The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children or Palermo Protocol arises in response to the need to structure actions to prevent and fight against human trafficking.
The definition is broken down into three lists of elements: criminal acts, the means used to commit those acts, and the forms of exploitation. While the new definition is crucial to an international response to trafficking in persons, it is important to remember that it is not an exhaustive definition, and that the Convention and Protocols are limited in scope. The Protocol is intended to “prevent and combat” trafficking in persons and facilitate international co-operation against such trafficking. It applies to the“prevention, investigation and prosecution” of Protocol offences, but only where these are “trans-national in nature”and involve an “organized criminal group”, as those terms are defined by the Convention. The Convention, Protocol, and the definition of trafficking in persons they put forward are essential to the fight against this crime, but they are not, and should not be, the only tools available.
All countries must attack this problem from a criminological standpoint, and be willing to address trafficking in any and every form it takes.
Some trafficking in persons will not cross national borders, at other times it will be carried by individual criminals who are not part of an “organizad criminal group”.
National laws, law enforcement strategies, and services to victims must respond to all forms of this crime, from small-scale and local trafficking to large-scale trans-national trafficking.
The Protocol covers the following:
- defining the crime of trafficking in human beings; essentially, trafficking of person refers as the recruitment of person from their origin community to another community through the use of force or other means for the purpose of exploitation. So trafficking in person shall recruitment by means of coercion, deception, or consent for the purpose of exploitation such as forced or consensual labor or prostitution:
- “Trafficking 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… The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of the means set forth [above] have been used.
- facilitating the return and acceptance of children who have been victims of cross-border trafficking, with due regard to their safety;
- prohibiting the trafficking of children (which is defined as being a person under 18 years of age) for purposes of commercial sexual exploitation of children (CSEC), exploitative labour practices or the removal of body parts;
- suspending parental rights of parents, caregivers or any other persons who have parental rights in respect of a child should they be found to have trafficked a child;
- ensuring that definitions of trafficking reflect the need for special safeguards and care for children, including appropriate legal protection;
- ensuring that trafficked persons are not punished for any offences or activities related to their having been trafficked, such as prostitution and immigration violations;
- ensuring that victims of trafficking are protected from deportation or return where there are reasonable grounds to suspect that such return would represent a significant security risk to the trafficked person or their family;
- considering temporary or permanent residence in countries of transit or destination for trafficking victims in exchange for testimony against alleged traffickers, or on humanitarian and compassionate grounds;
- providing for proportional criminal penalties to be applied to persons found guilty of trafficking in aggravating circumstances, including offences involving trafficking in children or offences committed or involving complicity by state officials; and,
- providing for the confiscation of the instruments and proceeds of trafficking and related offences to be used for the benefit of trafficked persons.
The Convention and the Protocol obligate ratifying states to introduce national trafficking legislation.