Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union

Heli Askola (Hart Publishing, Oxford, Portland Oregon, Modern Studies in European Law, Volume 14, 2007 pp xix +218)

Trafficking in human beings (THB) is a hot political topic and it has become an even hotter legal issue since the adoption in 2000 of the United Nations Convention against Transnational Organised Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (adopted in Palermo, the choice of location for an instrument purporting to tackle organised crime proving, finally, that at least one person at the United Nations has a sense of irony).

THB is a worldwide phenomenon, and it goes well beyond the sex trade. People are trafficked for (forced) marriage, for adoption, for begging, to work in sweat shops and in the fields, to work as cheap or even unpaid domestic labour. There are even stories of people being trafficked for their organs a possibility expressly recognised in the Protocol. THB, then, is not just about enforced prostitution. Nor is it just about human rights (in fact it is arguably not about human rights at all, an issue to which I shall return below); first and foremost it is a serious criminal practice with major consequences for its victims. But it may also involve (apparent) breaches of labour law, immigration law and, sometimes, anti-prostitution laws by the trafficked person, a fact not lost on traffickers, who may use their victims’ apparent criminality to maintain control over them by threatening to report them to the authorities. That said, there is little doubt that an awful lot of THB is for the sex trade, and an awful lot of the victims are women and children.

If THB is a worldwide phenomenon, what is so special about the European Union? The EU matters because, in Europe, the law on trafficking is coming as much out of Brussels as anywhere else. The EU has adopted several important instruments relating to THB, most notably its Framework Decision on Combating Trafficking in Human Beings (2002) and its Directive on the residence permit issued to third- country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (2004). The Qualification Directive (2004), which is at the heart of EU law on international protection, is also relevant here. So Brussels has been busy, and remains so.

Heli Askola’s book focuses on one aspect of THB in the EU the legal response to women who are trafficked for the sex trade. While it does not address all aspects of THB, it does address the most notorious element of the whole sordid business, a business that has substantially entered the public consciousness in most parts of Europe, particularly the perception of a more or less constant ‘supply’ of young women from east-central Europe being moved west to satisfy the demand. Just take a walk down Oranienburgerstrasse in Berlin if you want to see it for yourself. THB is now so established as a fact of modern life (often globalisation gets the blame) that it appears increasingly in crime fiction, rather notably, for instance, in Stieg Larsson’s The Girl Who Played With Fire (Norstedts Fürlag, 2006; Quercus, 2009).

Askola’s book is based on the author’s doctoral thesis, submitted in 2005. There is no doubt that she identified a most topical subject and, furthermore, a difficult one in that she was dealing with a perpetually moving target. EU asylum and immigration policy was in a state of flux owing to a series of parallel developments and initiatives ordained by the Amsterdam Treaty, which in principle were supposed to be completed by 2005 (a time to which those trying to teach the subject looked forward like waifs in the desert eyeing a distant oasis), when the flood of initiatives and drafts emanating from the European Commission would hopefully cease of course it never did and we could get on with trying to get to grips with the law, for better or worse. So the book’s timing is actually rather good, although there continue to emerge from Brussels new initiatives on the matter such as the Commission’s proposal (March 2009) for a new Framework Decision on preventing and combating THB, which will eventually repeal the 2002 Framework Decision.

THB is often referred to as a violation of human rights for instance in the Preamble to the Council of Europe Convention on Action against Trafficking in Human Beings (2005) and the Background Note prepared by the Swedish Ministry of Justice in the context of the Swedish EU Presidency project ‘Towards Global EU Action against Trafficking in Human Beings’ (May 2009). But this can be misleading: THB is fundamentally a private criminal enterprise, just like theft, reckless driving and murder. In the absence of State involvement or complicity there is arguably no human rights issue until the victim is actually in the hands of the State, when human rights obligations with regard to the victim’s treatment, as well as international protection obligations, will clearly be relevant. The suggestion that THB is not a human rights issue tends to cause a certain amount of excitement amongst some human rights lawyers and NGOs. Askola addresses this matter in Chapter 6. She makes a forceful case for the inadequacy of existing human rights instruments in protecting victims of trafficking. I would agree with that, once the victim is in some way under the State’s protection. But the best thing about this chapter is that Askola does not assume that THB is a human rights violation; rather she looks very carefully at the arguments for the notion, concluding (p 141): ‘The real problem is thus not so much whether or not trafficking can be read implicitly to fall within existing human rights provisions, but that there seems to be little consensus, capacity, political will and pressure behind doing so with any consistency.’ There is much truth in this, but I would argue that the classification of THB as a human rights issue, without qualification, is also a problem: it is conceptually wrong and can have important practical ramifications.
There is a problem with much of the discourse on THB: one does not have to treat it as either a criminal law matter or a human rights one, when there are clearly elements of both. The act of trafficking is criminal. In addressing that crime, the State must take account of its own human rights obligations towards victims (and, indeed, traffickers). It in no way diminishes the concern we should rightly have for victims of trafficking if we accept that THB is a crime rather than a breach of human rights. In fact, one of the strengths of Askola’s book, apart from the rigorous analysis, is that she highlights some of the different facets of THB not only the human rights and criminal law dimensions, but also the links with migration (or rather, irregular migration). She is well aware of the complexity of THB and is not critical of anti-trafficking measures, like the Palermo Protocol, simply because they focus more on crime rather than human rights.

But there is much more to the book. Askola looks at the impact feminist writing has had on the response to THB and prostitution, and not only with regard to the law. Indeed, she highlights (p 40) the risk of confining analysis to the legal issues only that we end up looking only for legal solutions. This is particularly apt with regard to THB and, indeed, other forms of irregular migration. THB occurs because a market exists; furthermore the victims, vulnerable through poverty, ignorance and lack of family or local support, are more readily tricked into believing in a good life in western and central Europe (or Australia, or North America). The point is that the best criminal laws will not stop THB, and the most effective application of human rights law will not stop it either. Education , increased living standards, equal (and better there is no point in equal opportunities that are in themselves negligible) opportunities may all contribute to reducing vulnerability.

Askola deliberately confined her analysis to trafficking of women for sexual exploitation in the EU. That practice easily entails enough legal issues to justify her study. But much of what she writes is relevant also to trafficking of children and men, and not only for the sex trade, and not only in the EU: the men trafficked to work in sweat shops, the children trafficked for begging and the boys trafficked to work as camel jockeys in the Middle East.

This is an excellent book. It is well-researched, coherent and highly readable.

Main source: Ryszard Piotrowicz
DEPARTMENT OF LAW AND CRIMINOLOGY, ABERYSTWYTH UNIVERSITY; MEMBER, EUROPEAN COMMISSION’S GROUP OF EXPERTS ON TRAFFICKING IN HUMAN BEINGS

Author: international