The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) defines trafficking as follows (Article 3.a): “[t]he 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 of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.
In international law, trafficking is thus established by the accumulation of three elements:
- an action (recruit, host, transport …)
- a means (threat, constraint, abuse of authority …). This is not applicable if the victim is a child.
- a purpose: the exploitation (of the child). This is the main distinguishing feature between trafficking and the sale of children.
When the victim of trafficking is a minor, the means become indifferent and the question of whether or not trafficking has occurred will depend solely on the action and the purpose of exploitation (Palermo Protocol, Article 3.c.). In French law, the conviction is also heavier for traffickers.
Trafficking and Smuggling
There are three main differences between trafficking and smuggling:
- The first difference is the transnational nature of the crime. The smuggling of people is necessarily transnational since it involves crossing a border. Trafficking can be transnational, but it can also be national and involve only one country. For example, a French victim can be exploited in France by French people.
- The second difference is consent. The smuggled person who passes from one country to another has generally consented to his/her displacement. In trafficking, the person has not consented to his/her exploitation, either because a means or circumstance renders his consent null and void, or because the victim is a minor and cannot consent to his/her own exploitation.
- Finally, the third difference is exploitation. In smuggling, there is not necessarily the purpose of exploiting the person who illegally crosses the border. Once he/she has crossed, the act is finished.
Trafficking can exist in combination of smuggling: one person can be a victim of trafficking before and/or after crossing the border.
The reality of trafficking
- Trafficking exists all around the world. France, where many networks are present, does not escape from this reality. Victims can be from any country, including a country of the European Union and therefore from France.
- According to a UNODC report, nearly one-third of the world’s victims of trafficking are children.
- Contrary to popular belief, trafficking concerns girls as well as boys, regardless of the type of exploitation.
- The figures are clear and irrevocable: minor victims of trafficking are becoming younger. For example, a study conducted by the ONDRP and MIPROF in 2015 found that some Nigerian child victims identified in situations of sexual exploitation in France were only 11 years old…