Nicole Siller

Forces of globalisation enable an ever increasing market for the commodification of human beings. In an effort to combat such actions, domestic, regional and international legal systems have outlawed trafficking in persons and various forms of human exploitation. Freedom from trafficking and such practices including slavery, servitude and forced or compulsory labour have also been codified in every human rights instrument across the globe establishing national obligations to investigate alleged abuses and prosecute offenders. And while there is a plethora of scholarship claiming various inadequacies pertaining to these laws and their use in practice, an academic and practical outlet focused on the laws of trafficking and human exploitation has yet to manifest. The Journal of Trafficking and Human Exploitation (JHTE) will aim to fill this gap and serve as the premier forum to discuss and debate the legal and policy issues involving prevention, intervention, investigations, prosecution, individual, state and corporate responsibility, and the actual codified offenses, their application in practice, subsequent judicial interpretation and any ramifications emanating therefrom. As the mass perpetration of trafficking and human exploitation only appears to continue, the need to research, understand and clarify these laws and their use in practice is paramount. This journal seeks high quality submissions reflecting a diverse range of perspectives addressing domestic, regional, international and comparative legal issues. The core submissions are intended from the following legal realms: • Criminal law • Human rights law • International law • Labour law • Migration and asylum law Addressing the substantive laws and jurisprudence involving human exploitation is an underexplored realm in need of attention and analysis. These include, but are not limited to: • Slavery • Servitude • Forced and compulsory labour • Sexual exploitation • Recruitment and use of child soldiers • Forced and early marriage • Organ trafficking The JTHE is primarily concerned with publishing high quality legal articles and significant case notes from domestic, regional and international jurisdictions. However, this journal will also consider interdisciplinary submissions and book reviews.

Although distinct legal definitions exist, rhetoric concerning slavery and enslavement is consistently intertwined with human trafficking. These concepts, along with many other exploitative practices are often collectively labelled: ‘modern slavery’ or some variation thereof. This term enjoys no utility under international law but is nevertheless heavily used in discourse. Beginning with a legal analysis regarding what constitutes slavery, enslavement and trafficking, respectively, this article endeavours to clarify these crimes as codified under international law. Thereafter, a textual analysis of relevant enslavement judgments follows in an attempt to identify the manifestation of any entangled legal discourse between these concepts. It ultimately leads to question whether these crimes are in fact distinguishable considering international jurisprudence on the matter; or, whether enslavement as a crime against humanity has already incorporated the law of trafficking within its construct.



citation: (2016) 14(2) Journal of International Criminal Justice 405-427.

Despite its international construction and codification, the criminal offense of ‘trafficking in persons’ is absent from the statutes of international judicial institutions. Does this result in the inability to hold those who engage in the traffic of human beings accountable under international criminal law? While certain offenders are charged with the international crime against humanity of enslavement, it appears as though the establishment of their guilt often materialised (at least in part), on the converging characteristics of ‘trafficking in persons’ as codified in the Palermo Protocol and enslavement. Can this course of action survive, or should our present international judicial forums recognise ‘trafficking in persons’ as a separately codified offense and crime against humanity?

Citation: 2 (3) European Journal of Comparative Law and Governance 236-261 (2015).

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

Co-author: Caroline Fournet

Citation: 15 (5) International Criminal Law Review 896-925 (2015).

Research project sponsored by United Nations University, Journal of International Criminal Justice, The Freedom Fund and the Permanent Mission of Lichtenstein to the United Nations

My contribution essentially questions whether a material difference exists between human trafficking and slavery. And more importantly, does it matter?

Proliferation of international protections in the 20th century concerning human exploitation resulted in the codification of laws pertaining to forced labor, servitude, slavery, and human trafficking. The application and enforcement of these laws in the 21st century is confronted by the expansion of international economic, political, and legal relationships. Ironically, as globalization progresses, international law is evolving into its own compartmentalized system, fragmented into various specializations. Have these competing forms of development affected the fight against exploitation? A globalized concept encompassing several of the aforementioned practices has been relabelled as “modern-day slavery,” in spite of the fact a specific law prohibiting “modern-day slavery” actually does not exist. It appears that individual laws involving exploitative practices must operate in a globalized world yet face interpretation in the fragmented realms of human rights, humanitarian, and international criminal law.

A methodological approach based on a textual analysis of existing definitions and judicial interpretations from these fragmented legal systems reveals the state of exploitation in international law. The clash between globalization and fragmentation is to the detriment of legal clarity. Some international courts have questioned the need for judicial institutions to distinguish between exploitative practices at all while others require detailed content, specificity, and differentiation of exploitation in law. Are these definitions of forced labor, servitude, slavery, and human trafficking operable in our current society or has fragmentation demonstrated the in applicability of these concepts? The results of a meticulous analysis of our internationally fragmented system concludes that ensuring criminal liability for those who exploit requires clear differentiation of these concepts in law. To this end, the author has created a chart distinguishing these legal concepts while demonstrating their relationship with one another to further the understanding of exploitation in law.

The term ‘exploitation’ appears in an abundance of international conventions condemning the exaction of various types of treatment. In spite of its repeated use, ‘exploitation’ remains undefined under international law. The international definition of ‘trafficking in persons’ is no exception. As codified in the Palermo Protocol, the concept of trafficking is compartmentalized into three elements. While the first two have their own finite list of qualifying ‘acts’ and ‘means’, the final element is constructed differently. Trafficking requires its perpetration be ‘for the purpose of exploitation’. Without defining ‘exploitation’, the Palermo Protocol states that ‘[e]xploitation 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.’ This construction appears to encompass a wide range of criminal conduct without articulating how to legally qualify an unlisted practice as ‘exploitation’. Although classified as a transnational organized crime, many advocate for the prosecution of human traffickers before the International Criminal Court as well as for the Court’s adoption of the Palermo Protocol’s legal framework. The need for further legal clarity on this concept will undoubtedly surface in any criminal justice institution whose statute uses the Palermo Protocol’s framework and a defendant is charged with this crime for an alleged exploitative purpose not itemized within the definition. How can a particular practice qualify as exploitation? With specific reference to international law, this paper will first endeavour to articulate the spirit of ‘exploitation’ using international legal instruments and judgments that address the exploitative practices already enumerated in the Palermo Protocol. After creating this theoretical framework, the remainder of this paper will attempt to identify the unlisted forms of exploitation which should qualify under the international law of trafficking.

Despite its international construction and codification, the criminal offense of ‘human trafficking’ is absent from statutes of international judicial institutions. Does this result in the inability to hold traffickers accountable under international law?  A comparative analysis of international courts and tribunals exposes the practical manifestations of human trafficking prosecutions. While offenders are charged with various exploitative crimes including enslavement, child soldiering and sexual offenses, the establishment of their guilt often materializes on the converging characteristics of human trafficking. Can this course of action survive, or should our present international judicial forums recognize human trafficking as a separate offense?

An intrinsic and material consequence of mass violence is the mass production of human bodies. Depending on each particular instance of mass atrocity, the fate of these bodies can vary: severe mistreatment, mutilation, concealment, destruction, transport, traffic of the corpses are not uncommon occurrences. Drawing from their respective research on human trafficking and on corpses of mass violence, the co-authors of this paper propose to adopt an intersectional approach and legally examine the issue of the trafficking of human remains and organs as one which is highly revealing of both the criminal modus operandi and the perpetrator’s criminal intent.
Yet, international law on the topic is problematically succinct and if the law of human trafficking, as enshrined in the Palermo Protocol (2000), does specify that such trafficking is the deviant obtainment and/or movement of persons for the purpose of exploitation - which does include ‘the removal of organs’ -  it however fails to define both the term ‘persons’ and the term ‘organs’. Perhaps leaving the door open for further ambiguity, the Protocol also falls short of expressly contemplating the trafficking of deceased human bodies. How then is an ‘organ’ to be understood? Would it cover bones and human remains? What use have criminals and traffickers made of organs and human remains? Are the perpetrators of the atrocities and the traffickers the same individuals or is there a chain of criminality? What, if any, legal status, protections and/or rights have been given to bodily parts resulting of atrocities and mass violence?
By raising and addressing these questions, this paper will highlight the features and characteristics of this very particular type of trafficking and will aim at better grasping the inner criminality of trafficking bodies, whether alive or dead.

co-author: Caroline Fournet

Proliferation of international protections in the 20th century concerning human exploitation resulted in the codification of laws pertaining to forced labor, servitude, slavery, and human trafficking. The application and enforcement of these laws in the 21st century is confronted by the expansion of international economic, political, and legal relationships. Ironically, as globalization progresses, international law is evolving into its own compartmentalized system, fragmented into various specializations. Have these competing forms of development affected the fight against exploitation? A globalized concept encompassing several of the aforementioned practices has been relabeled as “modern-day slavery,” in spite of the fact a specific law prohibiting “modern-day slavery” actually does not exist. It appears that individual laws involving exploitative practices must operate in a globalized world yet face interpretation in the fragmented realms of human rights, humanitarian, and international criminal law.
A methodological approach based on a textual analysis of existing definitions and judicial interpretations from these fragmented legal systems reveals the state of exploitation in international law. The clash between globalization and fragmentation is to the detriment of legal clarity. Some international courts have questioned the need for judicial institutions to distinguish between exploitative practices at all while others require detailed content, specificity, and differentiation of exploitation in law. Are these definitions of forced labor, servitude, slavery, and human trafficking operable in our current society or has fragmentation demonstrated the in-applicability of these concepts? The results of a meticulous analysis of our internationally fragmented system concludes that ensuring criminal liability for those who exploit requires clear differentiation of these concepts in law. To this end, the author has created a chart distinguishing these legal concepts while demonstrating their relationship with one another to further the understanding of exploitation in law.

Considering the number of instruments drafted over the last century, it can be safely asserted that human trafficking has been one of the items at the forefront of the international legislative agenda for the past 110 years. Although the formative agreements consistently recognized the criminality of trafficking in persons, it is evident that they failed in explicitly defining “trafficking” as a criminal offense. It was not until the emergence of the Palermo Protocol that an unequivocal definition of “trafficking” made its way into an international trafficking convention. Notwithstanding this regrettable the loophole, the value and import of these initial instruments  as criminal justice tools should not be underestimated.   
Scholars in the field of human trafficking research have broadly documented the chronology of events in a historical context. Yet, scholarship focused on identifying and isolating  “human trafficking” as a legal concept by way of contextualizing the substance provided in each of the 20th century conventions from a criminal justice perspective under international law is scarce. Surprisingly, an in depth and legally critical analysis of these formative international legal instruments has escaped academic scrutiny.
Utilizing a meticulous textual analysis of these instruments in conjunction with any relevant preparatory works, this paper’s objectives are three fold. Firstly, it will thoroughly examine the primary international trafficking agreements to ascertain whether criminal justice definitions of “trafficking” exist in each of the documents and if the elements of this crime are accurately understood in each treaty. Secondly, it will determine whether the legal construct of human trafficking as an international criminal concern has evolved over time. Indeed, a textual analysis of each treaty in chronological order reveals the existence of a statutory evolution in international law which manifests itself in scope of the offense, confines of criminal liability, and definition of the crime. Thirdly and finally, it is the purpose of this research to document what constituted trafficking as a criminal offense in these various instruments, to which persons the treaties and conventions provided protections, and to whom criminal liability extended. In traversing through a century of international human trafficking legislation, this paper will aim in contributing to unmask human trafficking as the crime of a thousand faces.

Global recognition of human trafficking has prompted significant legal changes and generated a criminal justice response. Anti-trafficking laws have spread at an unprecedented pace; however, human trafficking is often referred to as slavery. Discourse equating these concepts is delivered from political podiums, published by scholars, and posted on websites. Is this practice a source of contamination and does it incur a cost? Can and should international law differentiate between slavery and human trafficking?
A methodological approach based on the identification of discourse and ancillary international laws reveals the contagious impact of rhetorical contamination. The manifestation of this contamination, specifically, the interchangeable use of these crimes is delivered at the expense of the legal understanding of slavery and human trafficking resulting in infected international conventions, statutory interpretations, and judgments. Utilizing the currently constructed definitions of slavery and human trafficking, this paper proposes an approach in which these legal concepts should be distinguished. To this end, the author has created a testing chart to serve as a guiding tool enabling prosecutors to adequately differentiate these practices and ensure their adjudication.

The Palermo Protocol has constructed the crime of ‘trafficking in persons’ such that it requires the satisfaction of three elements: an act, a means, and for the purpose of exploitation. The final mens rea element has been described as one of dolis specialis. Although the Palermo Protocol was designed to foster domestic criminalization of the offense, the view that traffickers can or should be prosecuted in the International Criminal Court is not an isolated opinion. The basis for much of this discourse originates (in part) because of the reference to trafficking within the definition of ‘enslavement’ as a crime against humanity under Article 7 of the Rome Statute. If trafficking is elevated to an international crime, clarity as to the intent level required to satisfy a conviction is imperative. In order to ascertain what is required to prove the perpetrator’s ‘guilty mind’ as an element of this offense, this paper employs a textual analysis of the Palermo Protocol, relevant preparatory works and ancillary insight. As an international prosecution for traffickers has yet to materialize, the remainder of this paper attempts to contextualize the mental component of trafficking via a comparative analysis of international judgments concerning the crimes of genocide and the recruitment/use of child soldiers.

Short Summary

The international phenomenon commonly known as ‘human trafficking’ affects a variety of realms including: criminal justice, migration, human rights, labor and global economics. In 2000, the United Nations Office on Drugs and Crime introduced the Convention against Transnational Organized Crime in an effort to facilitate a criminal justice response via the worldwide domestic criminalization of organized criminal activities. Supplemented by three protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children officially identified and legally defined the offense of ‘trafficking in persons’.

Since the Palermo Protocol’s international debut, over 90% of states around the world have enacted domestic legislature criminalizing human trafficking. Nevertheless, conviction rates around the globe are abysmal. One of the main explanations for this prosecutorial deficiency includes issues concerning the crime’s codification. All of the terms contained in the international definition of ‘trafficking in persons’ are left undefined– an omission which has found its way into domestic trafficking law. Therefore, the first research inquiry discerns a thorough, elemental and critical understanding of the international definition of ‘trafficking in persons’.

After clarifying the Palermo Protocol’s definitional contours, the second aim of this study pertains to understanding the applicability of this offense within international criminal law (ICL). Even though the actual criminalization of trafficking is domestic, there is an ever growing camp of practitioners and scholars discussing the future prosecution of human traffickers before the International Criminal Court. While trafficking is not codified as its own offense within ICL, it is mentioned within the Rome Statute’s definition of ‘enslavement’ as a crime against humanity. Consequently, the second research question posed in this project inquires whether the international crime against humanity of enslavement has, in fact, incorporated the crime of ‘trafficking in persons’ within its legal framework.