VISITING
EXPERT’SPAPERRESOURCE MATERIALSERIES
No.87
GLOBAL PROGRAMME AGAINST TRAFFICKING IN PERSONSMartin Fowke*!"#$%"&'(#)(%**+!"#$%&'()*#++$,-$%"($%(./*&0%&,-.+(-%./#-%"&0+-/#(&0+*/-%(123456,1&7#89#1&:%-;%(9&<=><* Officer-in-Charge of the Anti-Human Trafficking & Migrant Smuggling Unit, Division of Treaty Affairs, United Nations Officeon Drugs and Crime (UNODC).

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150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER!%'$1234#%()*#++$,-$%"(#%5(6$"*#%'(743""8$%"(9%$'? 23@AB&C;DD#(.C&E+*$+(&0.%.+C&.#&/*D"+*+-.F):/()*#++$,-$%"($%(./*&0%&(.*0'0,08
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RESOURCE MATERIAL SERIES No.87.3*C0&/&(0+(':/()*#++$,-$%"(.*0'0,08(- .#&D(+H+-.&%-I&L#*$%.&.(%KK/L8/-)1&!"#$%&'!"()$*+,"('"))-%)$.%').'/.0-%'"%1'*2$,1(-%'TUD+(C#-&;-I+(&>V&9+%(C&#K&%)+W- .#&D(#.+L.&%-I&%CC/C.&H/L./*C1&X/.J&K;""&(+CD+L.&.#&J;*%-&(/)J.C- .#&D(#*#.+&L##D+(%./#-&%*#-)&0.%.+&'%(./+C

STRUCTURE OF THE PROTOCOL
GENERALPROVISIONS

Article 5(2)(a)Criminalization

PROTECTION OF VICTIMSOF TRAFFICKING INPERSONPREVENTIONCOOPERATIONAND OTHER MEASURES

Article 6
Assistence to and protectionof victims of trafficking inpersons

Article 9Prevention of trafficking in persons

Article 7
Status of victims of
trafficking in persons inreceiving States

Article 10
Information exchange and training

Article 8
Repatriation of victims of
trafficking in persons

Article 11
Border measures

Article 12
Security and control of documents
Article 13
Legitimacy and validity of documents

96

FINAL
PROVISIONS

150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER

G/E(0H8$"#'$0%&(+0*(7'#'/(.#*'$/&*• B(/*/-%"/Y%./#-&
T7@BB&4(.Z&Q[&7,''&4(.Z&Q[&0@E'&4(.Z&\W• ]/L./*&D(#.+L./#T7@BB&4(.Z&<Q[&7,''&4(.Z&\[&0@E'&4(.Z&>\W• ,-H+C./)%./#• '(#C+L;./#• 4I^;I/L%./#-* Notwithstanding the fact that these countries are countries of origin, transit or destination

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• '(+H+-./#-&%-I&%X%(+-+CC&(%/C/-)&_

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RESOURCE MATERIAL SERIES No.87

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150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER

E#I;"+&>
Definitions:Trafficking in Persons andSmuggling of Migrants

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RESOURCE MATERIAL SERIES No.87

Definition of trafficking (Art. 3.a)Trafficking in persons shall mean:• [action:] the recruitment, transportation, transfer, harbouring, or
receipt of persons• [means:] by means of the threat or use of force, coercion,
abduction, fraud, deception, abuse of power or vulnerability, or
giving payments or benefits to a person in control of the victim• [purpose:] for the purpose of exploitation, which includes
exploiting the prostitution of others, sexual exploitation, forced
labour, slavery or similar practices, and the removal of organs.

Definition of trafficking/2 (Art. 3.b/c)• Consent of the victim is irrelevant where illicit meansare established• Consent of a child is irrelevant.
• Trafficking in children (any person under 18) does
not have to involve any of the specified means– (i.e. threat or use of force, coercion, abduction, fraud,
deception, abuse of power or vulnerability, or giving
payments or benefits to a person in control of the victim)

100150TH INTERNATIONAL SENIOR SEMINAR
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What is “smuggling of migrants”?
“…the procurement, in order to obtain, directly or indirectly, a financial orother material benefit, of the illegal entry of a person into a State Party ofwhich the person is not a national or a permanent resident”.
Article 3(a), United Nations Protocol against the Smuggling of Migrants by Land,
Sea and Air

Three Elements:– illegal entry of another person;– the other person is neither a national nor permanent resident of thecountry entered;– agreement to receive a financial or other material benefit.

Differences between trafficking and smuggling• Consent– The smuggling of migrants, while often undertaken in dangerous or
degrading conditions, involves migrants who have consented to thesmuggling. Trafficking victims, on the other hand, have either neverconsented or, if they initially consented, that consent has been renderedmeaningless by the coercive, deceptive or abusive actions of thetraffickers• Exploitation– Smuggling ends with the arrival of the migrants at their destination,
whereas trafficking involves the ongoing exploitation of the victims in somemanner to generate illicit profits for the traffickers.

• Transnationality– Smuggling is always transnational, whereas trafficking need not be.
Trafficking can occur regardless of whether victims are taken to anothercountry or only moved from one place to another within the same country.

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Trafficking vs. Smuggling
Trafficking

Smuggling• Crime or violation against aperson• Unauthorized bordercrossing – crime or violation
against a country or state• Contains element of coercion(cannot consent toenslavement)• Can include smuggling, plus
subsequent exploitation
and/or forced labor• Trafficked persons seen as
victims by the law• No coercion• Criminal income derived
solely from smuggling• Persons smuggled are notgenerally victims of crime

Three Elements of Trafficking

1

2

3

PROCESS

MEANS

END





102

How did the person getto where they are?
How did the person findout about the job?

What happened when
they arrived in thedestination country?
What was it like when
they started to work?



Was the person paid? How
much? How often?
Did the person try to leave
his/her job? What
happened?
Is the person afraid of
his/her employer? Why?

150TH INTERNATIONAL SENIOR SEMINAR
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Case Study 1: Human Trafficking or Smuggling?
• Samantha read an advertisement in the local paper
about work as a domestic helper in another country.
• She did not pay a fee at time of application.
• At the airport, she was given a passport andinstructions.
• A man and woman met her at the destination and took
her passport. They told her they would return it when
she has paid back the recruitment costs.

Cont.
• She is driven to the home where she will work.
• The man and woman and the new employer exchangemoney.
• The man and woman told Samantha she will be paid,
but has to pay for accommodation, food and recruitment
fees.
• Her debt increases as time goes on because she is paid
little and the cost of food etc. is high.
• She is physically abused for every mistake.

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RESOURCE MATERIAL SERIES No.87

Cont.
• Samantha works 7 days a week for 14 hours a day.

Case 1• What further questions do you have?
• Why is this trafficking?
• Or why is it not trafficking?

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Case 2• Peter runs a factory that weaves silk for dresses• Peter needs workers who can do the fine work for very
low wage• Peter asks Robert to find young boys to do the work.
• Robert goes to the country and finds Dino, a young boy.
• Robert tells Dino’s mother that Dino will be paid, havefood and a bed.
• Robert pays Dino’s mother a small sum for the boy.

Cont.
• Dino works at the factory with some older boys.
• He is given a weak stew most of the time.
• He sleeps on straw under the machines.
• He is paid a coin every week.

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RESOURCE MATERIAL SERIES No.87

Case 2: Is it human trafficking ?
• What are the elements?
• What questions do you have?

Case 3• Manuel sees an advertisement for travel to anothercountry for work in agriculture, factories, and the foodindustry.
• Manuel contacts the agency and learns there is a largefee. He learns that they will travel by truck to airplane
and that immigration documents will be provided.
• Manuel saved money from working and borrowed therest from his family and paid the agency.

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Cont.
• Manuel and ten others traveled by truck to a seaport.
• They waited there without food for two days and thenwere smuggled aboard a ship.
• The group traveled by truck and ships for 12 months.
• One day the truck doors were opened and the group
was told to get out and that they were on their own.
• No documents were provided to them.

Case 3: Is it human trafficking or smuggling?

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RESOURCE MATERIAL SERIES No.87

Case 4• Joy is from South-East Asia and recently lost her factoryjob.
• Joy is divorced and has two children to support.
• Joy hears of a job in a another Asian country in a hotel
as a cleaning woman.
• She drives across the border with her friend’s brotherand is put into a van with other women and men.
• The group travels for six days in vans, boats and vanscrossing several borders.

Cont.
• The women are sometimes locked in apartments andare always under guard.
• The women are now afraid.
• The women are forced to strip in front of a group ofmen.
• Joy is sold to a bar owner who tells her she must work
as a prostitute to pay off travel debts.
• The owner threatens her by telling her she will bearrested, beaten or sold to more dangerous men.

108

150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPERCont.
• Joy works every day for 12 hours and eats only once.
• She is fined for every infraction and has to pay for her
own clothing and food.
• Is this human trafficking?
• Why or why not?

E#I;"+&<

Indicators of Trafficking in Persons
and Smuggling of Migrants

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Why is Identification so Difficult?
• Fear• Isolation• Hidden crime• Blending in• Distrust

Identifying Survivors• Under control of
traffickers/pimps/gangs• Trained to tell lies and false stories• Distrust of law enforcement• Reluctant to engage with social
service providers• Change of location frequently• Difficult to tell age• False I.D.s

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Direct Reporting• To law enforcement• To NGOs• To others• To “good samaritans”• To Clinics, hospitals

Routine police activity• Traffic stops/accidents• Border crossings• Crime investigations• Investigation of sites of potential exploitation• Community policing• Advertisements• Embassies/consulates• Missing children cases

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Who Else Might Discover a Trafficked Person?
• Community organizations • Clinics/hospitals• Good Samaritans• Private attorneys• Consulates or embassies• Judges• Other trafficked persons• Customers/clients• Witnesses• Mental health service
providers• Faith basedorganizations• Domestic violenceadvocates

Possible Indicators

112•

Workers living on/near site in employer controlled
housing•

Restricted and controlled communication andtransportation•

No documents (held by someone else)•

Overly fearful•

Assumed identity/false documents•

Physically afraid, but attached to trafficker

150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER

Indicators cont.
• Inconsistencies in story• Lack of knowledge of a given community or location• Excess cash
• Hotel room keys
• Injuries/signs of physical abuse or torture• Chronic runaway/homeless youth

Indicators (cont.)• Presence of an overly controlling and abusive“boyfriend/husband”• Rehearsed story• Layers of abuse• Age• Gender113

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Indicators of Child Trafficking• No access to parents or guardians• Behavior not typical for age• No friends• No access to education• No time for play
• Skimpy clothing• Scared, unhappy• Know sex related words in local language

Indicators• Are not proof!
• Are the starting point for investigations– proactive investigations– reactive investigations

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Proactive activity• Targeted raids• Going in with other agencies such as labor or healthand safety inspectors• Identification of routes and planning operations attransport facilities• Surveillance and other proactive investigation
techniques• Planned border operations

Sexual exploitation
People who have been trafficked for the purpose of sexual exploitation may:•Be of any age, although the age may vary according to the location and the market•

Move from one brothel to the next or work in various locations•

Be escorted whenever they go to and return from work and other outside activities•

Have tattoos or other marks indicating “ownership” by their exploiters•

Work long hours or have few if any days off•

Sleep where they work•

Live or travel in a group, sometimes with other women who do not speak the same language•

Have very few items of clothing•

Have clothes that are mostly the kind typically worn for doing sex work•

Only know how to say sex-related words in the local language or in the language of the client
group

•

Have no cash of their own•

Be unable to show an identity document

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Forced Labour
People who have been trafficked for labour exploitation may:•Live in groups in the same place where they work and leave those premises infrequently,
if at all•Live in degraded, unsuitable places, such as in agricultural or industrial buildings•

Not be dressed adequately for the work they do: for example, they may lack protective equipment or
warm clothing•

Be given only leftovers to eat•

Have no access to their earnings•

Have no labour contract•

Work excessively long hours•

Depend on their employer for a number of services, including work, transportation and accommodation•

Have no choice of accommodation•

Never leave the work premises without their employer•

Be subject to security measures designed to keep them on the work premises•

Be subjected to insults, abuse, threats or violence•

Lack basic training and professional licences

Domestic Servitude
People who have been trafficked for the purpose of domestic servitude may:
• Live with a family• Not eat with the rest of the family• Have no private space• Sleep in a shared or inappropriate space• Be reported missing by their employer even though they are still living in theiremployer's house• Never or rarely leave the house for social reasons• Never leave the house without their employer• Be given only leftovers to eat• Be subjected to insults, abuse, threats or violence.

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Begging and Petty Crime
People who have been trafficked for the purpose of begging or committing petty crimes may:
• Be children, elderly persons or disabled migrants who tend to beg in public places and on public
transport• Be children carrying and/or selling illicit drugs• Have physical impairments that appear to be the result of mutilation• Be children of the same nationality or ethnicity who move in large groups with only a few adults• Be unaccompanied minors who have been “found” by an adult of the same nationality or ethnicity• Move in groups while travelling on public transport: for example, they may walk up and down thelength of trains• Participate in the activities of organized criminal gangs• Be part of large groups of children who have the same adult guardian• Be punished if they do not collect or steal enough• Live with members of their gang
• Travel with members of their gang to the country of destination• Live, as gang members, with adults who are not their parents• Move daily in large groups and over considerable distances

E#I;"+&\

International Cooperation

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International Cooperation
Mutual Legal
Assistance

Extradition

Transfer ofSentenced
Persons

Joint
Investigations

Confiscationof proceeds of
crime

Law
Enforcement
Cooperation

SpecialInvestigative
Techniques

Legal Basis• Extradition/MLA treaties:– Bilateral– Multilateral (regional)¥ Crime/Terrorism
conventions– UNTOC– UNCAC– 1988 Drug Convention– Terrorism conventions

Complementary source: domestic law of Requested State• Basis of reciprocity• Allowed under domestic legislation

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UNTOC• Very comprehensive regime for international cooperation:– Extradition (Article 16)– Mutual legal assistance (Article 18)– Transfer of sentenced persons (Article 17)– International cooperation for purposes of confiscation (Article 13)– Smuggling of migrants by sea (Migrants Protocol, Articles 7-9)

• All of these provisions apply to the Protocols once ratified

Extradition• The surrender by one State of a person present in its
territory to another State that seeks this person either:– for the purpose of prosecution or– for the purpose of enforcing a sentence•  Ultimately, it’s an act of the executive, not of the
judicial authority

Requesting
State

Surrender
Requested State
Request119

RESOURCE MATERIAL SERIES No.87

Extraditable Offences•••

Extradition Treaties:
A list added to the Treaty specifies which offences are covered; orConduct punishable under the laws of requesting and requested country by
imprisonment for a maximum period of at least x years or by a more severe penalty•••

International crime conventions such as UNTOC:
Offences under treaties are extraditable if accept as treaty base
Deemed as extraditable in existing treaties/included in future treaties••

Dual criminality: often required in domestic extradition laws
Conduct-based test: Facts must constitute an offence in both States, no matter how
those offences are qualified
Importance of ratifying international instruments: offences harmonized among
countries•

Extraditable offences under UNTOC
UNTOC Offences
Participation in an
Organized CriminalGroup
Laundering ofProceeds of Crime
Corruption
Obstruction of Justice
Other “serious crimes”
punishable by amaximum deprivationof liberty of at least
four years

120

TiP Protocol Offences
Trafficking in persons• If the offence involves
an organized criminalgroup and• The person is locatedin the territory of therequested State party

Migrant Protocol Offences
Smuggling of migrants
Fraudulent identity docs
Enabling illegal stay

Firearms Protocol Offences
Illicit trafficking
Illicit manufacture
Falsifying markings

150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER

Standard provisions re . extraditable offences
Offences deemed extraditable in existing treaties
and to be included in future treaties
Convention basis for extradition at discretion ofRequested State if treaty required
If not applying Convention as basis, seek toconclude treaties where appropriate
If no treaty required, recognize offences as
extraditable as between states parties

Extradition Process: Common Problems
Few Norms
in Extradition
Treaties

Bureaucratic
Slow
Cumbersome

Applicationof DualCriminality

Common Problems

Need for
Prima
Facie
Evidence

HighlyPolitical Final
Decision
Taken by the
Administration

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RESOURCE MATERIAL SERIES No.87

Standard provisions
Urges states to expedite
and simplify

If domestic law
permits offences,not political offence

Domestic law/treaty applies but

Guarantee of fair
process/protections

Provisional arrest
recognized

Extradition request – Content

122•

Follow the requirements of the requested State’s legislation•

Main elements:– Contact details of the authority submitting the request– Legal basis– Description, identity, location and nationality of the person sought– Statement of the facts– Legal qualification of the acts
– Summary of incriminating evidence– Arrest warrant or judgment– Guarantee of respect to the rule of specialty– Signature of issuing authority, date, official stamp– Annexes: Arrest warrant or judgement; Legal texts; Essential evidence•

Formal requirements: language and mode of transmission

150TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERT’S PAPER

Provisional arrest• If urgent, the judicial authority of the requested Statemay issue an order for provisional detention of a personsought pending receipt of the formal extradition request– Strict time limits for extradition request• Transmission of request for provisional detention ideallythrough:– Interpol– Directly to the competent authority

Grounds for Refusal
Extradition
Treaties
Nature of Offence¥Political offences¥Military law only

Characteristics ofOffence/Sentence¥Death penalty¥Persecution concerns¥Unjust or oppressive incircumstances

Procedural Grounds¥Autrefois acquis/convit
or double jeopardy¥Lapse of time

UNTOC

Domestic
Law
Constitution

Referral toExtradition
Treaties orDomestic Law

Law on Judicial
Cooperation

Special Provisions

Criminal Procedure¥ Discrimination
clause¥ Fiscal offence¥Extradite orprosecute own
nationals

Criminal Law

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Extradite or prosecute
Person sought for prosecution
by Requesting State

Refusal to extradite
on basis ofnationality

May allow Requesting Stateto prosecute if person
will be returned in order toserve sentence

Requested State shall submit tocompetent authorities forprosecution in same manner asother serious crimes

Extradite or prosecute
Person sought for purpose ofenforcing sentence by Requesting State

Refusal to extradite
on basis ofnationality

Upon application by the Requesting State
Requested State shall consider
the enforcement of the sentence imposedby the Requesting State

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Other grounds for refusal• Discrimination clause:– Can refuse if substantial grounds for believing request madefor purpose of prosecuting on basis ofsex/race/religion/nationality/ethnic origin/political opinion or
would be prejudiced• Fiscal matters:– Cannot refuse extradition on this ground• Political offence exception:– Terrorism treaties require that extradition not be refused forthese crimes• Consultation: State must consult before refusing

Extradition Best Practice – Implementation• Modern flexible domestic law which provides for interalia:• deeming/recognition of offences• use of Convention as a basis for extradition• simplified process/evidence for requests• full panoply of procedures, including provisional arrest• limited grounds of refusal

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Mutual Legal Assistance• Mechanisms by which States receive and provide
assistance to gather evidence for investigations andcriminal prosecutions•  Vital tool within the criminal justice system: throughrequest, one State authorizes another State to takemeasures, often coercive
Requesting State

Assistance

Requested State

RequestUNTOC – Legal Basis• Legal bases for MLA are the same as those alreadyidentified• UNTOC - Article 18:– Mini-treaty!
– If the parties are not bound by a treaty, then UNTOC
procedures apply– If there is a treaty, they can still agree to apply UNTOC
procedures

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UNTOC – MLA• Parties shall afford one another the widest measure ofmutual legal assistance• Applies to all offences in Convention and Protocols, if
ratified:– Where there are reasonable grounds to suspect offence istransnational in nature and involves an organized criminalgroup

Types of Mutual Legal Assistance
Service of
judicial
documents

Executionof searches,seizures, freezing

Examiningobjects & sites

Provideinformation &evidentiary items

Providedocuments
and records

Identify & trace
proceeds & property
for evidence

Taking evidenceor statements frompersons

Facilitating
voluntary
appearances

Temporarytransfer of persons
in custody+ ANY OTHER ASSISTANCE UNLESS PROHIBITED

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Making a Request
Form of requests

Content of requests¥Written record¥Language acceptable torequested State¥Urgent cases: orally with later
confirmation¥Best practice: use of modern
technology¥Checklist in Art. 18(15)¥Checklist for confiscation
requests: Art. 13(3)¥Additional info may berequested by requested
Party¥Best practice: priorconsultation before making arequestUNODC software: MLA Request Writer Tool

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Supporting the other State in prosecuting• Request to be executed in accordance with domestic
law of the requested State
BUT• Need to respect specific procedures described in therequest unless prohibited or impossible, so as not topose obstacles to the prosecution

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Grounds for refusal
Requirements not met,
prejudicial to essential
interests, would be prohibited
if domestic case

Execution may be refused
Reasons for refusal must be
given

Cannot refuse
on this basis

Offence considered to involve
fiscal matters

Dual criminality does not exist

Execution may be refused, but
State may still choose toprovide some or all assistancerequested

Before refusing or postponing
execution

Obligation to consult:possibility to agree on
conditional execution

MLA Best Practice – Implementation• Modern flexible mutual assistance legislation permitting:• use of Convention as a basis for mutual legal
assistance in the absence of a treaty• broad range of assistance measures• rendering of assistance in the absence of dual
criminality• limited grounds of refusal

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International cooperation for purposes of confiscation
 Art. 13 UNTOC: Sets out regime for international cooperation
regarding confiscation– One State enforces a confiscation order from another State or– One State obtains a confiscation order based on request by other State– Can also seek assistance of other State in tracing, freezing or seizing
assets in view of their eventual confiscation

Can seize and confiscate:
Proceeds of crime derived from offences covered by Convention
Property, equipment or instruments used to commit offences covered by
Convention

Smuggling of migrants by sea• States may call for assistance where vessels flying their flag orwith no nationality are suspected of smuggling migrants (Art. 8.1)
– If no nationality, can board and search• States may request permission to board and search vessels ofother States, where vessels suspected of smuggling (Art. 8.2)
– Must inform flag State results of search and can take appropriate
measures with authorization of flag State if evidence of smuggling found– States must designate national• authority for dealing with requests

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Communicate with your counterparts• International cooperation is greatly facilitated bycommunication!
• Informal, direct and spontaneous contacts (e.g.
tele/video-conferences)• Simplify and speed up procedures• UNODC can facilitate• inter-State cooperation

UNODC Assistance• UNODC has developed a variety of tools to facilitate international
cooperation:– Online directory of competent national authorities– Case Law Database– MLA Request Writer Tool
– Legal database• Training on international cooperation• Facilitating regional networks• Expert Working Group on International Cooperation a permanent
part of Conference of the Parties

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Contact• For more information about UNODC’s Anti-Human Trafficking
and Migrant Smuggling Unit, contact:• The Anti-Human Trafficking and Migrant Smuggling Unit
– UNODC
P.O. Box 500
1400 Vienna
Austria
Tel. (+43-1) 26060-5687
Fax. (+43-1) 26060-5983– http://www.unodc.org/unodc/en/human-trafficking/– Email: ahtmsu@unodc.org

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