The Directive also addresses prevention by obliging Member States to take measures to reduce the demand for trafficking and to raise awareness of the relevant risks.
There is one point where, in my view, the Directive does not go far enough. Political compromise led to a situation where ‘assistance and support’ has been provided to all trafficked persons but protection has been reserved only to the situation of the ‘criminal justice program’. This has, to some degree, resurfaced the concerns raised by other instruments that make protection conditional on cooperation. The residence permit for cooperating trafficked persons directive is a critical example of this approach. Let us, however, take one step back. Assistance and support appear to refer to the short term needs of trafficked persons, aimed at providing initial assistance including medical aid. This is welcome, as is the provision that obliges States to ensure that these are to be provided irrespective of the willingness of the individual to cooperate with the investigations. It is to be noted that here the Directive speaks of cooperation with investigations, which improves on the situation of the COE Convention which only prohibits conditionality when the person is a witness. This seems like a technicality but can have real implications in individual cases.
The directive also provides for non criminalization of trafficked persons. However, the relevant provision states that Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. Moreover, the provision does not directly provide for non-criminalization. It merely obliges Member States to allow their officials to take this decision, substantially weakening the provision. The wording of the provision is also restrictive.
Of graver concern is the fact that protection is reserved to the context of the criminal justice process. Trafficked persons face a number of risks, including risk of retaliation, from their former traffickers, ostracisation by their family and community, as well as a heightened risk of re-trafficking. These concerns are real. The decision to cooperate is not an easy one and there are various reasons, often linked to these fears, why individuals opt not to cooperate with the authorities. Some might simply want to get their life back in order, others are simply too tired, traumatized or stressed to go through what sometimes adds up to secondary victimization. Others might simply not trust the authorities. In a situation as traumatic as this, can we really claim that a system that effectively penalizes those who don’t cooperate by limiting the protection to which they are entitled is fair? My answer would tend to be in the negative.
The Directive acknowledges the potential links between asylum and trafficking in requiring States to inform trafficked persons of their right to seek asylum under national law. This goes further than provisions in previous instruments which merely provided that their provisions were to be applied “without prejudice” to the right to seek asylum. This, in turn, opens a further channel of protection for trafficked persons and one which might be required due to the insufficiency of protection tools within the counter-trafficking framework. Indeed, I have argued elsewhere that the protection of trafficked persons has fallen victim to the law enforcement approach to trafficking. Asylum offers one channel to protect some trafficked persons who fulfill the relevant criteria – most notably of having a well founded fear of persecution for one of the convention grounds.
The directive therefore marks important improvements on the existing EU framework. It builds on the requirements set out in the COE Convention and in some respects goes beyond them. It definitely makes them more enforceable. With its limitations, largely due to political compromise, one can safely say that the Directive is likely to leave a positive impact on Europe’s capacity to address the issue of trafficking and to better address the needs of trafficked persons. It requires, however, effective transposition and implementation on the national level – in both law and practice. The impact remains to be seen. Until then, one cannot help but be hopeful.