Issues on the Law of Prevention of Trafficking in Persons

Abstract

In these short papers I answer some issues on the Law of Prevention of Trafficking in Persons and offer my critique on the existing literature by critically examining the element of consent of the Trafficked victim as opposed to what is provided in the Smuggling Protocol. I argue that the offence of Trafficking under the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime may not be as blurry as is identified by many and therefore the definition of Trafficking under Article 3 is a rather clear one where the intention and act of the accused can be identified in the definition to punish the offender and victim compensation can be achieved in this case. The intention can be identified as the intention to exploit. The intention can be established where any one of the 'means' in the definition of Trafficking are used by the suspect. The act of the suspect is to exploit by way of 'harboring' for example or exploit a victim by ‘transferring’. Therefore for example the offence of Trafficking is committed where the criminal commits the act of exploiting a person by way of harboring or transferring, along with the intention to exploit. This method of criminal justice satisfies the two requirements of the act and the intention as the elements of the offence of Trafficking under the Protocol. The intention of the criminal is established where the 'means' such as a threat or a form of coercion are used. In this case the definition of Trafficking in persons under Article 3 of the International Trafficking Protocol may not be identified as blurred at all as it is similar to any other defined criminal offence where the offence is defined with the intention and act of the accused. So there is no definitional challenge that a State party to the International Trafficking Protocol would face as the ‘exploitation of persons’ in the Preamble which is defined to include 'other forms of sexual exploitation' or 'slavery or practices similar to slavery' under Article 3 can reach international consensus as State parties conform to International Human Rights Law especially when it comes to forms of exploitation of women and children in their respective countries. The challenge is that a State party might not consider all forms of exploitation as coming under the offence of Trafficking due to the political, societal or cultural inhibitions of a State party. Therefore the Protocol to Prevent, Suppress and Punish Trafficking in Persons can be a politically relevant bargaining power for a State who abides by it and enacts domestic law to incorporate it through domestic legislation especially for Tier 3 countries.