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A Human Rights Based Approach to Trafficking in Human Beings in Theory and

Practice

Conny Rijken∗
Dagmar Koster**

1. Introduction

In an era in which, through globalisation and expanding international relations, the


economic differences between countries and regions have become increasingly
pronounced, the old phenomenon of slavery gains renewed attention. People are being
moved inside and across borders to be exploited as money-generating commodities.
These new forms of slavery and slavery-like practices are usually referred to as
trafficking in human beings (hereafter: THB), a crime that, without any doubt, conflicts
with the human rights of its victims. The crime of trafficking is often approached from a
criminal law perspective with the aim to catch the perpetrators. In this approach, attention
for victims is practically only present to the extent they are relevant for law enforcement
purposes. However, it is realised in a growing number of countries that victims of
trafficking are particularly vulnerable and that the ordinary protection mechanisms for
victims and witnesses in criminal proceedings are not suited to provide these groups of
victims with adequate protection. Many countries have adopted special protection
mechanisms for victims of trafficking. These protection mechanisms generally apply to
illegal aliens who are victims of THB. They can usually only make use of these special
protection mechanisms if and for as long as they cooperate with the judicial authorities in
the criminal proceedings. This approach is not satisfactory, and therefore an alternative
form of adequate protection of victims of trafficking is the subject of this article, namely,
a human rights based approach to THB. In such an approach assistance to and protection
of victims is not dependent on criminal proceedings or migration law requirements. In
this article, an attempt is made to give hands and feet to a human rights based approach to
THB. In Section 3 this approach will be concretised and suggestions are made on how to
implement such an approach and what it should consist of. In this section the Victim
Assistance and Protection Package (the VAPP) is introduced. The efforts taken on the
European level are especially taken into account. Section 4 and 5 describe how other
developments within Europe related to THB might contribute to a human rights based
approach to THB. In these sections, influencing the demand side and state obligations in
human rights law are analysed on their contribution to a human rights based approach
(Sections 4 and 5 respectively). However, the elaboration of a human rights based
approach can only be understood if more general background information on the
phenomenon of trafficking is given in the next section.1

* Conny Rijken works as lecturer and researcher at Tilburg University.


** Dagmar Koster worked at the time of writing as a staff member legal affairs for the Dutch Rapporteur
on Trafficking in Human Beings in The Hague. The opinions expressed in this article do not necessarily
reflect those of the Dutch Rapporteur.
1
Although we fully realise that the scope of THB is not limited to sexual exploitation, the main example
the authors had in mind when writing this article was sexual exploitation.

Electronic copy available at: http://ssrn.com/abstract=1135108


2. Trafficking in human beings: the phenomenon, the victims, and the perpetrators

2.1. International definition


According to the first ever internationally agreed definition of THB, laid down in the UN
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children (hereafter: the Palermo Protocol),2 THB is the recruitment, moving or reception,
of a person under coercive or deceptive conditions for the purpose of exploitation. If a
victim under the age of 18 is involved, the use of a coercive or deceptive means is not
necessary in order to call such conduct trafficking. The exploitation can take place in any
socio-economic sector in which labour or services might be exacted from people.
Regardless of the different activities (e.g., recruitment, transfer, harbouring) and means
(methods of force or deceit) that can be used in the process of THB, and irrespective of
the economic branches it may be focused on, the core element of THB is exploitation.
‘Exploitation’ is defined in the Palermo Protocol as including, ‘at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of
organs.’ In later documents of regional international organisations, such as the EU
Council Framework Decision on Combating Trafficking in Human Beings3 and the
Council of Europe Convention on Action against Trafficking in Human Beings,4 this
definition of THB was copied almost in its entirety5.

2.2. Scope of the definition


Although an internationally agreed definition exists, this does not necessarily mean that
its scope, and thus what conduct can be understood to be THB, is fully clear. The
definition does not comprise clearly defined elements and terms and thus leaves room for
different interpretation. This is the consequence of the fact that the definition is the result
of an international compromise. It therefore should be seen as the lowest common
denominator.
The core element of THB is the use of a form of force. But the question is whether the
term ‘exploitation’ already includes a form of force in itself or not. According to the
dictionary, it can have both a neutral meaning and negative connotations. In practice,
‘exploitation’ is frequently used in a negative sense, especially in the context of THB.
‘Exploitation’ should then be understood to mean the enforced provision of labour or
services, under the threat of repercussions. In the neutral sense, ‘exploitation’ refers to
running a business. This difference in interpretation is of particular importance with
respect to the economic branch that is still mostly referred to in relation to trafficking: the
sex industry. In the international community, there is disagreement on whether one can
voluntarily choose to work or even to be employed in prostitution or in other work in the

2
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention Against Transnational Organized Crime, UN Doc. A/45/49
(Vol. I) (2001).
3
Council Framework Decision of 19 July 2002 on Combating Trafficking in Human Beings, OJ L 203,
1.8.2002, p. 1.
4
Warsaw, 16 May 2005, Council of Europe Treaty Series, No. 197.
5
The EU Framework Decision does not include the removal of organs, whereas the Council of Europe
Convention explicitly mentions that it applies to all forms of THB, whether national or transnational, and
whether or not connected with organised crime (see para. 2.2.).

Electronic copy available at: http://ssrn.com/abstract=1135108


sex industry. Those opposing this idea tend to regard prostitution as a form of violence
(generally against women) and as a form of slavery that needs to be combated or even
criminalised. In this (abolitionist or prohibitionist) view, (employment in or organising)
prostitution is equated with THB. Countries that take a more liberal position towards
(working in) prostitution rather focus on fighting involuntary forms of prostitution and
thus apply ‘exploitation’ only in its negative connotation. The Palermo Protocol leaves
room for both interpretations.6
Whether the definition in the Palermo Protocol covers only coercive actions with the
intention of exploitation or also designates the actual exploitation itself as THB is another
point of unclarity. Strictly following the definition (‘for the purpose of exploitation’)
would point to the former explanation.7 Yet, it would be rather strange to put in place, as
the Protocol requests or recommends in its other provisions, a system of victim
assistance, of law enforcement cooperation, and of preventive measures ‘only’ for
intentional exploitation and not for cases in which the exploitation actually took place. At
least instinctively, but particularly from the perspective of protecting and assisting the
victim of THB actual exploitation feels worse a crime than only the intention to commit
it. Logically, the approach to THB should therefore also include the exploitation itself.
The Palermo Protocol does not oppose this view although it is a weak point in the
definition that the focus is on the recruitment and not on the exploitation.
Another point of discussion, at least in the early days of the Protocol, is whether the
Palermo Protocol covers both transnational and internal THB. Given its link with the UN
Convention against Transnational Organised Crime, one would suppose only the former.
Indeed, this can explicitly be read in Article 4 of the protocol, which indicates that the
protocol applies to those trafficking offences that are transnational in nature and involve
an organised criminal group. However, considering Article 3(2) of the Convention, it
must be concluded that the cross-border aspect is not necessarily required. Besides,
Article 34 paragraph 2 of the Convention states that crimes listed in the convention shall
be established in domestic law independently of their transnational nature. Furthermore,
the way in which this is put into words does not affect the possibility of a party to the
protocol also applying the conditions of the protocol to internal trafficking and to THB by
single or small groups of perpetrators.
Finally, it is a discussion in itself what conduct can be called ‘exploitation’. In its
definition of ‘exploitation’,8 the Palermo Protocol refers to existing terms as forced
labour or services, slavery, or practices similar to slavery. Descriptions of these terms can
be found in international law, for example, treaties and conventions explicitly dealing
with these issues and in the case law of the European Court of Human Rights.9 The terms
point to rather drastic situations of dependency of a person in the power of another
person. However, the fact that Article 3 of the Palermo Protocol states that exploitation

6
The Travaux Préparatoires (A/55/383/Add.1) indicate, in this respect, ‘that the Protocol addresses the
exploitation of the prostitution of others and other forms of sexual exploitation only in the context of
trafficking in persons. The terms “exploitation of the prostitution of others” or “other forms of sexual
exploitation” are not defined in the Protocol, which is therefore without prejudice to how State Parties
address prostitution in their respective domestic laws.’
7
Staiger, ‘Trafficking in Children for the Purpose of Sexual Exploitation in the EU’, 13 European Journal
of Crime, Criminal Law and Criminal Justice, 4 (2005) 4, p. 607.
8
Article 3(a) of the Protocol.
9
See section 5 below.

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includes ‘at a minimum’ these conditions opens the door to the question of where the
dividing line lies between exploitation and other, lesser forms of abusive conduct. From
this perspective, there is a rather large grey area of conduct that might fall within the
scope of the trafficking definition, provided that it meets certain criteria that have already
been defined by the international community. It would be helpful if elements could be
defined to mark the difference between and the transition from ‘simple abuse’ into a
situation of exploitation. This is too far-reaching an exercise for this article and could be
called a challenge for further research.10
The fact that THB is dealt with by the international community in the context of
organised crime and is regarded as a human rights violation, at the least is a clear
indication that it concerns serious cases of exploitation.
What can be concluded at this point is that exploitation in the context of THB is a form of
abuse that is excessive in nature, either as a result of the seriousness of physical or
emotional manipulation (threats and violence) or as a result of a multitude of restrictions
that are imposed on the victim. These excesses take the form of human rights violations,
in the sense that elementary rights as safeguarded by international conventions are
violated or ignored. Exploitation is a limitation of the freedom of choice, movement, and
independence of a person who finds herself in a vulnerable position, and violates her
personal, physical, or moral integrity. Abuse of people that is not excessive in nature and
does not (per se) lead to human rights violations can, of course, still constitute criminal
behaviour that should be tackled, even under criminal law. However, it should not (at
least not necessarily) be regarded as THB. The threshold for that may be put rather high,
for THB in many countries is criminalised as one of the most severe crimes and should
thus be ‘reserved’ for the excesses.11

2.3. Trafficking and smuggling


There is a tendency to regard THB as a form of illegal immigration and to confuse it with
human smuggling. Although both phenomena can be regarded as undesirable
consequences of globalisation, and although both traffickers and smugglers of human
beings usually abuse or exploit people’s desire to improve their lives by building a better
future for themselves elsewhere, there are also fundamental differences.12 Smuggling
concerns assisting people, at their own request, to enter, transit, or stay in another country
illegally. It involves, first and foremost, compromising a state’s territorial integrity. It is
therefore the state that is the victim of this crime. A smuggled person could subsequently
be exploited, for instance, in order to pay for the journey, but this need not necessarily be
the case. Furthermore, the transport and accommodation organised for the smuggled
person may be so dangerous or degrading that he or she could be regarded as a victim
whose human rights have been violated, but this does not make him or her a victim of
THB, but rather a victim of the circumstances under which he or she was smuggled.

10
For a first attempt to this aim see: D. Korvinus, D. Koster, H. de Jonge van Ellemeet, Mensenhandel: het
begrip uitbuiting in art. 273a Sr, [THB- the element of exploitation in Article 273a Dutch Penal Code], 29
Trema 7 (2006), pp. 286-290.
11
For instance, the question is whether the bringing of a person from one country to another to employ this
person in agriculture for a lower salary than the normal average in the latter country must be considered to
be THB.
12
Staiger, ‘Trafficking in Children for the Purpose of Sexual Exploitation in the EU’, 13 European Journal
of Crime, Criminal Law and Criminal Justice, 4 (2005), p. 608-609.

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Whenever the agreement between a smuggler and the person smuggled is the result of
deception or involves high debts, and leads (directly or indirectly) to forced labour, the
smuggling case becomes a trafficking case. Smuggling can thus precede trafficking.
THB is in itself and by definition a serious violation of the fundamental rights and
personal integrity of the person being trafficked. It often involves cross-border activities,
but this is not an essential feature; intra-country trafficking also occurs. Although
significant, it is not always easy to make a distinction between THB, on the one hand,
and human smuggling, on the other. The distinction was also made by the international
community when drafting two distinct Protocols to the UN Convention against
Transnational Organised Crime. Whilst the Trafficking Protocol talks about victims of
THB, the Smuggling Protocol13 refers to the smuggling of migrants, thus making a
distinction between these crimes and the ‘victims’.

2.4. Causes of trafficking in human beings


The fact that THB occurs is for a large part a question of supply and demand, for labour,
for services, or for organs, in combination with an unequal distribution of wealth,
chances, and opportunities for people.14 Both the situation in the country or region of
origin and the situation in the country or region of destination play a role in the
occurrence of THB. Apart from victims that are kidnapped or sold by others and brought
into a situation of exploitation, in many cases, people more or less make themselves
available to others that turn out to be traffickers, because of their desire to escape from
push factors in their region of origin and because of the existence of pull factors in the
region of destination. Most often, there is a very subtle interplay of factors and, of course,
the victims never had the intention to expose themselves to exploitation.
Push factors concern living conditions, but also the person of the potential victim. Living
conditions are largely determined by the economic situation and perspectives in the
country of origin of the victim, such as an unequal distribution of wealth, unequal
opportunities on the labour market, and geographical or political circumstances. Personal
circumstances and motives of the person also play an important role. This concerns such
circumstances as an unstable family situation, an adventurous attitude, the urge to earn a
lot of money, or simply the need to survive. Especially for women in many countries,
there are additional push factors based on such historically or culturally determined
factors as a subordinate position and having fewer rights than men, owning less capital
(e.g., less land, lower incomes), and getting fewer chances on the labour market (for
example, they are the first to lose their jobs in periods of economic recession, there are
culturally or religiously determined obligations to take care of children or parents).15
Regions of destination are mostly in the more developed and richer parts of the country
or the world. Their economic and political systems offer attractive and inviting
circumstances to those in search for a better life. This includes factors such as a better
economic situation in the destination region, demand for (often cheap) labour, and better

13
Protocol against the Smuggling of Migrants by Land, Sea and Air of 15 December 2000, supplementing
the UN Convention against Transnational Organised Crime of the same date.
14
Ruggiero, ‘Trafficking in Human Beings: Slaves in Contemporary Europe’, 25 International Journal of
the Sociology of Law (1997), pp. 231-241.
15
Konrad, ‘Trafficking in Human Beings – the Ugly Face of Europe’, Helsinki Monitor 3 (2002), pp. 260-
271.

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rights and opportunities, at least for nationals, but not necessarily for those looking for
new opportunities, as many of them soon find out upon arrival. Besides, there is also the
market for labour and services that may very well and easily be offered under exploitative
conditions.16 The most prominent example is of course the sex industry, but low-skilled
labour in the informal economy and in labour-intensive sectors that meet tough economic
competition are also vulnerable branches. Sheer financial gain forms the motive for
exploitation, but not necessarily by the actual employer; in some cases, he may not even
be aware of the exploitative conditions under which his employee is living or working
through intermediaries. In those cases, these intermediaries, such as middlemen, pimps,
or temp agencies, are the real traffickers.

2.5. The victims


Who are the victims or possible victims of the traffickers? Although, according to the
broadly supported view, the interests of the victim should be at the centre of the attention
paid to combating THB, not much is known about the victims. What is known is mostly
based on findings concerning victims that have been identified in one way or the other,
but a possibly large group of victims remains outside the authorities’ field of vision. The
following information is largely based on findings and knowledge of victims of sexual
exploitation.17 Undeniably, the flow of victims mainly goes from the poorer regions to
the richer regions of the world; that is a simple economical principle caused by the
circumstances described above. Yet, it is a misunderstanding that victims are always the
poorly educated, naive people, nor are they always the poorest people in the country.
Such a relation between intellect, poverty, and susceptibility to trafficking cannot be
established, on the contrary.18 When looking at the push and pull factors described
earlier, it is people who are not satisfied with the situation they are in and who have the
ambition and see a possibility to improve it. Apart from the victims who are kidnapped or
sold, and also apart from the victims that are tricked into going abroad and into accepting
work elsewhere while completely ignorant, a good share of victims are in a way
‘equipped’ enough to know that the economic or political situation is better in other
places. They also have access to possibilities and means to travel, be these limited or
supplied or financed by others. They thus make a more or less informed choice to follow
their ambition, only though to soon find out that they have been cheated about the actual
situation they end up in.19 In this respect, there is no difference between men and women,
but of course their drive and the risk they run may and does differ. Where THB was
initially associated especially or exclusively with exploitation in the sex industry, women
16
L. Lap-Chew and M. Wijers, Trafficking in Women, Forced Labour, and Slavery-Like Practices in
Marriage, Domestic Labour, and Prostitution, (Foundation against Trafficking in Women, Utrecht, 1997),
p. 41-109.
17
See Dutch National Rapporteur on THB, Trafficking in Human Beings, Third and Fourth Report (Bureau
NRM, The Hague, 2004 and 2005). These conclusions may apply mutatis mutandis to victims of (other
forms of) economic exploitation. Smartt, ‘Human Trafficking: Simply a European Problem?’, 11
‘European Journal of Crime, Criminal Law and Criminal Justice’, 2 (2003), pp. 167-169.
18
Dutch National Rapporteur on THB, Trafficking in human Beings, First Report, (Bureau NRM, The
Hague, 2002), pp. 71-112.
19
Konrad, ‘Trafficking in Human Beings – the Ugly Face of Europe’, Helsinki Monitor 3 (2002), pp. 261-
262. Lehti, et.al., ‘Trafficking in Women and Children in Europe’, in S. Nevala et. al., (eds.), Organised
Crime, Trafficking, Drugs: Selected papers presented at the Annual Conference of the European Society of
Criminology, (HEUNI, 2003), pp. 116-118.

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and children were most likely to become victims. Yet, also men can be victims of sexual
exploitation. With the broader definition of THB in mind (all labour, services, and the
removal of organs), men are even more obviously a target group than women and
children, depending on the type of labour or services.20
THB is not only about bringing people in a situation of exploitation, but also of keeping
them into such a situation. This presupposes the existence of means to exert pressure on
the victims in order to prevent them from escaping. The most common means of pressure
(in the case of transborder THB) is using the illegal residence or labour status of the
victim, to exploit victims’ fear for deportation. Yet, also (threatening with) using purely
physical or emotional violence, or more subtle means like (emotional) blackmail, putting
fear for the (law enforcement) authorities into the victim’s head or entering into a(n)
(abusive) love affair with the victim are being used. Traffickers are very creative in
finding effective ways to keep the victim under control.21

2.6. The perpetrators


Traffickers operate within countries and regions as well as across borders, making use of
the vulnerability of persons due to, for example, economic problems or regional conflicts.
They profit from improved communication and transportation facilities. As mentioned
above, the traffickers’ main or sole motive is financial gain, and criminals look for easy
gain, that is to say, as much money, as soon as possible, with the lowest risk of being
caught. It is known that many of the traffickers are organised in large or medium-sized
networks, in which there is a division of tasks. 22 Only some perpetrators operate as solo
actors. Based on the knowledge of traffickers for sexual exploitation, it can be stated that
the better traffickers are organised, the more they are involved in transnational (cross-
border) trafficking, thus leaving the internal trafficking to smaller criminal groups and to
individual perpetrators. Perpetrators of sexual exploitation come from more or less the
same countries as the victims. There thus seems to be a relation between their
nationalities, which is logical, given that exploitation often occurs within certain ethnic
groups. This is especially the case with other forms of exploitation, for example, in
Chinese restaurants.23

3. Steps to implement a human rights based approach to trafficking in human


beings

In this section, it is explained why we need a human rights based approach (or victim
centred approach) to THB and what it consists of. Furthermore, an important reason why
a human rights based approach is currently not implemented will be highlighted and

20
For a more elaborate description on this H. de Jonge van Ellemeet and M. Smit, ‘Trafficking for
Exploitation outside the Sex Industry’, in Ch. van den Anker and J. Doomernik (eds.), Trafficking and
Women’s rights, (Palgrave MacMillan, 2006).
21
L. Lap-Chew and M. Wijers, Trafficking in Women, Forced Labour, and Slavery-Like Practices in
Marriage, Domestic Labour, and Prostitution, (Foundation against Trafficking in Women, Utrecht, 1997),
pp. 86-92.
22
Dutch National Rapporteur on THB, Trafficking in Human Beings, Fourth Report, (Bureau NRM, The
Hague, 2005).
23
Provisional outcomes of a study on ‘other forms of exploitation’ of the National Rapporteur on THB, to
be presented in the 5th report which will be published in 2007.

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elaborated upon. Both migration law and criminal law disciplines are involved in fighting
THB. In our view the lack of cooperating between these two disciplines in relation to
anti-trafficking measures, is jeopardising an adequate response to THB. These two
disciplines are interwoven in such a way that they obstruct a more centralised position of
the victims and their needs. A solution for this entanglement can probably be found in the
Victim Assistance and Protection Package (VAPP) which will be introduced and
explained.

3.1. Why is a human rights based approach to THB required?


It is generally acknowledged that THB is both a cause and a consequence of the violation
of a person’s human rights. In trafficking cases, a broad range of human rights can be and
are violated. The most expressive violations are the violation of a person’s personal and
physical dignity, the right to personal freedom and security, and the principle of non-
discrimination.24 Since these violations cover a broad area in the social sphere and are
linked to different kinds of activities, attention to limit the chances of these violations
occurring should be focused on by various disciplines. This means that an adequate
response to the violation of these rights implies a multi-disciplinary approach, but with
the intention of preventing the violation of a victim’s human rights as a common
denominator.25 Experience has learned that, without such a holistic approach, the interests
of the victims and their special position are not sufficiently taken into account. Human
rights instruments place obligations on states in which these interests are taken into
account in a better way.26 It is recognised by the High Commissioner on Human Rights
that such an approach is the only way to retain focus on the trafficked person and to
prevent that the problem is simply reduced to a migration problem, a public order
problem, or an organised crime problem.27

3.2. What is a human rights based approach?


Since the 1990s, the policy approach to THB has been criticised many times for being too
much focused on a criminal law answer to THB. The solution to overcome this one-sided
policy was seen in the adoption of a multi-disciplinary approach in which migration law,
criminal law, labour law, equal opportunities, development cooperation, etc., receive
equal attention.28 This requires multilevel cooperation and coordination, which has not
been established on a broad scale so far. It seems that the call for a human rights based
approach is a further development of the multi-disciplinary approach, with a very special
addition. The core of a human rights based approach can be found in the central position
24
For a good indication of which rights are at stake, see Annex 3 to the Report of the EU Experts Group on
Trafficking in Human Beings, Brussels, 22 December 2004, p. 137.
25
See also the Report of the EU Experts Group on Trafficking in Human Beings, Brussels, 22 December
2004, pp. 62-65. The need for a holistic and integrated approach means that such an approach builds on the
respect and promotion of human rights as its foundation.
26
See also United Nations High Commissioner for Human Rights Principles and Guidelines on Human
Rights and Trafficking, E/2002/68/Add.1(2002).
27
Message from the UN High Commissioner for Human Rights, Mary Robinson, to the Ad Hoc Committee
on the Elaboration of a Convention against Transnational Organised Crime, Fourth session, Vienna 28 June
– 9 July 1999.
28
An overview of policy documents in which this multi-disciplinary approach is expressed can be found in
C. Rijken, Trafficking in Persons. Prosecution from a European Perspective, (Asser Press, 2003) pp. 92-
107.

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of the victim. In this approach, the position of the victims, the violations of their human
rights and their vulnerable position are the starting points for taking countermeasures
against THB. This may explain why the human rights based approach is also called the
victim centred-approach.29 A human rights based approach thus takes the protection of
the human rights of victims of trafficking as the guideline for adopting measures, policy,
and legislation in the field of combating THB.30
An important instrument adopted within the Council of Europe made an effort to adopt
this human rights based approach into a legally binding instrument, namely, the
Convention on Action against Trafficking in Human Beings. Paragraph 5 of the Preamble
to this Convention explicitly states that the respect for the rights and protection of victims
must be the paramount objectives of the fight against THB.31 An adequate response
cannot only be found in repressive measures, but must also include preventive, assisting,
and protective measures. This means that criminal law is part of the package of the
human rights based approach to fight THB, an important but not the only part, as we will
see in sections 4 and 5.

3.3. How to implement a human rights based approach


Although a human rights based approach is often proclaimed in words, it is not so often
applied in practice and needs to be implemented more elaborately. It will be shown that
much has already been established, both in criminal law and migration law, to assist and
protect victims of THB, but it must not be forgotten that the difficulties and negative
effects follow from the way criminal and migration law are interwoven when THB is
concerned. The reason why these two disciplines are so closely linked where THB is
concerned is a logical one and will be explicated below.

3.3.1. The interwoven relation between criminal law and migration law regards victim
assistance and protection
There is one factor that conflicts with a human rights based approach in the sense that the
assistance and protection of victims is not taken as the starting point of counter-
trafficking actions. This factor is the interwoven relation between criminal law and
migration law. With regard to the interests of the victims, law enforcement and migration
authorities are not in line with each other and often even contradict one another. Because
of this relation, these differences may frustrate the interests of the various authorities,
which is not to the advantage of the victim.
The attention for victims came only with the realisation that testimonies of victims are
indispensable when bringing a suspect of THB before the court and that the testimonies
of victims play a decisive role in a successful prosecution of the perpetrators, as other
hard evidence is often not available. At the same time, it was realised that victims are in a
particularly vulnerable position, as the perpetrators often know the victims and their

29
Principles and Guidelines on Human Rights and Trafficking of the High Commissioner on Human
Rights, E/2002/68/Add.1 (2002), point 1 and guideline 1.
30
See Annex 3 of the Report of the EU Experts Group on Trafficking in Human Beings, Brussels, 22
December 2004. It has to be realised that the term ‘victim’ is used in direct relation with the status of
trafficked persons as victims of a crime and human rights abuse. This is the main focus of this article. The
term ‘trafficked person’ must be broadly interpreted.
31
Explanatory report to the Convention on Action against Trafficking in Human Beings, Warsaw 16 May
2005, ETS 197, point 46.

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relatives very well, which makes them an easy target for reprisals if the victims testify.
The victims are made dependent on the traffickers and if they come from abroad, they do
not know the country and generally do not trust the police. Moreover, when they come
from abroad, they usually do not have a valid residence permit. This makes them even
more reluctant to report to the police and testify against the traffickers, because they are
afraid, and have often been threatened to that effect by the traffickers, of being expelled.
This vulnerable position of victims of trafficking was the motivation for adopting special
protection mechanisms in many countries and also on the non-national levels to protect
the victims, for example, by providing a residence permit. However, the ultimate goal of
this was to retrieve more testimonies from the victims for the criminal proceedings.
As explained in the introduction, THB is usually considered from a criminal law
perspective, but in anti-trafficking measures, an important role is also reserved for
migration law. Vice versa, in migration law, the importance of a criminal law perspective
is recognised as well. A good example is the B9 regulation in the Netherlands.32 It is
introduced to regulate or organise the legal stay in the Netherlands of aliens who are
victims of THB and it provides guidelines for assistance and protection to victims of
THB. The provisions are almost equally applicable to witnesses who testify. The aim of
this regulation is to stimulate victims of THB to report their traffickers to the police.
On the European level, the interwoven relation between criminal and migration law is
also present when granting protective measures to victims and/or witnesses of trafficking.
This standpoint is clearly reflected in the title of the directive dealing with these
protective measures, viz., the Directive 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.33 As this title shows, the aim of the Directive is twofold: on the one hand, it
is to obtain the cooperation of victims of trafficking and of illegal immigrants in criminal
procedures and, on the other hand, to provide assistance to them by granting a residence
permit. It clearly follows from its content that this Directive was drafted for the
protection of victims of THB, but this does not appear from the title. In earlier versions of
this Directive, it was even stated that it was not meant to protect the victims. The most
important provision for the assistance and protection of victims is of course the
introduction of a temporary residence permit for victims who cooperate with the law
enforcement authorities. Witnesses who are not (yet) victims of the crime of trafficking
seem to have been forgotten. The protection that can be obtained under this directive is
rather elaborate, apparently based on Article 6 of the Palermo Protocol; it includes social,
financial, legal, psychological, and medical aid. According to point 16 of the Preamble
and Article 11, victims are allowed to work and to receive education as soon as an
application for a temporary residence permit has been submitted. The third-country
nationals concerned must be granted access to special programmes set up for
reintegration, either in the country of origin or the country of residence, and to their
recovery of a normal social life (Article 12). According to Article 6 of the Directive, a
reflection period must be granted to the victims allowing them to recover and escape the
influence of the perpetrators and to consider whether they want to cooperate with the

32
Chapter B9 of the Dutch Immigration Circular 2000 on protective measures for victims of THB and
testifying witnesses, latest amendment on 8 November 2006, backdated to 14 August 2006.
33
Council Directive 2004/81/EC of 29 April 2004, OJ L 261, 6.8.2004, p. 19.

10
competent authorities. During this period, it is not allowed to expel the victim from the
country.
The main comment on this Directive is that it is aimed at third-country nationals, so
nationals of other EU Member States and of their own state cannot invoke this Directive.
After the accession of ten Central and Eastern European countries to the EU on 1 May
2004, many countries that are source countries of trafficking became part of the EU.
Consequently, the victims who are nationals of these states are left empty-handed, as they
do no longer belong to a third country. Besides, when victims do cooperate, they can only
be granted a temporary residence permit. This means that the victim will ultimately have
to leave the country (Article 13) unless the Member State has adopted national legislation
allowing the victim to stay. This is not a very attractive perspective for victims if they do
not want or are not able to return to their home country and it is a reason for victims not
to file a complaint against their traffickers.
It remains strange that the assistance and protection of victims is made dependent on the
criminal law and migration law perspective and this does not do justice to the seriousness
of the position the victims are in.

3.3.2. Effects of the interwoven relation


The negative effects of the interwoven relation between criminal law and migration law
can be divided into two categories. The first is effects following the conflict of interests
of the authorities involved, and the second is the consequence of decisions taken in
criminal proceedings for the application and granting of a residence permit and the right
to make use of assisting and protective measures.

3.3.2.1. The conflict of interests


It is widely recognised that the cooperation between different authorities involved in
fighting THB is lacking or at least not satisfactory. The effects of this lack of cooperation
are clearly felt in criminal proceedings when expulsions on the basis of migration law are
executed without taking into account the position of the person who is expelled and
without taking into consideration his or her relevance for criminal proceedings.34 For
instance, in the Netherlands it was practice some years ago to hold raids on houses where
illegal aliens were accommodated in Amsterdam and The Hague and in the streetwalkers’
district in Amsterdam, as a result of which people without valid residence permits were
immediately expelled from Dutch territory. It is very likely that (possible) victims of
trafficking were among these persons. Furthermore, with immediate expulsion, potential
evidence for criminal proceedings against traffickers has left the country as well.
Too often, governments respond to THB as a migration problem rather than a human
rights challenge, using trafficking as a justification for tighter border controls. This has
led to the deportation of trafficking victims, especially women, without adequate
consideration for their safety and well-being. Such an approach does not take into
account that victims who are sent back to their home country become vulnerable to being

34
The lack of testimonies following these actions of expulsion is seen in the Netherlands as a major
problem in the prosecution of traffickers. See C. Rijken, Trafficking in Persons. Prosecution from a
European Perspective, (Asser Press, 2003), pp. 204-207.

11
re-trafficked, thus maintaining the migration cycle.35 Therefore, efforts to combat THB
should be centred on the rights and protection of trafficked persons.

3.3.2.2. Decisions in criminal proceedings as the basis for assistance and protective
measures
The effect of a criminal law perspective in fighting THB is that victims lose their
residence permit and the right to make use of the assistance and protection mechanisms
once the case is decided or dismissed, regardless of whether the victims are in need of
this protection or not. This effect is undesirable and does not take into account the
vulnerable position of the victims. Currently, the protection of the victims takes a
subordinate role in criminal proceedings and is primarily acknowledged when it is in the
interest of the prosecution. The following analysis is mainly based on the Dutch system
but, in most other destination countries in Europe, a similar system exists.36
When a residence permit is granted to a victim of THB, this permit is often linked to the
relevance of the victim for the criminal procedure. In the Netherlands, aliens who are a
victim of THB can apply for a temporary residence permit on the basis of the B9
regulation.37 Before applying for such a permit, the victim has the possibility to make use
of a reflection period in which the victim can consider to file a complaint against the
trafficker or not. During the reflection period, expulsion of the victim is postponed and
the granting of a temporary residence permit upon making a complaint to the police has
the same effect. During the reflection period and after a temporary residence permit has
been issued, the victim can make use of assisting and protective measures. The vast
majority of these measures can be found in this regulation, which is actually strange as it
is a provision of migration law. The residence permit is valid until the criminal case has
been decided by the Court of Appeal. With the decision of the Court, the grounds for the
residence permit terminate. When the victim is no longer needed for the criminal case,
the temporary residence permit ends and the victim in principle will have to leave the
country.38 This means that the granting of the residence permit is primarily to serve the
criminal procedure; the aim of assistance and protection to the victim plays only a
subordinate role. This is not in line with the intention of putting in place a victim
protection regulation and can be regarded as a violation of the victim’s dignity and trust.
When taking the human rights based approach seriously, the assistance and protection
given to a victim should not depend on whether or not she is necessary for the criminal
procedure.39

35
Kapur, ‘Travel Plans: Border Crossings and the Rights of Transnational Migrants’, 18 Harvard Human
Rights Journal, Spring (2005).
36
A. van der Kleij, Provisions for Victims of Trafficking in Bonded Sexual Labour, i.e. Prostitution, in six
European Countries, report of BLinN, November 2003.
37
A wide range of problems arise in the execution of the B9 procedure. See, for instance, Koopsen,
‘Aanspraken slachtoffers mensenhandel en de B9-regeling’, [Claims of victims of THB and the B9
regulation], 20 Migrantenrecht 1 (2005), pp. 4-11.
38
Due to an amendment of November 2006 victims in the Netherlands will be granted a prolonged stay
when there is a conviction in the criminal case in which they filed a complained or in case there is no
conviction when the criminal procedure took three years or longer. The victim should apply for a residence
permit on one of these grounds herself. When no such grounds are evident the victim herself should
provide the evidence for the existence of humanitarian grounds in order to be granted a prolonged stay.
39
See also Recommended Principles and Guidelines on Human Rights and Trafficking of the High
Commissioner on Human Rights, E/2002/68/Add.1 (2002), guideline 6, points 1 and 4.

12
The possibilities for a victim to stay after the criminal proceedings are in general limited.
In most states, except for Italy, the expulsion can be enforced when the reflection period
ends and the victim decides not to file a complaint.40 The only possibility to remain in the
country is to apply for a residence permit on humanitarian grounds or on other grounds
(such as asylum or stay with partner). In the past, such an application was refused in most
cases but there seems to be more flexibility recently.41 The evidence for the existence of
humanitarian grounds must be provided by the victim. The existence of (risks for)
reprisals is however difficult to prove. Furthermore, reprisals and violent actions may be
directed against the relatives and/or in the home country of a victim, which is even more
difficult to prove. Because of this difficulty, the Dutch Minister for Immigration and
Integration has made agreements with several organisations to assist in building a file that
may contribute to provide this evidence. Guarantees for the safety of the victims after
they have to return to their home country when the residence permit has ended must be
given, otherwise the expulsion could be a violation of the principle of non-refoulement.42
This development must be supported and further elaborated and promoted in order to
provide decent protection also after the termination of the reflection period or the
temporary residence permit and in order to encourage the victim to file a complaint of her
own free will.

3.3.2.3. Disconnect migration and criminal law


What would even be a better proposal in this regard is to disconnect victim protection
from migration law and criminal law. We realise of course that, to a certain extent,
migration law and criminal law with regard to counter-trafficking measures are required
for an adequate protection of victims. It cannot be denied that a vast number of victims
do not have a valid residence permit and therefore run the risk of being expelled. What
we propose, however, is that the application of migration law is not made dependent on
whether a victim cooperates with the law enforcement authorities or not. The mere fact
that a person is a (possible) victim of THB should be enough to grant a (temporary)
residence permit on humanitarian grounds and to provide the victim with assistance and
protective measures.43 To disconnect migration law from the criminal procedure has the
advantage that the granting of a residence permit is not influenced by a (negative)
outcome in the criminal proceedings (for instance, a dismissal) and that its application is
treated more in line with the other migration procedures. It is even of no importance at all
whether criminal proceedings against the trafficker will be started before the victim can
get the residence permit or can make use of assistance and protective measures. The
migration service can, and in our view must, make its own judgment. In a criminal
procedure, many factors not necessarily related to the individual case can be decisive in

40
A. van der Kleij, Provisions for Victims of Trafficking in Bonded Sexual Labour, i.e. Prostitution, in six
European Countries, report of BLinN, November 2003.
41
Uitvoering B9 regeling, [Applying the B9 regulation], Report of the Conference 17-18 June 2004,
WODC.
42
Non-refoulement is defined in Article 33(1) of the UN Convention Relating the Status of Refugees: ‘No
Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.’
43
Obokata, ‘EU Council Framework Decision on Combating Trafficking in Human Beings: A Critical
Appraisal’, 40 Common Market Law Review 4 (2003), pp. 930-932.

13
not prosecuting the alleged trafficker, such as limited financial and human resources,
priorities, (a perceived) lack of evidence, etc. It seems unfair vis-à-vis the victim to make
these factors decisive in the question of whether or not she can get a residence permit and
whether or not she can make use of protective measures. The question of whether or not a
residence permit should be granted must depend on migration law criteria only, including
human rights considerations.44
Summarising the above, we would suggest to apply migration law for the purpose it was
set up for, namely, to decide on applications for residence permits, and to use criminal
law to investigate and prosecute perpetrators of, for example, trafficking. Victims should
be provided with sufficient assistance and protective measures on the very ground that
they are victims of the crime of THB.

3.3.3. A Victim Assistance and Protection Package (VAPP) for victims of THB
As mentioned above, the interwoven relation between migration law and criminal law
leads to turbidity of the discussions on counter-trafficking measures and conflicting
interests in the execution of these measures. Migration law should concentrate on the
granting of a residence permit as it does in all cases in which persons apply for a
residence permit, and criminal law should be used to prosecute traffickers. However, this
does not release the authorities involved from the obligation to pay special attention to
the position of the victim. On the basis of international (especially European) and
national obligations, protective measures for all victims of crime must be adopted. These
measures are often not sufficient for victims of THB and therefore special protection and
assistance measures should be provided for these victims.
The fact that a person is a (possible) victim of trafficking is serious enough to apply
assisting and protective measures. In order to meet the specific needs of victims of THB,
there should be one package of assisting and protective measures for victims of
trafficking which includes those measures that are recognised in international
instruments.45 The granting of a residence permit is one of these measures, but
irrespective of whether the person testifies and it should not (at least not automatically)
be limited to the period in which the criminal case is pending. In order to obtain some
consistency in the assistance and protective measures, such a victim assistance and
protection package should preferably be developed at the EU level. In this way, the

44
From the European destination countries, currently only Italy has a system in which, initially, the
duration of the residence permit is formally not made dependent upon the cooperation of the victim or upon
the criminal proceedings, although it must be admitted that, even in Italy, cooperation by the victims with
the authorities speeds up procedures. The prosecutor can demand for a right of abode for humanitarian
reasons if the victim makes a statement to the police which is intended to allow the person to free herself
from criminal association and participate in social integration programmes.
In Belgium, the residence permit is dependent upon the cooperation with the authorities but the possibilities
to receive a residence permit after the trial has ended are very broad. If their help was decisive in the
criminal procedure or if they can prove that they are integrated, many of the victims are given a permanent
residence permit. The latter is the case after two years of residence in the country.
45
Such as the Trafficking Protocol to the UN Convention against Transnational Organised Crime, the
Council of Europe Convention on Action against Trafficking in Human Beings, and the Council Directive
2004/81//EC 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.

14
human rights based approach (or the victim centred approach) could be realised and
implemented on a regional level.
In general, the position of victims of crime has gained more and more attention and has
been strengthened over the years, at least within the EU. Some examples of measures
taken are the Framework Decision on the Standing of Victims in Criminal Proceedings
and the Directive related to Compensation for Crime Victims.46 Examples of the general
provisions on assistance and protection for victims of crime in these instruments include
legal assistance, the right to protection, specific assistance, the right to receive
information, respect and recognition. For victims of trafficking, these provisions for
victim assistance and protection are in a sense too general and not directly suitable for
their special protection and other needs. These special needs for victims of trafficking are
a consequence of the specific character of the crime of trafficking. As we have shown in
the introductory section, THB can occur in many different forms, yet some common
aspects specific to victims of THB can be summarised as follows:47

- They have been mal treated and probably sexually and/or physically abused for a
longer period and must therefore receive specialised medical and psychological
aid.
- They often know the person who trafficked them (in many cases, a relative),
which increases the risk of reprisals or of being re-trafficked.
- The threat and violence used by the trafficker may also be aimed against the
relatives of the victim.
- Once it becomes known that a victim has worked as a prostitute, she is often
isolated and excluded from her family and environment, regardless of the fact that
she was forced. This means that a social network to help the victim recover from
her ordeal is often absent.
- Especially when victims originate from a foreign country, they do not
automatically have confidence in the police or other official authorities
- A vast number of victims of THB do not have a valid residence permit and are
therefore in an even more vulnerable position.
- Because of the particular relation with the trafficker it is important that the victim
is thoroughly informed about the criminal procedure and about the consequences
of testifying.

Given these specific aspects, it is clear that the ordinary protection and assistance
mechanism can be helpful, but is not sufficient and must therefore be extended with more
specific measures applicable to victims of THB. The next question then is what these
specific measures should consist of. As shown above considerable efforts have already
been made to describe and meet the special needs of victims of THB. These efforts

46
Council Directive 2004/80/EC of 29 April 2004 relating to Compensation to Crime Victims, OJ L 261,
06.08.2004, pp. 15–18, Council Framework Decision of 15 March 2001 on the Standing of Victims in
Criminal Proceedings, OJ L 082, 22.03.2001, pp. 1–4.
47
L. Lap-Chew and M. Wijers, Trafficking in Women, Forced Labour, and Slavery-Like Practices in
Marriage, Domestic Labour, and Prostitution, (Foundation against Trafficking in Women, Utrecht, 1997),
Dutch National Rapporteur on THB, Trafficking in human Beings, First Report, (Bureau NRM, The Hague,
2002). These remarks must not be considered exhaustive but must be seen as a motivation for adopting
special protection and assistance measures for victims of THB.

15
should not be neglected but, on the contrary, be revitalised and put in the centre of a
human rights based approach to THB. In addition to these measures, laid down in
(national and international, especially, European) documents, the VAPP should at least
pay attention to the following issues.
As soon as there is an indication that a person is a victim of THB, that person must be
informed of her rights. Protection to victims from the very first moment entails that the
victim must be provided with accommodation in a safe house. If a victim of trafficking
has no valid residence permit, she should be granted a residence permit on humanitarian
grounds, simply because she is a victim of THB and not because she cooperates or
intends to cooperate with the authorities. Expulsion must not be enforced. A reflection
period in which the victim can be provided with first aid, is given the possibility to think
about filing a complaint against the trafficker, and has had some time to recover is no
longer required if a person is immediately granted a residence permit. Victims should be
directly referred to a specialised NGO which arranges the accommodation, assistance,
and aid. Victims of trafficking must be provided with specialised medical care as well as
legal aid, especially concerning the juridical consequences of filing a complaint and
testifying. For victims of THB, it is extremely important that they are immediately and
adequately informed on the criminal procedure and the decisions that are taken in that
regard. It is, for instance, important for them to know whether the accused will remain in
detention or not and what kind of restrictions he has in custody. Special attention should
be paid to possible threats to relatives of the victim. Assistance should be given in
providing safety and security for relatives. The VAPP should also contain measures with
regard to leisure, training, and work, as well as a standard risk analysis in the event of
(voluntary) return to the country of origin or a third country. An additional advantage of
having such a VAPP in place is that it is applicable to all victims of THB, whether
(illegal) alien or national, whatever the form of exploitation and the features of the
perpetrator group behind the trafficking. The decisive factor is being a victim of the
crime of THB, not the legal position in the country nor the form of the exploitation or the
characteristics of the traffickers, nor the cooperation with the authorities in a criminal
procedure.
In general, it can be stated that an adequate protection of victims of THB requires a more
active attitude of immigration and law enforcement officers as well as awareness raising
of these authorities toward the situation of victims of THB.48 If these measures are taken
as a starting point for victims of THB, regardless of whether they testify or not, the first
steps to implement a human rights based approach can be realised.

4. Influencing the demand side of trafficking

In addition to a VAPP other measures need to be taken in the fight against THB. It is
generally acknowledged that the combating of THB can take place at two levels, namely,
in the prevention and in the prosecution of the crime. In the prevention of THB, there are
two options, namely, prevention on the supply side (for instance, by investigating in
countries of origin, financial aid, emancipation, and information) and prevention on the
demand side in the country of destination. This section focuses on influencing the

48
See also Recommended Principles and Guidelines on Human Rights and Trafficking of the High
Commissioner on Human Rights, E/2002/68/Add.1 (2002), guideline 5, point 1.

16
demand side as a way to strengthening a human rights based approached. In recent years,
the call to also involve the demand side (those who make use of sexual services of
victims of THB) in the fight against THB has become louder. This call is based on the
thought that making use of sexual services of victims of THB is a practice that should be
abandoned since it is morally reprehensible and in contradiction with the human rights of
the victim, namely, her honour and dignity. Taken in the sense of intentional use of the
services of a known victim of THB, actions affecting the demand side can contribute to a
human rights based approach of THB. In order to give hands and feet to such an
approach, a more active role for governments in destination countries to influence the
demand side of THB should be supported.
Article 19 of the Convention on Action against Trafficking in Human Beings from the
Council of Europe provides for a legal basis for such a role. This article states that states
must consider criminalising the use of services of a victim of THB. The explanatory text
to the convention explicitly states that this provision is not concerned with using the
services of a prostitute as such but only if the prostitute is a victim of THB. Regardless
the national policy on prostitution Article 19 may be a welcome addition in the
combating of THB. This will be illustrated in the next paragraphs in which the two most
diverse approaches to prostitution in Europe, namely, Sweden and the Netherlands are
briefly discussed.

4.1. The Swedish approach


The Swedish approach can be characterised by an abolitionist or prohibitionist starting
point. On 1 January 1999, Sweden, as the first and so far only country in the world,
introduced a unilateral regulation on the criminalisation of the purchase of sexual
services. It reads as follows:49

A person who obtains casual sexual relations in exchange for payment shall be
sentenced – unless the act is punishable under the Swedish Penal Code - for the
purchase of sexual services a fine or imprisonment for at most six months.
Attempt to purchase sexual services is punishable under Chapter 23 of the
Swedish Penal Code.

The main motive to adopt such legislation was combating prostitution. It was thought
that, through a prohibition, prostitution and its injurious effects could be more effectively
combated. At the moment the law was adopted, the combating of THB was not yet an
argument for criminalising the purchase of sexual services. It is difficult to judge the
effects of this law, but in a report of the Swedish Ministry of Justice and the Police, it was
stated that there are indications that violence against prostitutes, especially against those
prostitutes working on the street, has increased.50 They say that prostitutes are more
frequently exposed to dangerous clients, while the other clients are afraid of being
arrested. Clients no longer provide tip-offs about pimps for fear of being arrested
themselves. Furthermore, it is indicated in that report that prostitution has moved to less
visible and less controllable areas of sexual services.

49
Act on Prohibiting the Purchase of Sexual Services, Swedish Code of Statutes, SFS 1998:408.
50
Purchasing Sexual Services in Sweden and the Netherlands. Legal Regulation and Experiences, Report 8
October 2004, Ministry of Justice and the Police.

17
Difficulties with evidence are the main reason for dropping criminal charges.51 In part it
is difficult to produce evidence that an agreement for payment for sexual relations has
been made and in part it is difficult to produce evidence of the sexual services. Even if
the perpetrator is caught red-handed, it is difficult to convict him, especially when both
parties deny that payment has been made. If a prostitute is not willing to testify, it is
difficult to collect enough evidence. It can be stated that the proposed Article 19 of the
Convention on Action against THB is already incorporated in this approach. The added
value might be that the focus to fight THB will switch to the purchasing of sexual
services of victims of THB.

4.2. The Dutch approach


The Dutch policy on prostitution faced a major change in October 2000 when the new
law on the legalisation of brothels was implemented. Especially in foreign countries, this
policy is often viewed as tolerating the whole sex industry and providing a place where
traffickers can do their work with impunity. The lifting of the ban on brothels in the
Netherlands was seen as a way to subject prostitution to certain rules to better combat
forced prostitution and other evils in the sex industry. If brothels meet certain
requirements, they can apply for a permit from the local government to run the business
legally.52 One of the conditions is that it is not allowed to employ women who do not
have a residence or work permit. Likewise, it is forbidden to employ minors and non-
consenting adults. The responsibility for the administration of rules relating to the
brothels is placed with the municipalities.
One of the aims of this change in policy is to combat THB. Voluntary prostitution as such
has never been illegal or punishable in the Netherlands, but is considered a ‘normal’ form
of labour. Forced prostitution has been a criminal offence since 1911 and still is. The
same counts for the employment of minors in prostitution. With the introduction of this
law, the existing tolerance situation (gedoogbeleid) became legalised. In contrast to the
Swedish approach, the purchasing of sexual services is not a criminal offence, provided
that it does not concern the purchase of sexual services from an underage prostitute.
Negative side-effects are the indications that there is a shift in the activities of the sex
workers from the licensed sector towards the less visible and less controllable forms of
sex work such as escort, bars, and street prostitution. Other problems with the
implementation are the lack of experience of those who check the brothels and the
cooperation required from many organisations, as well as the need to consistently
checking the brothels.53

4.3. Article 19 as a supplement to the Dutch Approach

51
Purchasing Sexual Services in Sweden and the Netherlands. Legal Regulation and Experiences, Report 8
October 2004, Ministry of Justice and the Police, para. 2.2.5.
52
A. Daalder, Het bordeelverbod opgeheven, (WODC, The Hague, 2002) full text in English, pp. 7-8, 17-
27
53
Project Prostitutie Mensenhandel, De Monitor in Perspectief, [Project prostitution and THB] R. Coster,
January 2004, pp. 7-10. Handhaving prostitutiebranche door gemeentelijke diensten: evaluatie van de
preventie, controle en handhavingsactiviteiten van gemeentelijke diensten [Monitoring the prostitution
branch by municipalities]: research commissioned by the Research and Documentation Centre of the Dutch
Ministry of Justice, 2002.

18
In relation to Article 19 of the Council of Europe Convention, it can be stated that the
argument that Article 19 is a reflection of the Swedish approach is too narrow a view. Of
course, there is a similarity in that the purchaser is punishable, but it has to be emphasised
that Article 19 suggests only to punish the person who uses the sexual services of a
victim of THB. This is a major difference and does fit within the Dutch system. The
Dutch system regards THB as a severe crime and a violation of peoples human rights. All
measures that contribute to the prevention of such crimes and the further abuse of victims
should be employed to combat this crime. Penalising those who intentionally make use of
the sexual services of a victim of THB can contribute to that aim.
The difficulty with the punishability of customers is of course that the person knows or
should have known that the person providing the sexual service was a victim of
trafficking. However, with the legalisation of brothels, we have a perfect instrument for
persons to obtain ‘safe sex’ in the sense that they do not run the risk of making use of the
sexual services of a victim of THB, as these legalised brothels are controlled on that
point. Of course, the legalisation must also be extended to other forms of prostitution, for
instance, the escort service, and in a nationally uniform way (i.e., not leaving matters to
the discretion of the municipalities). That may be no obstacle to already start with a
discussion on the feasibility of making those who intentionally make use of the sexual
services of victims of THB punishable, in line with the intention laid down in the Council
of Europe Convention.54
In this way these efforts could be helpful to strengthen the position of victims of
trafficking, which, in our view, is the most important part of a human rights based
approach to THB.

5. State obligations as regards THB

5.1. The legal basis for state obligations


Another instrument to strengthen the position of victims of THB is to focus on State
obligations in this regard. It was argued in section 3.1 that THB is both a cause and a
consequence of human rights violations. Departing from a broad interpretation of the
definition,55 THB is in itself a violation of the human rights of the victim. The (intended)
enforced execution of labour or services, either through deception or through the use of
violence, constitutes at the minimum a violation of the personal integrity, human dignity
and the freedom of movement of the victim. These are rights that are directly or indirectly
guaranteed by several international human rights conventions and generate obligations
for states. Protection against human trafficking, however, is also defined as a human right
itself. In the Charter of Fundamental Rights of the European Union, it is laid down that
‘[t]rafficking in human beings is prohibited.’56 Furthermore, Article 6 of the Convention
on the Elimination of all Forms of Discrimination against Women explicitly states that

54
So far, most politicians in the Netherlands have not been in favour of such a provision and their main
argument is that it is too difficult to control and that the risk is great that prostitution is reallocated to less
controllable places. See, for instance, Parliamentary Proceedings II, 2004/05, 25437, no. 51,
Parliamentary Proceedings II, 2004/05, 28638, no 16. Given the difficulties encountered in Sweden, this
might be a real problem when adopting such a provision.
55
See section 2.2; THB is not only specific conduct for the purpose of exploitation, but also the actual
exploitation itself.
56
Article II-65 of the Treaty Establishing a Constitution for Europe, OJ C 310, 16.12.2004.

19
States Parties ‘shall take all appropriate measures, including legislation, to suppress all
forms of traffic in women and exploitation of prostitution of women.’57 Following these
provisions, it cannot be denied that states have a certain responsibility in the prevention
and suppression of trafficking.58
Several other human rights documents prohibit slavery, servitude, serfdom, forced and
compulsory labour, conditions or situations that are connected to THB through the
definition laid down in Article 3 of the Palermo Protocol.59 In the narrow explanation of
the scope of the trafficking definition, the trading of people for one of these purposes is
considered to be THB. However, the question is to what extent THB may be qualified as
slavery, servitude, serfdom, and forced and compulsory labour. It is relevant to answer
this question for two reasons. First to find out whether state responsibility can also be
established under the human rights documents that prohibit these activities, such as the
Slavery Convention and its Additional Protocol,60 the International Covenant on Civil
and Political Rights,61 and the European Convention on Human Rights.62 In the second
place to determine when THB under the international and broadened definition occurs.
It may be concluded that servitude, serfdom, and forced and compulsory labour are so-
called contemporary forms of slavery.63 Although ‘contemporary forms of slavery’ is a
term that is often used for naming THB and thus a term that appears in international
documents on THB, it is not defined as such.64 Taken from the context in which it is used
and given the definitions of the individual conditions and situations that are considered to
be part of this overall term,65 a proper description of this term would be forms of
employment in which a person is not wholly or partly owned by another person, but
economically or emotionally dependent upon another person. This description clearly

57
UN General Assembly, 18 December 1979 (UN Doc. A/34/46).
58
Also; Recommended Principles and Guidelines on Human Rights and Trafficking of the High
Commissioner on Human Rights, E/2002/68/Add.1 (2002), point 2: States have a responsibility under
international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers
and to assist and protect trafficked persons.
59
Article 3, under a: ‘Exploitation shall include, at a minimum, (…) forced labour or services, slavery or
practices similar to slavery, servitude, (…)’. Also see section 2.2.
60
Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery
Convention of 1926), 60 L.N.T.S. 253, entered into force, March 1927, and Protocol amending the Slavery
Convention, 182 U.N.T.S. 51, entered into force, December 1953.
61
International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,
entered into force, March 1976, UN General Assembly, December 1966.
62
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, ETS no.
5, entered into force, September 1953.
63
C. Rijken, Trafficking in persons. Prosecution from a European Perspective, (Asser Press, 2003), pp. 74
ff.
64
A similar term was introduced in the Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force April 1957. This
Convention lists several institutions and practices under the heading of ‘Practices similar to slavery’,
without giving an overall definition of these practices and institutions.
65
Servitude and serfdom are defined in Article 1(b) as ‘the condition or status of a tenant who is by law,
custom or agreement bound to live and labour on land belonging to another person and to render some
determinate service to such other person, whether for reward or not, and is not free to change his status’
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery, 1957. In Article 2(1) of the ILO Forced Labour Convention (1930) forced or
compulsory labour is ‘all work or service which is exacted from any person under the menace of any
penalty and for which the said person has not offered himself voluntary’.

20
marks the difference between contemporary forms of slavery and the notion of slavery,
which is described as referring to the traditional forms of slavery, being ‘the status or
condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised’.66
THB, in the sense of actual exploitation, is therefore not the same as slavery, but may be
referred to as other institutions or practices mentioned, assembled under the heading of
contemporary forms of slavery or slavery-like practices.67 Violations thus of international
protected human rights. In this respect, the question arises what the implication, in terms
of state obligation, may be of a violation of these rights when THB occurs or is not
adequately fought by a state.

5.1. Scope of State obligations as regards THB


International human rights documents are concluded between state parties and, in
principle, lay down obligations for the state.68 In the context of this article, this means
that the state may not bring people into a situation that may be called a contemporary
form of slavery. Of course, it can occur that a state or a state organ takes part in THB, but
THB is usually committed by private individuals. Apart from the fact that the perpetrator
of a crime may be found liable for harm to the victim of that crime, the question arises
whether the occurrence of THB and thus the fact that human rights have been violated
may also lead to specific obligations of the state in which the trafficking took place. If the
question is answered in the affirmative this would mean positive obligations for a state
for a human rights violation caused by a private individual. The case of Siliadin from the
European Court of Human Rights can be considered leading in this regard.69

5.1.1. The case Siliadin v. France


For years already, it has been established case law of the Strasbourg Court that the
European Convention on Human Rights70 entails not only negative, but also positive
obligations for the state parties to the Convention. According to this principle, state
parties should not only refrain from any action that might conflict with or cause a
violation of the protected rights, but are also obliged to take all measures necessary to
guarantee the undisturbed enjoyment of the rights granted. Earlier these positive
obligations were defined per separate article, but since 2001, it is case law that positive
obligations exist under all substantive provisions of the Convention.71 This therefore also

66
Article1(1) UN Slavery Convention, 1926. In the case of slavery, a victim is thus the legal property of
another person and does no longer have any say about his or her own situation, whereas the victims of
contemporary forms of slavery have not lost, in a legal sense, the authority over their life and thus do not
belong to a ‘master’. Yet, de facto they are partly or completely at the mercy of another person and have no
power to make their own decisions.
67
Van den Anker, ‘Contemporary Slavery, Global Justice and Globalization’, in Ch. van den Anker (ed.)
The political economy of new slavery, (Palgrave Macmillan, 2004), pp. 17-20, 26-27.
68
See for an elaboration on the specific obligations for states in relation to trafficking in human beings
Obokata, ‘A Human Rights Framework to Address Trafficking in Human Beings’, 24 Netherlands
Quarterly of Human Rights 3 (2006), pp. 387-398.
69
ECHR, case no. 73316/01, 26 July 2005, Siliadin v. France.
70
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, ETS no.
5, entered into force, September 1953.
71
ECHR, case no. 41340/98, 41342/98, 41343/98, and 41344/98, 31 July 2001, Refah Partisi et. al., v.
Turkey.

21
goes for Article 4 stating that ‘[n]o one shall be held in slavery or servitude’ and ‘[n]o
one shall be required to perform forced or compulsory labour’. This was for the first time
confirmed in the Siliadin v. France case.
In this case, a Togolese girl came to France as a minor and was put to work in the
housekeeping of a French Togolese family. She had to work long hours, 7 days a week
with virtually no leave. She had to sleep on a mattress on the floor of the children’s
bedroom and was not paid. She was not allowed to go to school, her passport was taken
from her and although promised, her stay was not regularised. Considering the facts and
the circumstances of the case, this would constitute the crime of THB, as internationally
defined. Yet, at that time, the French Criminal Code did not include a specific provision
on THB, so the suspects were prosecuted for a) extracting work from a person by abusing
her vulnerability and dependency and for b) subjecting a person to labour and residence
conditions contrary to human dignity. Although convicted for the crime under a) in first
instance, the accused were acquitted from all charges in appeal. The case was also dealt
with in cassation, but not the criminal aspects of the case. In the end, the accused were
sentenced to pay damages in a civil procedure, but no (criminal) punishment was
imposed. Siliadin then requested the Strasbourg Court to consider the case, stating that
French criminal law did not provide her with an adequate and effective protection against
the servitude to which she had been subjected, or at least against the forced or
compulsory labour that had been exacted from her. In her appeal, she argued that Article
4 of the Convention had been violated.
In line with its earlier case law, the Court considered that the article gave rise to positive
obligations on the states parties, consisting of the adoption and effective implementation
of criminal-law provisions making the practices set out in Article 4 a punishable
offence.72 In more concrete terms, the Court considered that states were under an
obligation to penalise and punish any act aimed at maintaining a person in a situation
incompatible with Article 4. This not only goes for violations resulting from acts of state
(organs), but also from acts of private individuals.
Considering the actual treatment that the Togolese girl had undergone, the Court
concluded that she had been subjected at the least to forced labour within the meaning of
Article 4 of the Convention. Based on the specific circumstances of the case, the Court
furthermore held that she had been held in servitude within the meaning of Article 4.
Following the traditional meaning of the concept of slavery, the Court concluded,
however, that it could not be considered that the girl had been held in slavery.
The Court then held that a violation of Article 4 is a serious violation of the personal
integrity. Since this is a fundamental value, only criminal law can guarantee the effective
and necessary protection by the state against these violations. Because France did not
have adequate criminal legislation that unambiguously made punishable the behaviour at
issue and since the perpetrators of this behaviour had not been convicted, the Court
judged that the state had violated its positive obligations under Article 4. For this
violation, the state may be held liable.
What can be concluded from this case is that the Court emphasised that the increasingly
high standard being required in the area of the protection of human rights and
fundamental liberties correspondingly and inevitably requires greater firmness in

72
R. Haveman and M. Wijers, note to the case of Siliadin v. France, in Rechtspraak Vreemdelingenrecht,
no. 2005/99.

22
assessing breaches of the fundamental values of democratic societies. If a state does not
fulfil this obligation, in the sense that THB (in all its forms) is not adequately forbidden
in criminal law or is not effectively fought, this may lead to state liability when THB is
established. The scope of the state obligation in this respect is not fully clear. What
exactly can be expected from a state in relation to the fight against THB, in order to
conclude that state liability exists when the crime is not adequately addressed? Since the
judgment does not go into the actual prevention of THB, nor into the active prosecution
of this crime,73 this matter is still open to interpretation. It is a matter of time whether the
rights protected in the European Convention and mutatis mutandis, in other human rights
instruments, entail an obligation for the state parties to only an effort to be made, or to a
result to be achieved, with likewise implications for state liability. The judgment in
Siliadin v. France may be seen as an adoption of the latter.
In this respect, it is worthwhile to mention a court order of the Amsterdam Court of
Appeal in a case in which a victim of THB had complained about the decision of the
public prosecutor not to (further) investigate and prosecute a trafficking case mainly on
practical grounds, related to the evidence and the police capacity available.74 The Court
granted the victim’s petition and stated that cases of this gravity, the investigation and
prosecution of which is given priority by the Public Prosecution Service, may not be
dismissed just like that if there is a relevant basis for further investigation. In a kind like
case from 22 November 2005 the Amsterdam Court of Appeal used the same reasons and
added to those that neither lapse of time, nor the circumstance that the persons at issue
perhaps already have been prosecuted for other criminal acts, do alter the fact that
prosecution for THB ought to have taken place.75 When these Court orders are compared
to the ruling of the Strasbourg Court, it may be concluded that the positive obligation of
the state and its organs to prevent the violation of Article 4 of the European Convention
may be rather far-reaching, including the active and/or effective prosecution of this
crime.

6. Conclusion

In this article, an attempt was made to elaborate the human rights based approach to THB
and to shed light on the obligations for states in this regard. With respect to the
background of the crime of THB, it was explained why a human rights based approach is
needed. Without the aim of being exhaustive, we suggested some first steps to the
implementation of such an approach. It can be concluded that much has already been
established in this field and that the mechanisms that have already been used in practice
for several years may/must be used in a human rights based approach. However, it must
be admitted that the basis for these mechanisms is not always logically chosen and may
be an impediment to such an approach. This is most clear when considering the
interwoven relation between criminal law and migration law, for instance, when
decisions in criminal proceedings are decisive for granting a residence permit. The fact

73
See Lawson in his note to the judgement in Jurisprudentie Vreemdelingenrecht no. 2005/425.
74
Court of Appeal Amsterdam, complaints procedure before the civil chamber, 25 October 2005, no.
R04/256.
75
Court of Appeal Amsterdam, complaints procedure before the civil chamber, 22 November 2005, no.
R03/210.

23
that migration law and criminal law are so closely linked does not work to the advantage
of the victim. Therefore, it was proposed to provide victims of THB with a Victim
Assistance and Protection Package (VAPP) which is not made conditional upon
cooperation with the authorities or decisions taken in criminal proceedings. The mere fact
that the human rights of victims of THB are violated in such a grave way justifies a
VAPP. In addition to a VAPP it was analysed to what extend influencing the demand side
of THB on the basis of Article 19 of the Convention on Action against trafficking in
Human Beings and the state obligations based on international human rights documents,
contribute to a human rights based approach to THB. It can be concluded that nowadays
states are not acting in compliance with their international obligations regards THB by
merely criminalising THB. A more active and creative conduct of states is expected in
order to implement a human rights based approach to THB.

24