When commentators point to the decline in organized crime`s involvement in human trafficking and migrant smuggling, they are actually showing a departure from what UNTOC and its protocols should be doing. This example and the examples above are not evidence of a flawed framework, but of our imperfect understanding and application. This change in scope must be corrected if we are to avoid using international law as a weapon against the wrong people. A serious criminal reaction should never apply to an unfortunate motorist driving an irregular migrant across a border. Criminal justice responses are rarely useful when they target desperately poor families with children in domestic servitude, or in places where early marriage is a deep-rooted cultural practice. Similarly, the merging of poor working conditions with the serious crime of trafficking in human beings excludes the possibility of using international labour standards as a framework for redress. Of course, one will always wonder what is meant by “transnational” or whether States that define the term “organized criminal group” more broadly than the CTO Convention fall short of or exceed minimum standards. But these discussions could save us from the ones we are currently having about what human trafficking means alongside labour exploitation, forced labour and “modern slavery”, or whether an NGO worker receives material benefits by saving the life of a migrant at sea. It may be too late to reverse the change in scope that has taken place. Those seeking a political currency against irregular migration are unlikely to observe a clear legal framework.
And for organizations and activists competing for funding, the language of “human trafficking” is too powerful a rallying cry to give up easily. But if we care about the letter and spirit of international law, if we really want to avoid duplication and if we really want to make efficient use of resources in the crowded area of combating trafficking in human beings and trafficking in human beings, then we need to start talking about Article 4. UNTOC and its protocols are called the Palermo Protocols for the city where they were opened for signature twenty years ago. Palermo, the cradle of the Sicilian mafia, was not chosen arbitrarily. It was a tip of the hat against cross-border organized crime, against which the international community wanted to use international law. We must remember this legacy and recover it. Even those who deal intensively with these issues may find it difficult to remember the “scope” of these instruments. Article 4 of both protocols specifies that they apply when the trafficking or smuggling offences in question are “transnational in nature and involve an organized criminal group”. But we have not asked for a long time what this means in practice. An earlier draft protocol on combating trafficking in human beings proposed limiting the scope to “international” trafficking in human beings.
And before the scope received its own paper, the authors discussed alternatives such as inclusion in the CTO`s statement of objectives or a “severity test” in combination with an “organized nature test.” They also considered providing an exhaustive or exemplary list of offences. This story speaks to the role that Article 4 should play in the eyes of the authors. The scope has been included to keep an eye on the ball: cross-border organised crime. Critics often say that international law against human trafficking and migrant smuggling has failed. But perhaps we will fail. A serious criminal reaction should never apply to an unfortunate motorist driving an irregular migrant across a border. And a fishing boat that brings rescued migrants in distress to a safe place is a matter of maritime, migration and humanitarian law, not law against organized crime. The current debate on the “financial or material benefit” element of smuggling could be spared if it is recalled that article 4 places the actions of humanitarian actors and migrants themselves outside the scope of the protocol on the smuggling of migrants. International law surrounding human trafficking and smuggling of migrants is often criticized. Academics and legal experts have pointed out that the definitions used in the Trafficking in Persons and Smuggling of Migrants Protocols, which complement the United Nations Convention against Transnational Organized Crime (UNTOC), obscure rather than clarify.
They listed the unintended consequences of the criminal approach of these instruments and stressed the ineffectiveness of the international cooperation adopted in these instruments. The persistent contempt for art. 4 is, in my view, one of the reasons why the definitions of `trafficking in human beings` and `smuggling of migrants` remain controversial. It also fuels conceptual challenges that thwart the response, including “rampant exploitation” that dilutes the serious crime of trafficking that perpetrators have overlooked into simple exploitation. This has allowed the coined term “modern slavery” to further obscure our understanding and throw away the web of concerns so broad that we no longer know what we are talking about when we talk about human trafficking. It allowed recruiters, ladies and lower-ranking brokers to be prosecuted instead of the traffickers above them. And that has contributed to competition for funding. A good-faith interpretation of international law should, depending on the circumstances, lead some actors to interfere while others withdraw.