by Tya Gitanjali Raikundalia

(a) Introduction

It is widely assumed that slavery is a vestige of the past.^[1]  Despite abolition’s legacy, slavery endures around the globe, albeit in somewhat different guises.^[2] For decades, modern slavery has posed a threat as one of the largest hidden crimes on the globe, despite countless regional and domestic laws and mechanisms, such as treaties and covenants, being established. I will lay out a fictious scenario which will lay out the facts of a human trafficking case that could reasonably happen at any time to any woman today.  I’ll compare this case to real case law, to explain how countries have reacted to a similar set of facts.  This will show how international human trafficking law is still focused on absolving countries of responsibility instead of supporting victims of this horrific crime.  A proposed solution would be to enforce the application of international mechanisms and instruments which contain precise definitions and details tailored to specific problems within human trafficking.  This therefore would allow States to have a standard against which to apply the law, to ensure there are more chances for victims to gain justice, rather than the focus being centred on the specifics of the law.

(b) Scenario

Anna is a young woman from Albania.  She agreed to go to the UK and work for Barry, another Albanian, as a waitress. On arrival, Barry retained Anna’s passport, saying it was needed for “visa purposes”.  Instead of commencing waitress work like Anna expected, Barry forced Anna to carry out unpaid domestic tasks in his house.  Barry told Anna that she would be subjected to violence if she tried to tell the police, or that she would be jailed for being an illegal immigrant because she had no passport to show.  As a result, Anna worked several years unpaid for Barry before revealing her situation to her neighbour.  The neighbour consequently informed the police, which lead to Barry being arrested for forcing someone into domestic servitude and human trafficking.

(c) Analysis

This will be broken down into four parts: (i) defining human trafficking, (ii) the issue of forced labour and Anna’s living conditions, (iii) jurisdiction and public interest, and finally (iv) the approach of police investigation.

The Definition of Human Trafficking

People, […] do not know how to define trafficking^[3].  Part of this confusion may be due to legal or cultural differences.^[4]  The scenario states that Anna consented to travelling to the UK because she thought she would start a waitressing job there.  A similar set of facts occurred in Rantsev v Cyprus and Russia^[5].  The case concerned a young woman who consented to go to Cyprus to work in a cabaret but was unaware that she would be compelled to prostitute herself^[6].  The fact that Rantsev consented to travelling to Cyprus was a key point of deliberation when deciding if she had been trafficked or not.  The European Court of Human Rights (ECtHR) had stated that:

“The court considers that trafficking in human beings, by its very nature, and aim of exploitation, is based on the exercise of powers attaching to the rights of ownership.  It treats human beings as commodities to be sold and put into forced labour”^[7]

Following from this, it can be argued that the ECtHR only established a broad outline about what trafficking was.  Despite holding that human trafficking was indeed a violation of Article 4 of the European Convention on Human Rights (“the ECHR”), no actual definition of human trafficking was created that could be applied in other cases from the European Sphere.  This is particularly important because the ECtHR abandoned the use of Siliadin v France^[8] when making their decision because the approach to human trafficking was too narrow.  This case also concerned a young woman who went to France thinking she would get a job but was instead forced into domestic servitude. Siliadin was considered a landmark case due to the fact that it was the only judgement of the European Court to fully address a claim based exclusively on Article 4 in the context of contemporary forms of slavery at the time of writing.^[9] Siliadin focused on the “genuine right of legal ownership”^[10] and did not consider the matter of consenting to travel, meaning that the definition of human trafficking amongst the two cases was vastly different.  The concept of “right to ownership” does not seem relevant to the case at hand, therefore it can be asked why it was initially deemed relevant in Rantsev.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“the UN Trafficking Protocol”) is a legally binding instrument that defined human trafficking in Article 3 as:

“The recruitment, transportation, transfer, harbouring or receipt of any persons by any means […] coercion […] to achieve the consent of a person having control over another person, for the purpose of exploitation”^[11]

It could be contended that the definition provided in the Treaty could easily be applied to our scenario.  Barry recruited Anna and coerced her into a position of exploitation through threats of violence and imprisonment.  This coercion resulted in Barry establishing control over Anna.  With consenting to travel, Anna consented to a false situation because she was instead exploited on arrival.

If this definition was applied to cases such as Rantsev and Siliadin, domestic courts could establish the existence of trafficking much faster without the need to escalate to international courts. This could have meant the perpetrators were prosecuted domestically and the victims receive support and justice for the trials and tribulations they suffered at the hands of their traffickers.  The current view of the law is that it seems to be more focused on absolution of State’s liability, due to the fact that basic rights are not being analysed, but details such as the “genuine right of legal ownership” were being considered at great length instead.  A solution to make the domestic approach more victim-focused would be to draw definitions from international human rights mechanisms such as the UN Trafficking Protocol. This is because they create detailed explanations dedicated to topics such as trafficking to ensure that there is no ambiguity when establishing it in practice.  This would also mean that it would be harder to move women between borders and coerce them into situations like this.

i) Forced Labour and Living Conditions

Article 4 of the ECHR states:

“(1) No one shall be held in slavery or servitude

(2) No one shall be required to perform forced or compulsory labour”^[12]

A similar statement can be found in the Universal Declaration of Human Rights (“The UDHR”) which reads:

“No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”^[13]

Both of these instruments are legally binding.  If the scenario were a real case, it would have been argued that both statements were applicable to Anna’s situation, and that she was being held in domestic servitude by Barry.

However, it can be contended that a significant factor to consider when determining if someone is being held in domestic servitude is their living conditions. J and others V Austria^[14] and Siliadin were seen to have differing approaches to this factor.  In Austria, the women were forced to work between the hours of 5am and midnight, without a single day off; they were not allowed to speak to anyone in their mother tongue; were forced to cook and clean and look after children, and were fed scraps from dinner, instead of full meals. For some of the victims, this treatment lasted several years, including severe punishment for not following orders or refusing to do the work asked.  In Siliadan, the victim was forced to sleep on a mattress in a baby’s room, who she had to care for, and she was not allowed out the house or allowed to talk to anyone.   The common theme for both cases was that the women feared reaching out to positions of authority because they were deemed illegal immigrants, a factor that is commonly seen in these sorts of cases.  Even though their circumstances are inhumane and degrading, there is always the presence of a fear of punishment or deportation due to their status in the country that they are trafficked to.

It was finally held that the victim in Siliadin was being held in domestic servitude after the approach to living conditions changed.  The relevance stems from the fact that determining the existence of domestic servitude contributed to the decision of whether there was a violation of Article 4 of the ECHR or not.  The Tribunal de Grande Instance de Paris^[15] claimed that the victim’s living conditions did not infringe human dignity and therefore was not being held in domestic servitude.  Living conditions were said to infringe dignity when they were unheated and unhygienic, providing no way to look after oneself^[16].  The ECtHR ended up overturning the previous decision and holding that an individual’s denial of freedom extended to his or her living conditions^[17], therefore finding a violation of Article 4.

On the other hand, Austria held that the existence of bad living or working conditions, or the violation of labour law in the host country, is certainly a strong element indicative of a situation of exploitation.^[18]  The ECtHR explained the significance of living conditions in determining the existence of domestic servitude.

If the approach of the ECtHR in Siliadin, regarding denial of freedom, was considered alongside Article 25 of the UDHR which reads:

“(1) Everyone has the right to a standard of living adequate for the health and well-being of himself […] including food, clothing, housing and medical care”^[19],

then it could be argued that there could be a standard for domestic laws to abide to.  This standard would allow domestic law to be more victim-focused; because, again, it can be said that the fact that cases are going to international courts to define things such as living conditions means that domestic law is more State-centred and focused on self-interest.

ii) Jurisdiction and Public Interest

The Palermo Protocol can be referred to regarding jurisdiction as it states:

“Article 31 § 1 deals with jurisdiction and requires States to adopt such legislative and other measure as may be necessary to establish jurisdiction over any offence established in accordance with the Anti-Trafficking Convention when the offence is committed:

(a) In its territory”^[20]

This means that the Protocol imposes an obligation on states to create legislation that prosecutes those who commit offences within their borders, regardless of nationality.  Though not legally binding, General Comment No. 31 stated that the enjoyment of covenant rights is not limited to citizens of State Parties but must be available to all individuals, regardless of nationality.^[21]  This comment could be considered more by domestic law makers because it is very victim-focused, since it encourages enjoyment of rights without being concerned by factors such a nationality.

Coming back to our scenario, applying the Palermo Protocol would mean that the United Kingdom needs adequate legislation to prosecute human trafficking, regardless of features such as nationality.   In this case, the UK does have the Modern Slavery Act 2015.^[22]Section 2 states that:

“(1) A person commits a crime if the person arranges to facilitate the travel of another person (V) with the view to V being exploited”^[23]

Prosecution of non-citizens could be seen as a potential issue since it posed a large problem in the recent case of Austria. This is because initial domestic prosecution was dismissed: the public prosecutor was of the view that the offence had been committed abroad by non-nationals and did not engage with Austrian interests.^[24]

However, the domestic law of the UK has prepared for cases of non-nationals committing this offence, as the Modern Slavery Act states that:

“(6) A person who is a UK national commits an offence under this section regardless of-

(a)  Where the arranging of facilitating takes place

(b) Where the travel takes place^[25]

(7) A person who is not a UK national commits an offence under this section if-

(a)  Any part of the arranging or facilitating takes place in the United Kingdom, or

(b) The travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom” ^[26]

This could be seen as a reasonable and appropriate application of the Palermo Protocol since there is legislation that prohibits activities such as human trafficking.  This approach can be compared to the ones taken in Austriawhere the self-interest of Austria was prioritised.  This prioritisation could be seen through the fact that the initial investigation and prosecution was abandoned because the perpetrators were not nationals.

Therefore, with regards to jurisdiction, the UK shows a more victim-focused approach as the central aim is to prosecute those who commit the offence of human trafficking.  The mens rea is more important than the fine details of the actus reus.  Thus, it can be said that the UK effectively conceded to the obligations imposed by the Palermo Protocol.  In the case of our scenario, it can be confirmed that Barry would be actively prosecuted as the act of trafficking had been committed, and established legislation exists to allow prosecution.

by Tya Gitanjali Raikundalia

Photo credits: Flickr, Human Trafficking protest, Human Trafficking protest, NYC, Flickr

[1] David K. Androff, ‘The Problem of contemporary slavery: An international human rights challenge for social work’ [2010] 54(2) International Social Work, 209-210

[2] Ibid, p210

[3] Cindy J Smith and Kristiina Kangaspunta, ‘Defining Human Trafficking and Its Nuances in a Cultural Context’ in John Winterdyk, Benjamin Perrin and Philip Reichel (eds), Human Trafficking: Exploring the International Nature, Concerns and Complexities) [Taylor & Francis Group 2012]

[4] Ibid

[5] Rantsev v Cyprus and Russia (25965/04) [2010] 1 WLUK 30

[6] Donald Shaver and Leo Zwaak, ‘Rantsev v. Cyprus and Russia: Procedural obligations of third-party countries in human trafficking under Article 4 ECHR’ [2011] 4 Int. Am. And Eur. Hum. Rts. J. 118

[7] Rantsev v Cyprus and Russia (25965/04) [2010] 1 WLUK 30, p281

[8] Siliadin v France (73316/01) {2005] 7 WLUK 810

[9] Andrea Nicholson, ‘Reflections on Siliadin v France: Slavery and Legal Definition’ [2010] 14 International Journal of Human Rights 5, p706

[10] Siddarth Kara, ‘Designing more effective laws against human trafficking’ [2011] 9 Nw. U. j. Int’l. Hum. Rts. 123, p125

[11] The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children

[12] The European Convention on Human Rights, Article 4

[13] Universal Declaration of Human Rights, Article 25

[14] J and Others v Austria (58216/12) [2017] ECHR 17

[15] Also known as the High Court of Paris, it is the court that deals with cases such as crimes against humanity and war crimes.

[16] Siliadin v France (7316/01) [2005] 7 WLUK 810, p27

[17] Ibid, p104

[18] Ibid 11, Part II, Section C, p20

[19] Universal Declaration on Human Rights, Article 25

[20]Palermo Protocol, Article 31, §1

[21]General Comment No 31.

[22] Modern Slavery Act 2015

[23] Ibid, S2

[24] J and Others v Austria, p27

[25] Modern Slavery Act 2015, S6

[26] Ibid, S7