man beings was exclusively seen as prostitution and/or as a
form of sexual exploitation; early existing legal instruments
focused on ‘the Traffic in Women in Full Age’.35
In 2000, the UN adopted a Convention against Transnational Organized Crime supplemented by three protocols36.
One of these protocols is the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and
Children (hereinafter referred to as “Palermo Protocol”),
which contains the definition. Additionally, it requires from
States parties to criminalize trafficking in human beings
and to include this criminal offence in the national legislation. The Palermo Protocol contains regulations concerning
the assistance to trafficked persons and requires that the
return of a victim needs to be with due regard of the victim
and preferably be voluntary. At the same time, the Palermo
Protocol requires that States Parties ensure the possibility
for trafficked persons to obtain compensation for the damage suffered.
Five years later the Council of Europe also adopted a Convention on Action against Trafficking in Human Beings
(CoE Convention).37 This convention aims at “improving
the protection […] and developing the standards established” 38 by the Palermo Protocol. The Palermo Protocol
uses rather ‘weak’ language regarding victims’ rights such
as for example that only ‘in appropriate cases’ and to the
‘extent possible’ the privacy and identity of the victim should
be protected or that States should ‘consider’ implementing
measures of physical and psychological recovery (Art. 6).
The CoE Convention goes further and obliges States to assist victims by various means (see for instance Art. 12) such
as counselling, interpretation and information. Besides
International Convention for the Suppression of the
Traffic in Women of Full Age
Trafficking of Human
Beings from a Human Rights Perspective
Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others
The International Law of Human Trafficking
United Nations Convention against Transnational
Organized Crime
United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention against
Transnational Organized Crime
Protocol against the Smuggling of Migrants
by Land, Sea and Air, Supplementing the United Nations Convention against
Transnational Organized Crime
Protocol
against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and
Components and Ammunition supplementing the United Nations Convention
against Transnational Organized Crime
Convention on Action against Trafficking in
Human Beings
strengthening the position of trafficked persons compared
to the status in the Palermo Protocol, the CoE Convention
applies the same definition as given in the Palermo Protocol. In case of return of the victim to the country of origin, the CoE Convention requires to take into account the
rights, safety and dignity of the person and also points out
that the return shall preferably be voluntary. Concerning
compensation, the CoE Convention explains in more detail
how the right to compensation should be established and
suggests the establishment of a fund for victim compensation (Art. 15).
At the level of the European Union three main instruments
are relevant concerning trafficking in human beings.
The Directive on preventing and combating trafficking in
human beings and protecting its victims39 is based on the
definition of trafficking in human beings as given in the
Palermo Protocol, but also includes next to other forms of
exploitation the possibility to be exploited through begging.
This directive aims at improving the protection of victims’
rights. States have to ensure that victims of trafficking cannot be prosecuted for their involvement in criminal activities linked to trafficking in human beings. Article 11 describes the required assistance and support for victims of
trafficking in human beings and foresees that the assistance
and support are provided to victims “before, during and for
an appropriate period of time after the conclusion of criminal proceedings” 40 which is therefore not strictly linked to
the length of criminal proceedings anymore. This might be
important in cases in which the victim’s safety is at risk after
the end of criminal proceedings due to statements during
the proceedings. The directive strengthens the protection
of children’s rights and requires explicitly the consideration
of the child’s best interest when providing trafficked children with assistance. Children should have access to free
legal counselling and to free legal representation, also for
claiming compensation. In general, the directive foresees
that access to existing schemes of compensation should be
ensured also for victims of trafficking (Art. 17) and calls
upon the States to implement measures for seizure and confiscation of proceeds from the trafficking process (Art. 7).
Issues concerning residence of victims of trafficking are
partly regulated in the Directive on the residence permit
issued to third-country nationals who are victims of trafficking in human beings41. A residence permit for at least
Directive 2011/36/EU of the European Parliament
and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework
Decision 2002/629/JHA
41
Council Directive 2004/81/EC of 29 April 2004
17
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