Human trafficking constitutes of fraudulently, coercively, or deceptively obtaining people with the sole objective of exploiting them; either sexually or through forced labour. Human trafficking is a global phenomenon, where poverty-stricken and socio-culturally (though not always) deprived individuals from developed, developing and underdeveloped nations are the victims. The demographic profile of the victims showcases a large number of them are females subjugated to sexual exploitation, which is, however, subject to data-obtaining bias as it is the most visible form of exploitation and is also frequently reported. Looking at the entire spectrum, human trafficking includes children, men and women involved in domestic or industrial servitude, sex trade, organ removal rackets, compelled marriages, begging and even as recruits for warfare. It is a highly organised crime that transcends national boundaries. Operating trafficking groups are well equipped to source vulnerable individuals belonging to brittle socio-economic groups, transport them across nations and exploit them in countries where they reap maximum profits. Often they are recruited from Asia, the destination being Europe. The Americas constitute both source and destination of trafficking. Another concept that is closely related to and often overlaps with human trafficking is smuggling of migrants. Recruiters deceptively convince economic migrants to assent to their demands in the hope of better a life in another country but find themselves deprived of their identification documents and in a midst of an exploitative situation in another country where they don’t even know the language of the land. This makes it gravely difficult for states to filter labour migrants from victims of trafficking and even more so when it comes to the perpetrators. Countries such as Thailand and Malaysia have often refused to host asylum seekers from Myanmar, Bangladesh and Pakistan fearing a breeding ground of smuggling of narcotics and human trafficking in their countries.
The United Nations Office on Drugs and Crime stand as the custodian to United Nations Convention on Transnational Organized Crime (UNCTOC) and its protocols on trafficking in persons and migrant smuggling which is the only legal instrument at an international level to combat human trafficking. This garners attention to the role of law enforcement in organised crimes such as human trafficking. The UNCTOC merely asks for state cooperation in tackling transnational organised crime groups but does not specify how a state is to go about it as it is left to the discretion of domestic courts. The International Criminal Court fiercely espouses the protection and guarantee of human rights and has jurisdiction to prosecute crimes against humanity. The International Criminal Tribunal for Former Yugoslavia has tried cases of enslavement as they constitute crimes against humanity and in the aftermath of the Kunarac case (Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 February 2001), it has stated that nuance of human trafficking assimilates to the broader subset of enslavement. However, for International Criminal Tribunals or for International Criminal Court to prosecute such cases it is imperative for perpetrators to show state-like characteristics and exercise systematic and political duress over collective civilian population to establish jurisdiction. Highly organised, transnational crime groups fall outside this scope as it is practically not feasible for them to establish features of an institution and garner agreement among the legal fraternity if at all they manage to do so, and thus remain with impunity. It has become the prerogative of domestic courts to try cases of human trafficking; which is subject to the law of the land. It is hence essential that countries have enough measures for legal redressal for victims which entail harmonization of the jurisdiction of courts to try transnational crimes that are not state-sponsored, provisions that articulate crimes that are constituent elements of human trafficking and ratification to international standards committed to the protection of individuals against such crimes. Though the UNCTOC has substantive measures that recommend how states can foster cooperation with one another without a spat over jurisdiction or double criminality, it seldom translates into practical reality.
Written By: Dikshita Baruah, A student of GLC, Mumbai as part of the Internship Program