The international law surrounding trafficking in persons and smuggling of migrants comes in for frequent criticism. Scholars and legal experts have pointed out that the definitions used in the Trafficking in Persons and Smuggling of Migrants Protocols supplementing the United Nations Transnational Organized Crime Convention (UNTOC) obfuscate more than they clarify. They have catalogued the unintended consequences of the criminal justice approach taken by these instruments, and highlighted the ineffectiveness of the international cooperation assumed within them.
These failings say less about the framework itself than about our interpretation and application of it.
Even those who work extensively on these issues may have trouble recalling the ‘scope of application’ of these instruments. Article 4 of both protocols clarifies that they apply where the trafficking or smuggling offences at issue “are transnational in nature and involve an organized criminal group.” Yet we have long stopped asking what this means in practice.
Even the United Nations Office on Drugs and Crime (UNODC), the ‘guardian’ of the UNTOC, interprets article 4 in a way that essentially renders it irrelevant. Its legislative guides and model laws explain that ‘transnationality’ and ‘involvement of organized criminal groups’ need not be captured in domestic offences, so that prosecutors are not required to prove these elements in order to secure conviction. An interpretative leap is then made to effectively conclude that the scope of application should be disregarded when using these instruments, even though they must be interpreted together with the convention. That the protocols are inextricable from the convention is emphasised right up front in article 1 of both protocols, to affirm that offences created by these instruments are to be regarded as offences established in accordance with the convention.
The question then becomes: if article 4 does not mean what it says it means, what then does it mean?
An earlier draft of the trafficking protocol proposed limiting the scope of purpose to ‘international’ trafficking. And, before the scope of application received its own article, drafters discussed alternatives like including it within the UNTOC’s statement of objectives, or as a ‘seriousness test’ combined with an ‘organized nature’ test. They also contemplated providing an exhaustive or illustrative list of offences. This history speaks to the role that article 4 was meant to play in the eyes of the drafters. The scope of application was included to keep our eyes on the ball: transnational organised crime.
An unbounded field of play
The persistent disregard of article 4 is, in my view, one of the reasons that the definitions of ‘trafficking in persons’ and ‘smuggling of migrants’ remain contested. It also fuels conceptual challenges that frustrate response, including the ‘exploitation creep’ that dilutes the serious crime of trafficking in persons that the drafters envisaged into mere exploitation. It has allowed the made-up term ‘modern slavery’ to further muddy our understanding, casting the net of concern so wide that we no longer know what we are talking about when we talk about trafficking. It has allowed for low-level recruiters and madams and brokers to be prosecuted in place of the traffickers above them. And it has contributed to competition for funding. Good faith interpretations of international law should mean that, depending on the circumstances, some actors lean in while others step aside. As it is, stakeholders frequently lay claim to expertise they do not have, bringing the wrong responses to bear as a consequence.
Criminal justice responses rarely help when they target desperately poor families with children in domestic servitude, or in places where early marriage is a deeply entrenched cultural practice. Likewise, the conflation of poor labour conditions with the serious crime of human trafficking forecloses the possibility of using international labour standards as a framework for redress.
A serious criminal justice response was never meant to apply to a hapless motorist driving an irregular migrant across a border.
Similarly, in addressing smuggling of migrants, commentators rightly note that there is a dangerous shift towards ‘crimmigration’ – an approach that interweaves criminal law and immigration law in order to criminalise both migrants and those who assist them. Again, this does not speak to the flaws of the smuggling protocol, but to its misuse whether in ignorance or by design.
A serious criminal justice response was never meant to apply to a hapless motorist driving an irregular migrant across a border. And a fishing boat delivering rescued migrants in distress to a place of safety is a question for maritime, migration, and humanitarian law, not the law against organised crime. The current debate raging around the ‘financial or material benefit’ element of the smuggling offence could be spared if we remembered that article 4 places the actions of humanitarian actors and migrants themselves beyond the scope of the smuggling protocol.
When commentators highlight the diminishing involvement of organised crime in human trafficking and migrant smuggling, they are, in actuality, demonstrating the drift away from what the UNTOC and its protocols were intended to address. This and the above examples are not proof of a flawed framework, but of our flawed understanding and application of it. This shift in scope must be corrected if we are to guard against international law being weaponised against the wrong people.
Return to roots
The UNTOC and its protocols are called the Palermo Protocols for the city in which they were opened for signature twenty years ago. Palermo, the birthplace of the Sicilian mafia, was not arbitrarily chosen. It was a hat tip to the transnational organised crime the international community was seeking to leverage international law against. We must remind ourselves of and reclaim this legacy.
Questions will still emerge, of course, about the meaning of ‘transnational’ or whether states defining ‘organised criminal group’ more broadly than the UNTOC fall below or exceed minimum standards. But these discussions might spare us from those we are currently having about what human trafficking means alongside exploitative labour, forced labour, and ‘modern slavery’, or whether an NGO worker obtains material benefit when she saves a migrant’s life at sea.
It may be too late to reverse the shift in scope that has taken place. Those looking for political currency against irregular migration are unlikely to heed a clarified legal framework. And for organisations and activists competing for funds, the language of ‘human trafficking’ is too powerful a rallying cry to give up easily.
But if we care about the letter and spirit of international law, are serious about avoiding duplication of effort, and genuinely want to allocate resources effectively in the crowded counter-trafficking and counter-smuggling space, then we need to start talking about article 4.