THE UNITED NATIONS PROTOCOL TO PREVENT, SUPPRESS AND
PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN: A TOOL FOR CRIMINAL JUSTICE PERSONNEL
Natalia Ollus*

I. INTRODUCTION
This paper will present the main characteristics of the United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children. I will focus briefly on the
background to the Protocol and the phenomenon of trafficking in persons, before going into detail with
the Protocol. I will also present some comments to the articles of the Protocol. Finally I will look atsome examples of combating trafficking in persons and the implementation of the Protocol mainly fromthe European region.
I will in this paper talk broadly about trafficking in persons. However, I will give special attention
to trafficking in women and children for the purpose of sexual exploitation.
II. TRAFFICKING IN PERSONS - CHARACTERISTICS AND BACKGROUND TO THE UN
PROTOCOL
A. Characteristics of Trafficking in Persons
Trafficking in human beings includes illegal transport of people for the purposes of labour
exploitation and sexual exploitation. Trafficking in persons is not limited to the sex industry andprostitution, but includes also different forms of bonded labour.
Trafficking in persons is a global phenomenon. Although it seems to have increased in intensity
during the last 10-15 years, it is not a new phenomenon. Slavery and trafficking in persons, either forsexual exploitation or for labour, has taken place in different forms throughout history. The recent
growth seems to be facilitated by increased globalisation and modern communication techniques.
There are, however, also those that argue that the recent focus on trafficking in women and children forsexual exploitation is partly a result of an increased focus on the phenomenon, rather than a result of
an increasing problem. It is difficult to obtain figures on trafficking in persons. The United Nations
Centre for International Crime Prevention has set up a database on global trends, cross national routes
and the volume of trafficking in persons and smuggling of migrants, as well as data on victims andoffenders of trafficking and responses of criminal justice systems to this criminal activity. The databaseis not yet publicly available. This type of database is the first of its kind and will be used to facilitate
development of strategies to combat trafficking both nationally and globally.
Increasing global economic disparity, poverty, lack of education prospects, lack of adequate
employment opportunities and the disruption of traditional livelihoods contribute to the existence oftrafficking in persons. Trafficking in persons for the purpose of sexual exploitation is also directly
linked to the increasing proportion of women among the world’s poor and to women’s disadvantagedsocial, economic and legal situation in many countries.
Trafficking does not only exist due to an increase in supply of potential persons to be trafficked. The
global demand for cheap and undeclared labour as well as the demand for women and children in the
globalised sex market together with large numbers of potential immigrants form a lucrative ground for
traffickers to engage in this crime.

* Senior Programme Officer,
HEUNI, Helsinki, Finland

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122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Trafficking in persons has become a very profitable business for different organised crime groups.
Trafficking in persons is practised alongside the more traditional forms of crime such as drugtrafficking and the illegal arms trade. In many instances trafficking in persons has overtaken the more
traditional forms of crime since profits tend to be bigger and risks lower. So far, penalties have also
been relatively lenient.
B. Approaches to Trafficking
Trafficking in persons, especially trafficking in women for sexual exploitation, can be approachedfrom a variety of perspectives. Many actors, including authorities and non-governmental organisations
around the world, are currently paying immense attention to the problem of trafficking in persons.
This means that there are many simultaneous and sometimes opposed views on the same phenomenon.
The following approaches and the analysis of them outline some of the complexities of dealing withtrafficking in persons, especially trafficking in women1.
1. Migration Problem
In this approach, the focus is on trafficking in persons as a problem of migration. Preventive
measures in this approach include monitoring the movement of persons e.g. through increased bordercontrol, through increased control of travel documentation or through preventing migration in the firstplace.
Trafficking in persons is indeed linked to migration. Many persons who are trafficked are persons
who themselves wish to migrate, e.g. for better work opportunities. Trafficking can thus be a form of
irregular migration. However, trafficking in persons differs from illegal migration in that persons who
are trafficked are by definition exploited in the country of destination. They are not only taken over theborder but also exploited. Illegal or smuggled migrants, on the other hand, are usually only assisted
over the border. The transporters might expose the smuggled migrants to inhumane treatment during
the trip, but their contact is usually cut when the migrants reach their destination. While smuggling of
migrants can be seen as a crime against state sovereignty, trafficking is foremost a crime against theindividual and only secondarily a crime against state soveregnity. In seeing trafficking only as a form of
migration, there is a risk of insensitivity towards individual victims at the expense of protecting thestate from undesired aliens.
2. Criminal Problem
This approach sees trafficking in persons from a penal viewpoint, treating trafficking as a crime.
The aim in the criminalistic approach is to introduce more effective ways of investigation, prosecution
and punishment of trafficking in persons. This approach also aims at intensifying police and judicial
co-operation in order to facilitate prosecution of international criminal groups that organise trafficking
in persons. The criticism against the criminal approach focuses on the insensitivity towards the victimsof trafficking. In some instances the victims’ security and protection is placed in a subordinate position
to the interests of prosecution and trial. This means that victims of trafficking are seen foremost as
witnesses or informants, rather than as victims of a serious crime. On the other hand, victims of
trafficking might themselves be proven guilty of offences, e.g. migration offences, drug crimes, or as
recruiters for trafficking2. A trafficked person might therefore simultaneously be an offender, an illegal
migrant, a victim, and a witness. This complexity poses a challenge for the criminal justice authorities
dealing with trafficking in persons.
3. Human Rights Problem
In this approach, trafficking in persons is seen as a violation of human rights. In this approach, allmeasures to prevent and combat the phenomenon, as well as measures to support and assist victims,
are guided by basic human rights principles, guaranteeing the rights of the victims of trafficking.
There are many different advocates for the human rights approach. These diverging viewpoints bringup some quite controversial issues for public policy. Some advocates, for example, see trafficking forsexual exploitation as closely linked to prostitution. They see both prostitution and trafficking as forms
of sexual exploitation. Other advocates focus solely on the coercive aspects of trafficking and forced
1

See Askola, H. (2001) and Strandberg, N. (1999).

2

See Cordero, T. and Facio, A. (2001).

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prostitution. Some advocates, however, do not take a stance for or against prostitution, but only look at
the violating aspects of trafficking. All human rights approaches, however, share the notion that
trafficking is a serious human rights violation, and that all measures to combat trafficking should
guarantee the rights of the victim. The human rights perspective regards trafficking as exploited
migration, simultaneously stating that trafficked persons should not be seen as migration criminals.
4. Labour Issue Problem
This approach sees trafficking in persons as a result of foreign migrants’ poor status. In this view,trafficking in persons should be prevented through guaranteeing workers’ rights for migrants also inthe countries of destination. If the working conditions were secured, these persons need not be
trafficked in the first place but could instead travel as migrant workers. This approach can be criticisedfor not focusing on the wishes of the individual persons being trafficked. All trafficked persons do notwant to work in the field they end up in. Although it is important to improve working conditions, thismight merely function as a treatment of the symptoms, not a remedy to the problem itself. And, it does
not necessarily solve the problem of smuggling of migrants.
5. Health Problem
This approach focuses on the side-effects of trafficking in persons. Trafficking especially for the
purpose of sexual exploitation is seen as a contributor to the spreading of diseases, especially sexuallytransmitted ones. In this perspective the focus is on the trafficked persons as transmitters of disease
and as a threat to the health of the rest of the population. Preventive measures include awarenessraising about sexually transmitted diseases. In some instances, it also includes health control ofwomen in prostitution. This approach can be criticised for only seeing the consequences of trafficking
and not the fate of the victims. Additionally, women who are trafficked and held in control by the
traffickers do not necessarily benefit from the health measures introduced. This approach also mainly
sees trafficking mainly from the perspective of the receiving countries.
The approaches above can roughly be categorised into strategies that repress trafficking in persons,and strategies that focus on victim support. Both strategies can be beneficial and sometimes they canbe combined. States and non-governmental organisations that fight trafficking in persons use different
approaches depending on their ideologies and goals. In some instances, their interests are opposed.
Non-governmental organisations tend to highlight victims’ rights, while States are more interested incombating organised crime and protecting State sovereignty, be it sometimes at the expense ofindividual victims. We as representatives of the criminal justice system are mainly interested in thecriminal justice and perhaps also the migration approach to trafficking in persons. However, trafficking
is a complex problem, and it seems that it is best combated through combining forces between different
organisations and advocates.
United Nations Member States also have diverging interests when it comes to combating trafficking
in persons. While some countries mainly function as countries of origin, others are countries of transit
and others countries of destination. In some instances, a country can be all three at once. This poses
different problems as well as interests for a State in dealing with the problem of trafficking in persons.
III. PREVIOUS MEASURES TO TACKLE TRAFFICKING IN PERSONS, ESPECIALLYWOMEN AND CHILDREN
Trafficking in women has been targeted by the international community for many decades. The
United Nations has in many of its sub-bodies developed Declarations, Protocols, and Resolutions totarget trafficking in persons. Some of these documents do not explicitly talk about trafficking, but focus
instead, for example, slavery or women’s rights.
A. Human Rights Instruments
The following is a list of some international, mainly human rights focused instruments directly or
indirectly related to trafficking in persons, especially trafficking in women and children3.

3

See Askola, H. (2001).

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The 1948 Universal Declaration of Human Rights•

Acknowledges the equality, liberty, security, freedom, also from slavery or servitude, of all humanbeingsThe United Nations International Covenant on Civil and Political Rights (1966)•

Forbids slavery and slave-like practices

The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitationof the Prostitution of Others (1949)••

Combined earlier UN Conventions from the three first decades of the 20th Century on the
suppression of slave trade, “white slave traffic” and traffic in women and children
Provides an obligation to punish traffickers, even if the person being exploited has consented to thetrafficking

1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, theSlave Trade, and Institutions and Practices Similar to Slavery•

Criminalises the act of “enslaving another person” and requires states to co-operate in combating
slavery
The Convention on the Elimination of All Forms of Discrimination against Women•

Mentions trafficking in women and encourages States to take legislative and other measures “tosuppress all forms of traffic in women and exploitation of prostitution of women”

B. Resolutions of the United Nations Commission on Crime Prevention and Criminal
Justice
The United Nations Commission on Crime Prevention and Criminal Justice has especially recently
adopted several resolutions related to trafficking in persons. The list below gives an overview of someof the resolutions.
1994

Organised Smuggling of Migrants
International Trafficking in Minors

1995

Combating the Organised Smuggling of Illegal Migrants

1996

Violence Against WomenInternational Trafficking in Children

1997

Violence Against Women

1998

Draft Resolution on Illegal Migrants and Trafficking in Persons

1999

Resolutions concerning the Palermo convention

These resolutions formed some of the background to the elaboration of the new instruments forcombating different forms of organised crime.
C. Background to the UN Protocol - Increase in Organised Crime and the Need for
Increased International Co-operation
1. Organised Crime and Trafficking in Persons
Although trafficking in persons, especially in women for the purpose of prostitution, has been on theinternational agenda for many decades, many national laws have been poorly equipped to combat the19

RESOURCE MATERIAL SERIES No. 62
new forms of trafficking in persons. During the last decade of the 20th Century it seemed that theextent of trafficking in persons was increasing and that it took new forms. This change was linked tothe increase in transnational organised criminal activities.
The technological developments during the late 20th Century opened up internationalisation andinterdependence among businesses. In the same manner as legal businesses expanded internationally,so did criminal enterprises4. Trafficking in persons has become a profitable business for different
organised crime groups. Trafficking in persons is practised alongside the more traditional forms ofcrime such as drug trafficking and the illegal arms trade. In many instances trafficking in persons has
overtaken the more traditional forms of crime since profits tend to be bigger and risks lower. So far,penalties have also been relatively lenient.
As an example of the profits involved, according to some estimates in Thailand, women who wish to
migrate end up paying up to 40 000 US$ to traffickers. These women find themselves in indentured
service, most often in prostitution. Although they may earn up to 7 000 US$ per month, they often
receive very little of that money themselves5.
Governments realised the threats posed by the increase in transnational crime during the late1990’s and started to develop a new international instrument for combating transnational organised
crime.
2. The Elaboration of the Convention and the Protocols
The Declaration adopted at the meeting of the Ministers of Interior and Justice in Naples in 1996
called for actions to combat organised crime. As a result, Poland drafted a first outline for a convention
against organised crime. The General Assembly founded an Ad-hoc Committee in 1998 with the aim todraft the Convention against Transnational Organised Crime. The first meeting for the development of
the convention took place in Warsaw, Poland in February 1998. During the Seventh Session of theCommission on Crime Prevention and Criminal Justice in 1998, Argentina suggested drafting a newconvention against trafficking in minors. On the suggestion by Greece, Member States decided to
expand the scope of the instrument and included all forms of trafficking in persons. Women andchildren were given special attention, as they tend to be especially vulnerable to this form of crime. It
was agreed that the instrument would be elaborated as a Protocol to the UN Convention against
Transnational Organised Crime. The Convention includes three optional Protocols:•

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime6
Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United
Nations Convention against Transnational Organized Crime
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts andComponents and Ammunition, supplementing the United Nations Convention against
Transnational Organized Crime••

The Committee convened at the United Nations in Vienna eleven times. Some 120 countries
participated in the negotiations together with a large group of non-governmental organisations. The
negotiations for the Trafficking Protocol were finalised in October 2000. The General Assembly of theUnited Nations adopted the Convention together with two Protocols 7 on 15 November 2000. The
Trafficking Protocol was opened up for signatories at the Signing Conference in Palermo, Italy in
December 2000. Almost eighty states signed it at that occasion. Currently (as of 15 August 2002) there
are 106 signatories to the Protocol and 14 ratifications. The Protocol enters into force when forty
Member States have ratified it.

4

Adamoli, S. et al (1998).

5

Conference Report of the two Transatlantic Workshops on Human Smuggling

6

Henceforth referred to as the (Trafficking) Protocol.

7

I.e. the Trafficking Protocol and the Illegal Migrants Protocol. The Firearms Protocol was adopted in May 2001.

20

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEThe Trafficking Protocol is primarily a law enforcement instrument but it also encompasses theprotection of victims. The concept adopted during the negotiations for the Protocol aims at keeping abalance between the penal and the human rights perspective to trafficking. It combines traditional law
enforcement measures with measures for victim protection. While criminalising the traffickers, theProtocol highlights that prosecution and punishment should not endanger the safety of the victim.
IV. OUTLINE OF THE TRAFFICKING PROTOCOLThe Protocol is divided into three main parts:
Part I - General Provisions (articles 1-5)••••

purpose (art. 2)
definition (art. 3)
scope of application (art. 4)
criminalisation (art. 5)
Part II - Protection of Victims of Trafficking in Persons (articles 6-8)•••

assistance and protection of victims (art. 6)
status of victim in receiving state (art. 7)
repatriation of victims (art. 8)
Part III - Prevention, Co-operation and Other Measures

•
•
•
•
•

prevention of trafficking in persons (art. 9)
information exchange and training (art. 10)
border measures (art. 11)
security and control of documents (art. 12)
legitimacy and validity of documents (art. 13)
The final part (art. 14-20) of the Protocol deals with the technicalities of the document.
V. PRESENTATION OF THE PROTOCOL8

A. General Provisions (articles 1-5)
The first article of the Protocol outlines the relationship between the Convention on Organized
Crime and the Protocol. The relationship is built on three principles.
1)The Protocol supplements the Convention and shall be interpreted together with the Convention2)The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise
provided herein3)The offences established in article 5 of the Protocol shall be regarded as offences as established inaccordance with the Convention
The relationship between the Protocol and the Convention was rather difficult to establish during
the negotiations. The Protocol was negotiated in parallel with the Convention. The negotiations
proceeded at a different pace causing difficulties in determining the scope of the application of theProtocol. Some Member States e.g. were of the opinion that the Protocol should not only cover criminal
acts falling under the definition of organised crime, but should also include acts committed by one or
two persons.
In order to become a Party to the Protocol, States must first be a Party to the Convention. The
Protocol contains several additional provisions to the Convention. The principle of mutatis mutandis
8

For the full document as well as for the interpretative notes and reports of the ad-hoc group, please visit the website of theUnited Nations Office of Drug Control and Crime Prevention at: www.odccp.org

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means that the criminalisations that are covered by the Protocol should be applied as such. In
implementing the Protocol, the Convention is thus subordinate to the Protocol if the Protocol states
something additional to the Convention.
The Trafficking Protocol has three main purposes as outlined in article 2, namely to:• prevent and combat trafficking in persons paying particular attention to women and children• protect and assist the victims of such trafficking, with full respect for their human rights; and• promote co-operation among States in order to meet those objectives
Besides combating organised crime and promoting international co-operation, victim protection is a
crucial element of the Protocol. The definition of trafficking as outlined in article 3 defines a variety ofpractices and actors that can be involved in trafficking. Trafficking in persons means:• 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 giving or receiving payments
or benefits to a person in control of the victim,• for the purpose of exploitation.
The definition of exploitation includes the:• exploitation of the prostitution of others or other forms of sexual exploitation, forced labour orservices, slavery or practices similar to slavery, servitude or the removal of organs.
This is the first time the international community agreed on a common definition of trafficking inpersons. The crime of trafficking in persons consists of three parts. The crime involves a measure
which is carried out through one or some of the means listed above, for the purpose of exploitation of aperson. The definition furthermore outlines the minimum meaning of exploitation.
The definition was perhaps the most difficult aspect of the Protocol during negotiations. On one
hand the definition is regarded to include many elements that are difficult for prosecutors to prove. On
the other hand, the Protocol is seen to provide a good ground for prosecuting all forms of trafficking
since it outlines also the more subtle forms of threat and coercion that leads a person to become a victim
of trafficking. The reference to “abuse of power or of a position of vulnerability” is in the interpretativenotes of the Protocol defined as referring to a situation where the person has no real and acceptable
alternative but to submit to the abuse. This definition recognises that trafficking can also occur
without any actual threat or use of force - simply that a person who might not have had any means torefuse being trafficked should still be regarded as a victim of trafficking.
The definition of exploitation is one of the more controversial aspects of the Protocol. Countries
have different laws and views on prostitution. During the negotiations, some participants, including
non-governmental organisations and States, wanted to classify all prostitution as trafficking in persons(referring to the definition above - abuse of power or position of vulnerability) while others wanted toinclude only forced labour, slavery or servitude in the definition. Consensus was reached with defining
trafficking as involving slavery, forced labour and servitude, and leaving exploitation of the prostitutionof others and sexual exploitation undefined. The Protocol addresses the exploitation of the prostitutionof others and other forms of sexual exploitation only in the context of trafficking in persons. Theinterpretative notes highlight that States may interpret the article according to their domestic
legislation.
Exploitation also includes, in the Protocol, servitude and the removal of organs. The removal oforgans was included on the request by some states. The interpretative notes further clarify that theremoval of organs should not include the removal or organs from a child with the consent of a parent or
guardian for legitimate medical reasons. Furthermore, illegal adoption also falls under the scope of theProtocol.

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122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Article 3 (b) deals with the consent of the victim.
3 (b) The consent of a victim of trafficking in persons to the intended exploitation set forth insubparagraph (a) of this article shall be irrelevant where any of the means set forth insubparagraph (a) have been used.
This definition states that the consent of the victim of trafficking is irrelevant to the prosecution of
the traffickers. The article recognises that although some of the persons who are trafficked are awarethat they may be used for labour or prostituted in the country of destination, their initial “consent” is a
result of their vulnerable or difficult situation and should not dispense the traffickers from legal
responsibility. Even though a person would initially agree to travel abroad, to work in bad conditions
for little salary and with little freedom, the person would still be a victim of trafficking if the trafficker
uses force, deception, abduction or the victim’s position of vulnerability. During negotiations, someparticipants called for limiting the definition to only those persons who could prove that they had been
forced into trafficking without their own consent. If this definition had been adopted, the focus would
have been more on the victim of trafficking than on the actions of the traffickers. The current definition
leaves instead the burden of proof on the State or the public prosecutor in accordance with domestic
law. In order to reach convictions, prosecutors must therefore show that the trafficker used coercionand fraud as outlined in article 3 to exploit the victim. The interpretative notes add that there should
be no restrictions on the right of the accused persons to a full defence and to the presumption of
innocence.
Subparagraphs (c) and (d) of article 3 deal with children as victims of trafficking in persons. Any
recruiting, transportation, transferral, harbouring or receipt of a person under 18 for the purpose of
exploitation is considered as trafficking. The Protocol thus criminalises all forms of exploitation ofchildren. Although the Protocol puts special emphasis on children, some non-governmentalorganisations have criticised the Protocol for not addressing adequately the special needs of children.
They call State parties to also incorporate additional relevant provisions from other UN conventions
dealing specifically with the rights of children9.
Article 4 deals with the scope of application and article 5 with the criminalisation.
4. The Protocol shall apply, except as otherwise stated herein, to the prevention,
investigation, and prosecution of the offences as established in accordance with article 5 of thisProtocol, where those offences are transnational in nature and involve an organised criminal group,
as well as to the protection of victims of such offences.
The application of article 4 establishes who can be prosecuted and what is the scope of the crime.
The crime should be transnational and should involve an organised criminal group10.
However, article 4 should be read together with article 5, defining the scope of criminalisation.
5.1 Each State Party shall adopt such legislative and other measures as may be necessary toestablish as criminal offences the conduct set forth in article 3 of this Protocol, when committed
intentionally.
Although article 4 covers only offences that are transnational in nature and involve an organised
criminal group, article 5 does not include these two links. Thus national law can criminalise trafficking
regardless of whether the conditions of transnationality and involvement of criminal organisations are9

See e.g. the International Human Rights Network’s joint NGO submission to the eighth-session of the Ad-Hoc Committee on
the Elaboration of a Convention against Transnational Organised Crime.

10 The definition of transnational in nature, and organised criminal group is outlined in articles 2 and 3 of the Convention on

Organised Crime. An organised criminal group is a structured group of three or more persons with the aim of committing one
or more serious offences in order to gain financial or other material benefit. A transnational offence should be committed in
more than one State, or planned in more than one State, or involving an organised criminal group, or has effects in anotherState.

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met. In interpreting the Protocol States can ask for international assistance and co-operation fromother State Parties with reference to the Protocol only in cases that involve transnational elements andorganised crime groups. However, States may commit themselves to a broader scope of criminalisation
and also include crimes committed by a single perpetrator within the borders of that nation.
Additionally, article 5 requires State Parties to criminalise also:• attempting to commit a trafficking offence• the participation as an accomplice in such an offence, and• the organisation or directing of other persons to commit such an offence
The legal provisions of article 5 are mandatory. The subparagraph defining attempt caused somediscussion during negotiations. Different penal systems have diverging views on attempt. Theinterpretative notes thus highlight that “attempting to commit an offence” can in some countries be
understood as acts perpetrated in preparation for an offence, and also those acts carried out in an
unsuccessful attempt to commit the offence, when those acts are punishable under domestic law. It isalso important to recognise that “participating as an accomplice” ideally should not cover the victims of
trafficking.
The first part of the Protocol clearly outlines that trafficking can and should be considered as aseparate offence in criminal provisions.
B. Part II - Protection of Victims of Trafficking in Persons (articles 6-8)11
The second part of the Protocol deals extensively with measures to protect victims. During thenegotiations for the Protocol this section received intense attention especially from human rights
organisations and non-government organisations working with victims of crime.
Article 24 of the Convention covers the protection of witnesses who give testimony, and in
appropriate cases, also provide protection for the relatives of the witnesses. Article 25 additionallyprovides for the assistance and protection of victims. The Protocol contains some more specificmeasures for protection. The Protocol recognises that victims of trafficking are specially vulnerable
and need specific protection. According to article 6 of the Protocol States shall protect the privacy andidentity of victims of trafficking in persons, including by making legal proceedings relating to suchtrafficking confidential. The Protocol thus recognises the importance of protecting the identity of
trafficking victims facing retaliation from traffickers. However, the provision does not contain any legal
obligations. If possible, States should therefore not reveal the identity of trafficked persons e.g. inconnection to trials. The implementation of this provision may call for legislative changes in the State
Parties. Currently, for example in Finland the trial documents contain very detailed information on the
persons involved in the trial, including addresses and contacts. The accused, the plaintiff and thewitness alike have the right to this information. In order to accommodate the safety of victims of
trafficking, this practice needs to be reconsidered e.g. so that only authorities can get access to this typeof sensitive information.
Additionally, the Protocol highlights the need of trafficked persons to receive information on
relevant court and administrative proceedings. Victims should also receive assistance to enable theirviews and concerns to be presented and considered at appropriate stages of criminal proceedings.
Although this subparagraph is also conditional, it can be understood to require States to provide
information to victims in their own language through a translator. It also entails that victims shouldhave the right to legal assistance in order to ensure that their views are presented at trial. This isespecially the case if investigation, prosecution, and sentencing require the presence of the victim.
However, the paragraph should preferably be interpreted to cover any victims, not just those that takepart in criminal proceedings as witnesses.

11 For further discussion on this section, please see Van Dijk, J.

24(2002).

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Furthermore, States in co-operation with civil society shall consider to provide for the physical,
psychological and social recovery of victims or trafficking in persons. This shall include:• Appropriate housing;• Counselling and information, especially concerning legal rights, in a language that the victim canunderstand;• Medical, psychological and material assistance; and• Employment, education and training opportunities.
This subparagraph recognises that victims of trafficking in persons have some basic needs. The
paragraph also outlines multi-agency co-operation as a model for providing victim assistance. In many
instances non-governmental organizations are better equipped to deal with victims in a sensitive way
than authorities, be it in sheltering them, giving legal and psychological counselling and training. It isnecessary for States to co-operate with civil society in providing victim assistance.
This paragraph does not give any legal obligations to State Parties although the Convention itself
does contain a provision on mandatory, general assistance to victims. During the negotiations for theProtocol participants could not agree on mandatory assistance. It was mainly some of the countries ofdestination that opposed this obligation referring to its financial implications. As a consequence, thetypes of assistance as set forth in this subparagraph shall be applicable only to persons who are in aState Party’s territory. Thus the measures of assistance are applicable to the receiving state only untilthe victim has returned to his or her state of origin. Ideally, in implementing the Protocol, all involvedStates should have an obligation to take care of the victims, also those that have been repatriated.
Wealthier countries should preferably provide assistance for poorer countries in fulfilling the demand ofproviding services for victims.
States shall especially take into account the age, gender and special needs of victims of trafficking
in persons, notably the needs of children. The measures taken should be both gender and childsensitive in terms of housing, education and care. This provision shows that States recognise that
trafficking in persons has specially harmful effects on women and children.
Furthermore article 6 calls States to provide for the physical safety of victims of trafficking inpersons while they are within its territory. This paragraph demands States ensure the safety of all
victims of trafficking, not just those who are witnesses at trials. Contrary to the Convention (referring
to witnesses), the Protocol does not mention protection of the relatives or other persons close to thevictim. Neither does the Protocol create obligations for countries of destination to cater for theprotection of victims, or their relatives, once they have been repatriated from the receiving country12.
In theory, States should co-operate in order to share the responsibility of keeping the victims safe andalso provide for security measures after repatriation. Furthermore, it is known that both victims andtheir relatives or friends can risk retaliation both before and after repatriation.
Additionally, article 6 also outlines compensation measures for victims. States shall ensure that
there are measures within the legal system that offer compensation for damages the victim has
suffered. While States may provide compensation, the Protocol does not guarantee the right for victims
to compensation. The Protocol does not either address who should provide this compensation - theState or the offender. Depending on domestic legislation, this can be solved in different ways. Somecountries have, for example established funds for victims of trafficking, financed partly by confiscatedassets13.
In addition to victim assistance, the Protocol defines the status of victim in receiving States inarticle 7. Each State shall consider adopting measures that permit victims of trafficking in persons toremain in its territory, temporarily or permanently, in appropriate cases. In many countries, victims of
12 For a critique of this paragraph and for other comments to the Protocol, see The Annotated Guide to the Complete UN

Trafficking Protocol by the International Human Rights Law Group. See also Raymond, J. (2001) for comments to theProtocol.
13 See Van Dijk, J.

(2002), p. 22.

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trafficking are deported when detected or after trial. This paragraph highlights the need to provide
some residence rights for victims. During negotiations there were extensive discussions on how long a
victim has the right to stay in a country of destination. There was general consensus on permitting thevictim to stay at least during the court process. Subparagraph 7.2 adds that States shall give
appropriate consideration to humanitarian and compassionate factors. Since the Protocol does not
oblige states to provide for the safety of victims after repatriation, the “humanitarian andcompassionate factors” should preferably receive thorough consideration and should be used forproviding victims in jeopardy with a permit to stay.
In addition to protection of victims, and the right to stay in the country of destination, the Protocol
deals with repatriation of victims of trafficking. The Protocol facilitates the repatriation of victims
through article 8. The State Party of which a victim of trafficking in persons is a national or in which
the person had the right of permanent residence at the time of entry shall facilitate and accept, with
due regard for the safety of that person, the return of that person without undue or unreasonable delay.
The definition of permanent residence caused some debate during negotiations. Some legislation
does not recognise the concept of permanent residence. However, permanent residence was agreed to bebetter than mere residence. Many victims who have been away for long periods of time might notanymore have a residence in their country of origin while they usually do have the right to permanent
residence.
States should take into consideration the safety of the person when repatriating a victim oftrafficking. States should also consider the other provisions of the Protocol, such as victims’ rights tojustice before repatriating a victim of trafficking. When a State returns a victim, the return shall,besides being safe, also consider the status of possible legal proceedings, and shall preferably bevoluntary (art. 8.2). However, the interpretative notes from the negotiations outline that the return canalso be involuntary. In repatriating victims States should preferably return only those that want toreturn, and those whose safety can be guaranteed and whose legal proceedings in the receiving country
have been finalised. It is thus necessary to consider the risk of retaliation to the victim and his or her
relatives before repatriating him or her. The article shall furthermore be without prejudice to victims’rights in existing domestic law and to any bilateral or multilateral agreements that govern the returnof victims of trafficking.
The rights of the receiving countries are quite strongly outlined in the next paragraphs. In order tofacilitate repatriation the Protocol requires countries of origin to co-operate with receiving States inproviding information on the nationality of victims (article 8.3) and in issuing travel documents toenable the person to travel and re-enter (article 8.4).
C. Part III - Prevention, Co-operation and Other Measures
Article 9 of the Protocol requires States to implement comprehensive policies and measures toprevent and combat trafficking in persons and to protect victims, especially women and children fromrevictimisation (subparagraph 9.1). It is known that in some cases persons who have been trafficked
and then deported to their country of origin may face being trafficked again. Hence the implementationof the Protocol, including the implementation of the provisions dealing with repatriation, should aim at
minimising the risk of revictimisation.
Furthermore, states shall engage in research, information and mass media campaigns and socialand economic initiatives in co-operation with non-governmental organisations and other relevantorganisations. Mass-media campaigns have successfully been organised in several countries. E.g. theInternational Organization for Migration is currently carrying out a large campaign in central andEastern Europe for raising the awareness about trafficking in women.
Countries shall also strengthen measures to ease the factors that make especially women andchildren vulnerable to trafficking. States shall thus fight poverty, unemployment and lack of equal
opportunity (paragraph 9.4). The Protocol also calls States to discourage the demand that fosters all
forms of exploitation of persons, especially women and children, that leads to trafficking (para 9.5). The
two last paragraphs of article 9 complement each other in preventing trafficking. It is crucial to both26

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address the root-causes of trafficking as well as the demand that maintains trafficking. The demandside can be approached in different ways. One interpretation of this paragraph is that the demand for
trafficking for the purpose of sexual exploitation could be reduced through addressing the clientele ofprostitution. Additionally, trafficking for the purpose of labour could be reduced through discouraging
the demand for migrant workers.
Article 10 deals with information exchange between authorities and training of authorities. Law
enforcement, immigration and other relevant authorities shall, as appropriate, co-operate with one
another by exchanging information, in order to be able to determine:• whether individuals crossing borders with travel documents belonging to another person or
without travel documents are perpetrators or victims of trafficking (para 10a)• the types of documents that are used in crossing an international border for the purpose of
trafficking (para 10b)• the means and methods used by organized criminal groups, such as recruitment, transportation,routes and links, and possible measures to detect them (para 10c)
As regards training of authorities, States should provide training for law enforcement, immigrationand other relevant officials in the prevention of trafficking in persons. The training should focus on
measures of prevention, prosecution of offenders and protection of victims. The training should also
encourage co-operation with civil society and non-governmental organisations. It is important to notethat the training shall take into account human rights aspects and be child- and gender sensitive.
Article 11 deals with border measures:• Without prejudice to international commitments in relation to the free movement of people, State
Parties shall strengthen, to the extent possible, such border controls as may be necessary to
prevent and detect trafficking in persons.
This paragraph calls for a careful balance between freedom of movement and border controls.
While States strengthen border control measures to get at traffickers and illegal migrants, it should not
happen at the expense of victims’ human rights. Training of officials will be crucial in reaching thisbalance.
Article 11 furthemore requires States to adopt measures to prevent transport operated bycommercial carriers. States shall also oblige such commercial carriers or companies to ascertain thatall passengers have necessary travel documents and provide for sanctions in case of violations of thisobligation. These sanctions could include, for example that the commercial carrier is obliged to return
any persons who are found to possess inadequate travel documents.
States can also permit the denial of entry or revocation of visas of persons who are known to engage
or suspected of engaging in trafficking crimes. Finally, States shall consider strengthening co-operation
among border control agencies by establishing and maintaining direct channels of communication.
Article 12 deals with the security and control of documents, obliging States to:• ensure that their travel or identity documents cannot easily be misused, falsified or unlawfully
altered, replicated or issued• ensure the integrity and security of these documents and to prevent their unlawful creation,issuance and use
The final article (article 13) of the Protocol deals with the legitimacy and validity of documents. At
the request of another State, a State Party shall verify within a reasonable time the legitimacy andvalidity of travel documents that are suspected of being used for trafficking in persons.
The final part of the Protocol includes the savings clause. The savings clause is similar to the clausein the Migrants Protocol. The Protocol shall not affect any other rights, obligations or responsibilities of27

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States and individuals under international law, including humanitarian, human rights and refugeelaws. Also the notion of non-refoulement is included in the Protocol. Victims of trafficking shall thus
have the right to seek asylum in a State regardless of whether they entered the country illegally or not.
Furthermore, the Protocol shall not be interpreted in a way that is discriminatory to victims of
trafficking.
The final articles cover the normal provisions, including settlement of disputes, ratification
measures, entry into force, amendment, and denunciation.
VI. REQUIREMENTS AND SUMMARY
A. Summary of the Aims of the Trafficking Protocol
In preventing trafficking in persons, the Protocol obliges states to:• criminalise trafficking• investigate, prosecute and convict traffickers• undertake border control measures
States shall also, within their means:• provide measures to protect and assist victims• train law enforcement and border control officials• inform and educate victims and potential victims, as well as the general public• co-operate with each other and civil society to reach these aims
Although the international community has attempted to combat trafficking in persons alreadyearlier, it has failed to do so effectively. The strength of the Trafficking Protocol lies in that it provides
requirements for legal measures, through combining the human rights and law enforcement
approaches to trafficking in persons. The successful implementation of the Protocol, however, requires
a careful balance between these two approaches.
B. Main Ratification Requirements
The main requirement for ratification of the Trafficking Protocol involve the following:
State parties shall:• Criminalise all forms of trafficking in persons as outlined in article 3• Undertake legislative or other measures to prevent the misuse of commercial carriers for thesmuggling of migrants (article 11)• Make it a legal obligation for commercial carriers to check passenger travel documents (article
11)• Prepare travel documents that are difficult to misuse, falsify, alter or replicate (articles 12-13)
It is mainly the criminalisation of all forms of trafficking in persons which will require somelegislative changes or additions in many Member States. Additionally, States need to include thevictim-centred approach in the ratification of the Protocol.
VII. SOME EXAMPLES FROM THE EUROPEAN REGION
In the European region, trafficking in persons is currently receiving increasing political priority.
The activities include both the prevention of trafficking in women and children for the purpose of sexual
exploitation, and trafficking in human beings for the purpose of labour exploitation.
The European Union’s actions to combat trafficking in human beings are, since 1999, explicitly
mentioned under Title VI in the Amsterdam Treaty covering police and judicial co-operation. As ameasure to criminalise trafficking, the Council of the European Union adopted a framework decision on
combating trafficking in human beings in June this year 14 . The aim of the decision is to set up28

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
commonly adopted definitions and penalties in the Member States’ legislation. These definitions arelargely based on the definitions of the UN Protocol.
Sweden is one of the EU member states that has most recently ratified the UN Protocol. From 1
July 2002, the Swedish legislation criminalises trafficking for the purpose of sexual exploitation where
the crime of trafficking involves the crossing of borders. The penalties range from between 2 and 10
years of imprisonment. Attempted trafficking, preparations for trafficking or the endorsement oftrafficking is also criminalised in the Swedish legislation.
The newly established unit of EUROJUST, composed of national prosecutors, magistrates andpolice officers from the EU aims at facilitating co-operation in order to support criminal investigations
in organised crime cases. Combatting trafficking in persons through co-operation in investigation andprosecution is also one of its tasks.
There are also several programmes at EU level that contribute to actions aimed at supporting,assisting and protecting victims of trafficking. Many of these programmes focus on providing financial
assistance for non-governmental organisations that support victims. With such EU funding nongovernmental organisations have e.g. built networks for assisting vitcims who are repatriated andcreated means of support for victims both in countries of origin and destination.
Furthermore, there are also some measures to prevent trafficking through information campaignsThe Nordic and Baltic countries of Europe are currently engaged in a campaign to prevent trafficking in
women. In the Nordic countries, mainly acting as receiving countries, the campaign addresses thegeneral awareness of the population so that they recognise the existence of the problem. It also
addresses clients and potential clients of prostitution, thus aiming at reducing the demand for
trafficking in women. In the Baltic countries, which mainly act as countries of origin, the campaign
focuses on preventing women from becoming victims of trafficking through media and school
campaigns. The campaign also aims at providing recommendations for the ratification of the Protocolin the region.
The Trafficking Protocol provides some excellent guidelines for good practice. Once the Protocol
enters into force we will see what effect it has on combating the organised crime groups who engage inthe horrendous crime of trafficking in persons - I hope that it will have vast global effects on increasing
human safety.
REFERENCES
Adamoli, S. et al (1998). Organised Crime Around the World. HEUNI Publication Series No. 31.
HEUNI: Helsinki.
Askola, Heli (2001). Trafficking in Women in the Baltic States: Legal Aspects. In Trafficking in
Women and Prostitution in the Baltic States: Social and Legal Aspects. International Organization for
Migration. 2001.
Cordero, T. and Facio, A. (2001). Trafficking in Women and Children for the Sex Industry:
Women’s Participation in this Crime. A Contextual Approach. In Ollus, N. & Nevala, S (eds.). Womenin the Criminal Justice System: International Examples & National Responses. HEUNI: Helsinki.
Van Dijk, Jan (2002). Empowering Victims of Organised Crime: On the Concurrence of the Palermo
Convention with the UN Declaration on Basic Principles of Justice for Victims. In International Review
of Victimology, Vol. 9/1, pp. 15-30.
Rayomond, Janice (2001).The Guide to the New UN Trafficking Protocol. Coalition Against
Trafficking in Women.

14 Council Framework Decision on Combating Trafficking in Human Beings.

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Strandberg, Nina (1999). What is Trafficking in Women and what can be done? In Crossing Borders
Against Trafficking in Women and Girls. A Resource Book for Working Against Trafficking in theBaltic Sea Region. Foundation of Women’s Forum: Stockholm.
The Annotated Guide to the Complete UN Trafficking Protocol by the International Human Rights
Law Group, May 2002. www.hrlawgroup,org/initiatives/trafficking_persons/Conference Report of the two Transatlantic Workshops on Human Smuggling, organised by The
European Forum for Migration Studies at the University of Bamberg and the Institute for the Study ofInternational Migration at Georgetown University. Complied by Heckmann, F., Wunderlich, T., Martin,S., and McGrath, K.
http://www.uni-bamberg.de/projekte/humsmug/
International Human Rights Network’s joint NGO submission to the eight session of the Ad-Hoc
Committee on the Elaboration of a Convention against Transnational Organised Crime.
www.december18.net/jointsubVienna.htm

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