Table of Contents
2. What is Trafficking in Human Beings?
3. Scholars’ Debate
3.1. The Single Security Continuum
3.2. The Victim-centered Approach
3.3. Economic Reasoning
4. Approach to Human Trafficking
6. Reference List
“You can only use drugs once. Human beings you can sell many times”
(Italian Coast Guard representative cited in Koff, 2005)
Human trafficking is a business, a business that buys, sells and uses people in order to gain great profits for the traffickers involved. According to Europol (2009), it is a multi million Euro business, which has reached endemic proportions outgrowing even smuggling and the spreading of drugs. Moreover, human trafficking is a crime against the most basic human rights, the right to freedom, liberty and security, as stated in Article 3 of the Universal Declaration of Human Rights (UN, 1948). Effectively, human trafficking is a global phenomenon which claims approximately 2.4 million victims (ILO, 2005). Conservative estimates of the UN suggest that there might be 270.000 human trafficking victims within all of the industrialized countries while the European Union itself estimates that a there are few hundred thousand trafficking victims coming into the EU or are trafficked within the EU each year (UN.GIFT, European Commission, 2009a). Of course, one also has to regard the limitations of these statistics. Unfortunately, the statistics used with reference to trafficking can always only be estimates. Furthermore, these numbers are often collected by different services and organizations which gather them at different times with varying terminologies (Salt, 2000). Nevertheless, ILO and UN.GIFT figures are widely acknowledged and will also be used in this treatise of the topic.
Generally speaking, almost every country in the world has some connection to trafficking in human beings, either as a country of origin, destination or transition. The UN Trafficking in Persons Report (2009) states that Europe is currently also affected in those three ways. Especially the two rounds of enlargement of 2004 and 2007 have contributed to this fact since Central and South-East Europe are the origin of many trafficking victims, who are then sent on to the more western and southern parts of the continent (ibid.). Particularly Bulgaria and Romania, the most recent European Union Member States are “hot spots in terms of the origins of human trafficking victims” (p. 11). 2.000 Romanian trafficking victims were found alone between 2005 and 2007 in 21 European countries, taking into account that these detection numbers resemble only a small scale of the actual figure, since most trafficking victims are not detected. In general, it is estimated that 60% of the victims now come from the Balkans, the former Soviet Union and Central Europe (UNODC, 2010).
All of the above indicates that the European Union is tremendously affected by human trafficking; even more so due to the fact that once a person enters the EU there are no border controls due to the Schengen Conventions which means that traffickers can easily operate in more than one country. Moreover, the enlargement of the EU has created an external border of about 11,000 km, which partly borders on predominant source countries like the West Balkans, Moldova and Belarus (Europol, 2009). Hence, the EU is expected to identify the problem and to address itself to the task of solving it. Confidently, Jacques Barrot (2009), former EU Commissioner for Justice, Freedom and Security, has emphasized that “we want to build an EU that is truly able to protect the most vulnerable citizens against the most terrible crimes”. However, the debate on whether the EU is capable and willing to prevent human trafficking and protect detected victims is lively due to the gravity of the humanitarian problem and the different scholarly angles to look at it.
The EU has been active in the field of preventing human trafficking since the early 1990s, issuing opinions, directives and framework decisions on the topic. However, the Expert Group of the European Commission has issued an opinion in 2010, seventeen years after the first action in this field, which reveals severe shortcomings. Even Jacques Barrot (2008), who, as stated before, had stressed the high moral ambitions of the EU, revealed that the EU and Member States have been dedicated to the problem, but that reality shows significant shortcomings. The Council has passed legislation on human trafficking, and the Commission has worked on new proposals. However, there has been much criticism of how Member States treat victims of human trafficking, who are victims of crime according to the EU Charter of Fundamental Rights but are often not protected properly and instead treated like criminals themselves, according to MEP Ludford (European Policy Centre, 2007). Moreover, there are concerns by scholars like Huysmans (2000) that Member States are drawing the issue of human trafficking into the orbit of national security and discuss human trafficking as a problem alongside illegal migration, drugs and terrorism. Simultaneously, other scholars like Koff (2005) have entered in the debate of seeing human trafficking as an economic phenomenon, which needs to be addressed with more preventive measures.
This paper takes part in the ongoing debate on the capability of the European Union to tackle problems that cross national borders. It investigates the measures taken to combat and prevent human trafficking; a crime that knows no borders (Barrot, 2009). Thus, one has to analyze what the EU as an organization has been up to in the field of preventing and combating human trafficking since it has first addressed the issue in 1993 with several recommendations. Have the states as individuals tended to look at trafficking in human beings more as an issue of national security, have they paid enough attention to the victims, through legislation but also action, and if not, what has prevented appropriate action? Likewise, the dedication to the prevention of human trafficking has to be studied in order to see if the EU and the Member States tackle the underlying problems. Moreover, it will be necessary to contemplate if all of the approaches can effectively be pursued jointly.
In order to be able to use the term human trafficking subsequently, it is important to have a more thorough definition of the term in order to be able to differentiate it from illegal migration and smuggling. Accordingly, the first part of the present paper establishes a firm definition while the second part will look at the aforementioned different scholarly opinions, the securitization of human trafficking, the treatment of victims and human trafficking as an economic phenomenon. Subsequently, in the third part the EU's approach through legislation, aid programs, but also the Member States' conduct will be put into context with the approaches explored in the second part. It will be analyzed in three sections in how far the scholarly debate reflects reality in the EU. Thus, the aspects of securitization, victims’ assistance and prevention through the EU and Member States will be investigated. Lastly, the paper concludes if the scholarly debate that surrounds trafficking is adequate and if the EU and Member States have so far done the best they can to address the problem of human trafficking.
2. What is Trafficking in Human Beings?
Human trafficking or trafficking in human beings is a crime that happens every day all around the globe. To understand where it comes from and who is affected, it is necessary to have a more thorough look at what actually constitutes human trafficking and what distinguishes it from illegal migration. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000), also known as the ‘Palermo Protocol’, was the first official document to give a precise definition of which elements constitute trafficking in human beings. This principal document has been signed by 145 parties since its entry into force in 2003 and is legally binding and globally accepted (UN, 2000). It states that
“'[t]rafficking in persons' shall mean the recruitment, transportation, transfer, harbouring 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 to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, 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” (Art. 3(a)).
In its 2002/629/JHA Council Framework Decision on combating trafficking in human beings, the Council of the European Union has adopted the UN definition, except for the last point of the removal of organs which it omitted due to its focus on women and children. However, this point has been included in the new 2011/36/EU Directive. Even though the UN protocol does not give further definitions of what constitutes exploitation, slavery or servitude, these concepts have been described and defined more thoroughly elsewhere, e.g. the International Labour Organisation (ILO) Convention of 1930 (No. 29), the European Convention on Human Rights by the Council of Europe (1950) or the 1926 Slavery Convention (OHCHR).
Evidently, human trafficking is different from illegal migration or human smuggling. Whereas smuggling can be seen as a business transaction between a willing migrant and another person who possesses the means to transport the migrant across a border (Foreign Affairs and International Trade Canada, 2011), human traffickers use people as commodities who can be bought and sold without their consent (Council of the European Union, 2009). Further, the act of illegal migration or human smuggling necessarily involves the crossing of a physical border while human trafficking can also occur within the borders of one country (European Commission, 2004). Even though these theoretical distinctions exist, it is often difficult to tell at first sight whether a person is trafficked or smuggled, since a smuggled migrant can easily turn into a trafficking victim. Moreover, trafficking victims often lose their independence due to the fact that the traffickers trick them into handing over their passports or any other legal document they possess (Koff, 2005). To be in possession of these documents facilitates the traffickers' desire to gain economic profit out of the victims by forcing them to work until they have repaid their 'debt' to the traffickers, which they have allegedly accumulated during the transport, for housing or working tools (Andrees, 2008). Next to withholding the victims' documents, physical and psychological threats are also used. Often, family members are threatened and the victims are kept in check by withdrawing wages, locking them up, regular beatings and rape (U.S. Department of State, 2009). Now that human trafficking has been defined, the paper will take a closer look at the scholarly debate that surrounds it.
3. Scholars’ Debate
Currently, there are three main approaches in academic literature concerning how to view human trafficking which mirrors the complexity of the problem. First, there is the claim, that human trafficking is put into the context of a single security continuum, which means that it is often talked about in connection with other crimes, like drugs and terrorism. The issue of human trafficking is moved into a certain area, where the use of any means to prevent from this imminent threat is permitted (Wæver, 1996). This discourse takes place with reference to the state level, discussing trafficking as a collective incidence. Huysmans (2000) argues that a connection between “borders, terrorism, crime and migration” (p. 761) has been established by using the security continuum, i.e. transferring security connotations of fields like drug trafficking and terrorism to the field of migration. Second, there is the idea that human trafficking should be dealt with on a more victim centered approach, thus on a more individual level, which means a humane treatment that guarantees physical and psychological care and shelter. This humanitarian approach, e.g. used by Kelly (2005) and Malpani (2006), is contrary to the securitarian approach described above, where people are rather seen as a threat. Third, it is argued that human trafficking has to be viewed as an economic phenomenon that occurs because of income disparities as Koff (2005) points out. With reference to the different approaches, the Expert Group of the European Commission (2004) states that there are different solutions to the problem of human trafficking, depending on if it is viewed as a human rights problem or an issue of organized crime and illegal migration. Thus, it needs to be further investigated what is proposed in the literature.
3.1. The Single Security Continuum
While most scholars only implicitly include human trafficking in the security continuum under the umbrella of illegal migration, the European Security Strategy (2003) does it very openly. This document was drafted under the authority of Javier Solana, former High Representative for Common Foreign and Security Policy, and amongst other things discusses the key threats to the European Union. It suggests that organized crime is one of the pivotal dangers and that “[t]his internal threat to our security has an important external dimension: cross-border trafficking in drugs, women, illegal migrants and weapons accounts for a large part of the activities of criminal gangs. It can have links with terrorism” (p. 4). Likewise, the Commission's Expert Group (2004) claims that states are more likely to concentrate on the element of transport and movement when defining trafficking and have thus established more restrictions on immigration and stricter border controls. This shows that the security continuum helps set up structures which are used to define migration policies and identify the threats towards the European Union (Huysmans, 2000). Chou (2008) consistently claims that the EU approach is securitarian, which leads to the EU being incapable of addressing the subjacent reasons for human trafficking.
Huysmans (2000) additionally points out that migrants and implicitly also trafficked persons are seen as a threat to the welfare system, which they could possibly make use of after their detection. The idea of the welfare system solely belonging to the nationals and not to the outsiders also plays into the idea of national belonging and the need for securing the nation's borders. In order to ensure safer borders, there is the need for greater expenses in the sector of border controls, which some member states of the EU can hardly afford (Appleyard and Salt, 2000). This approach consequently leads to the exclusion and marginalization of non-members, a new Iron Curtain so to speak (Saari, 2006; Malpani, 2006). Moreover some scholars claim that border controls actually are a direct cause of human trafficking and make it more attractive for organized crime groups to get involved (Bort, 2002; van Liemt, 2004).
In order to remove human trafficking from the context of the security continuum the Expert Group of the Commission (2004) proposed that the European Council issues clearer statements that ensure that human trafficking is much more an issue of human rights violations and a crime against humanity than an issue of illegal migration. Further, this should point to the fact that in their view the EU commits to an approach based more on human rights.
Closing the borders and preventing immigrants to enter of course brings certain advantages, namely that the EU and the individual states do not have to deal with trafficked victims on their territory. Moreover, the discourse can be used to benefit policies in other areas, such as drugs and terrorism. However, the problem that arises is that the root of the phenomenon is not tackled and that victims that do enter the EU are treated as criminals. The victim-centered approach tries to prevent this and takes human trafficking from a threat to states to the individual level and the suffering of the victims.
3.2. The Victim-centered Approach
How the EU and its Member States deal with the victims of human trafficking is very much a point of criticism in the current scholarly debate, involving authors like Malpani (2006), Kelly (2005) and Saari (2006). Even though the Expert Group of the Commission (2004) points out that assisting the victims with social protection and assistance and offering them the possibilities to start a new life away from forced labor is important from a human rights perspective, it is also very valuable as a starting point for “not only a human rights obligation, but […] is also of strategic value as a starting point for the collection of evidence in the trial against the perpetrator” (p. 119), it seems that the reality of trafficking victims is different.
According to Malpani (2006), it is difficult for most trafficking victims to exercise their adjudicated rights in light of overeager application of immigration laws and a large group might not even know of their rights to receive assistance. Moreover, a lot of countries seem too eager to get victims to cooperate with the police, without considering the appropriate reflection period, which describes the time that victims have in order to decide whether they want to cooperate with the police or not. This last point is especially criticized by Saari (2006) who attributes the unwillingness of many of the victims to cooperate to the failure of European policies to give a minimum standard of aid and protection. Baroness Ludford, a Liberal Democrat Member of the European Parliament (MEP), suggests that this failure of European policies is caused by the fear that once protection is given, victims will try to put forwards claims for legal status, or put otherwise, that there will be a “flood of willing victims” (Saari, 2006, p. 19; European Policy Centre, 2007).
Generally, trafficking victims are in a very precarious situation once they have been found. Often, they are treated as criminals, especially due to the fact that their forced conduct of living often contravenes national laws, e.g. prostitution, and thus includes a breach of law (Expert Group of the European Commission, 2004). The stigmatization that goes along with social marginalization leads to a vicious circle that effects especially women and often triggers rejection by their own families. Hence, they lose their support system which may lead to a renewed path into the process of trafficking (Morrison & Crosland, 2001). Additionally, the fact that they are often without any form of identification and are in need of medical and psychological consultation furthers their problems of a new start if sent back immediately to their country of origin.
Kelly (2005) gives a more detailed account of the situation that trafficking victims in Europe face after their detection. According to her, countries of destination are mostly concerned with repatriation and national governments in the countries of origin, e.g. Moldova, Albania and Romania, which is now an EU Member State, are only marginally involved in set-up of shelters and protection programs. The systemic failure, namely the fact that each country only look at its own situation without considering long-term goals described here, is also picked up by the Expert Group of the Commission (2004) who stresses that most measures, if existent, are only short-term and “do not provide sustainable social and economic alternatives” (p. 115).
The victim-centered approach adheres to the humanitarian aspirations of the EU and the advantages of granting psychological and judicial assistance to victims seem obvious. Additionally, victims that feel protected and safe might be more willing to cooperate with the police and thus help the judiciary (UN High Commissioner for Refugees, 2010). However, it naturally costs money and resources to care for these people. Moreover, there is the danger of abuse of this aid by people who are not trafficking victims but might need assistance for other reasons not covered by the measures. One should note that the security approach is constantly in progress while the victim-centered approach treats human trafficking in hindsight and the next approach, the economic one, leans more towards preventive measures.
3.3. Economic Reasoning
Several authors, e.g. van Liemt (2004), Koff (2005) and Andrees (2008) point out that human trafficking is largely an economic phenomenon. Koff (2005) claims that human trafficking is an effect of the income gap that exists between the industrial and developing countries, which has created plenty of cheap labor. Likewise, Andrees (2008) agrees with this view and suggests that the general poverty and individual poverty of people in countries of origin is causally related to the people’s susceptibility to trafficking, which can also be roughly identified in Table 1 below.
 Europol does not provide figures on the extent of trafficking, due to the lack of data.