Establishing the Constituent Elements of Trafficking in Persons: Conceptualizing “Transnationality” and “Involvement by an Organized Criminal Group"

Abstract

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocal) established an internationally agreed upon definition of the crime of “trafficking in persons” under its Article 3. By virtue of this definition, the crime of trafficking in persons is substantiated when an “act” (recruitment, transportation, transfer, harboring, or receipt of persons) is committed by way of a “means” (the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person) for a purpose of exploitation. This protocol is subject to its parent instrument, the United Nations Convention against Transnational Organized Crime (CTNOC). The CTNOC notes that it extends to offenses which are transnational in nature and involve an organized criminal group. It therefore appears that the CTNOC imposes additional elements forming part of the crime of trafficking: that the offense be transnational in nature and involve an organized criminal group. Whether these are required elements is a discrepancy found throughout trafficking scholarship and has been identified as a point of unresolved contention. The lack of clarity regarding the definitional contours of this offense means that there is potential for issues in the investigation and prosecution of trafficking. In an effort to bring clarity to the constituent elements of trafficking, this contribution uses a textual analysis to show that, despite some language suggesting that trafficking is strictly a transnational organized crime, the codified definition is not limited to offenses which are transnational, and nor does it require the involvement of an organized criminal group.