a) The legal definition of trafficking in human beings

Although various older instruments already dealt with slavery, the slave trade, trafficking in human beings and the exploitation of the prostitution of others, it was not until the Palermo Protocol in 2000 that a legal definition of human trafficking was established internationally.

 

Article 3, Palermo Protocol: 
 (a) The term ‘trafficking in persons’ means the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits (…). Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subsection (a) of this section shall be irrelevant where any of the means set forth in subsection (a) have been used;

(c) The recruitment, transportation, transfer, harboring, or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if it does not involve any of the means set forth in subsection (a) of this section.

(d) “Child” means any person under the age of 18 years.

 

 

→ Article 3(a) defines trafficking in persons according to three constituent elements:

In order for trafficking to be characterized, it is necessary to have the following:

  • 1. an act
  • 2. a means (such as force, coercion, deception, etc.)

It is important to note that the victim’s consent is irrelevant. 

 

Among the list drawn up by the Palermo Protocol and taken up by various instruments, the abuse of a situation of vulnerability may merit further analysis: gender, age, socio-economic conditions are all factors to which may be added the reasons for migration, the routes and the migratory status.

  • 3. an exploitative purpose (prostitution, sexual exploitation, forced labor, slavery, servitude, organ removal). The list of different forms provided by the Palermo Protocol is non-exhaustive.  

Thus, some regional and/or national instruments may have evolved the list to expressly include: forced begging, exploitation of criminal activities (see for example Article 2 of EU Directive 2011/36) or forced marriage (see for example Article 177 bis of the Spanish Criminal Code).

 

When these three elements are present, when one of the means has been used, the victim’s consent is irrelevant. It does not matter whether she consented or not to her exploitation, trafficking in human beings will be characterized.

 

For child victims of trafficking (anyone under the age of 18), the second element (means) is not required under sub paragraph (c):

 

Article 3(c): 

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if it does not involve any of the means set forth in sub paragraph (a) of this article.

 

Human trafficking is often misunderstood. Trafficking in persons is not necessarily transnational or linked to organized crime. Indeed, going beyond the definition of the Protocol to the Convention on Transnational Organized Crime, trafficking can be carried out by a single person and in a national context. 

 

Slavery Convention, 1926, FR | EN | ES

Protocol amending the Slavery Convention, 1926, Text FR p.9 | EN p.5 | ES p.21

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956 Text FR p.45 | EN p. 39 | ES p.67

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See for example: IOM, World Migration Report 2022, Chap. 10, p. 257

 

Article 2 of the Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (Warsaw Convention), FR | EN | ES

Directive 2011/36 of 5 April 2011 on preventing and combating trafficking in human beings and protecting victims

Convention against Trafficking in Persons, Especially Women and Children, 2015, EN

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