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16 JFin Crime 160
16 JFin Crime 160
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Abstract
Purpose - During the last ten years, the International Labour Organisation (ILO), and some other
international organizations, have increasingly addressed human trafficking from a "forced labour"
perspective. The purpose of this paper is to clarify the terminology in relation to human trafficking
and forced labour, to highlight the links between them, and to provide a critique of the ILO approach.
It also aims to make the case for the implementation of a specific international instrument to address
the link between trafficking and forced labour.
Design/methodology/approach - This paper compares the definitions of human trafficking and
forced labour, the link between them in the United Nations, European and ILO instruments.
Findings - Although human trafficking is a criminal activity, the ILO identifies it as a form of forced
labour. The paper concludes that, no matter what role the trafficking victims have in participating in
the criminal activities, they should be viewed as victims and witnesses. They should not be viewed as
"workers" or "labourers". Any minor under the age of 18 years, in accordance with the European and
international instruments, has no legal capacity to give consent to being exploited.
Originality/value - This paper argues that the international and European instruments do not
specifically address the link between trafficking and forced labour. There is a need for a specific
international instrument prescribing the link between trafficking and forced labour. In the absence of
such an international instrument, there is a piece meal approach by international bodies and countries
toward the regulation of trafficking and forced labour.
Keywords Labour, Human rights, Crimes, Laws and legislation
Paper type Viewpoint
1. Introduction
Human smuggling and trafficking have become a world-wide industry that
"employs" millions of people and has an annual turnover of billions of dollars
(Vayrynen, 2003).
Modern trafficking and modern forms of bondage are linked through indebtedness,
which makes trafficking a form of forced labour. Forced labour as such has not really
caught the world's attention. It takes different forms and their common features might
Journal of Financial Crime seem abstract at first glance. However, forced or compulsory labour makes headlines
Vol. 16 No. 2, 2009
pp. 160-165 almost daily in stories of trafficking in persons, imprisonment in sweatshops and the
©Emerald Group Publishing Limited
1359-70790
slavery-like conditions on some plantations and even in private homes (Anti-Slavery
DOI 10.1108/13590790910951830 International - ASI, 2003).
2. Human trafficking Human
2.1 Definition of trafficking trafficking and
Official definitions of human trafficking are provided by the United Nations' (UN)
Protocol against the smuggling of migrants by land, sea and air and the UN Protocol to forced labour
suppress and punish trafficking in persons, especially women and children.
The protocols are supplements to the so-called Palermo Convention or more
specifically the UN Convention on Transnational Organised Crime adopted by the UN 161
General Assembly on 15 November 2000.
Trafficking refers to the:
[...] recruitment, transportation, transfer, harbouring or receipt of persons, by means of
threat 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, sexual exploitation, labour exploitation,
slavery or practices similar to slavery, servitude or the removal of organs.
3. Forced labour
In its original convention on the subject, the Forced Labour Convention, 1930 (No. 29), the
International Labour Organisation (ILO) defines forced labour for the purposes of
international law as "all work or service which is exacted from any person under the menace
of any penalty and for which the said person has not offered himself voluntarily" (Art. 2(1)).
The other fundamental ILO instrument, the Abolition of Forced Labour Convention,
1957 (No. 105), specifies that forced labour can never be used for the purpose of economic
development or as a means of political education, discrimination, labour discipline,
or punishment for having participated in strikes (Art. 1). The Abolition of Forced Labour
JFC Convention, 1957 (No. 105), supplements rather than revises the earlier instrument. This
convention clarifies certain purposes for which forced labour can never be imposed, but
16,2 does not alter the basic definition in international law (ILO, 2005).
Convention (No. 29) provides for certain exceptions, in particular with regard to military
service for work of a purely military character, normal civic obligations, work of prisoners
convicted in a court of law and working under the control of a public authority, work in
162 emergency cases such as wars or calamities, and minor communal services (Art. 2(2)).
Forced labour cannot be equated simply with low wages or poor working conditions.
Nor does it cover situations of pure economic necessity, as when a worker feels unable to
leave a job because of the real or perceived absence of employment alternatives. Forced
labour represents a severe violation of human rights and the restriction of human
freedom, as defined in the ILO conventions on the subject, the UN instruments on
slavery, practices similar to slavery, debt bondage or serfdom and in European
instruments (ILO, 2005).
The ILO's definition of forced labour comprises two basic elements: the work or
service is exacted under the menace of a penalty and it is undertaken involuntarily
(ILO Convention, 1930 (No. 29)). The work of the ILO supervisory bodies has served to
clarify both of these elements over the last 75 years.
The penalty does not need to be in the form of penal sanctions, but may also take the
form of a loss of rights and privileges. Moreover, the menace of a penalty can take
multiple different forms. Arguably, its most extreme form involves physical violence or
restraint, or even death threats addressed to the victim or relatives. There can also be
subtler forms of menace, sometimes of a psychological nature. Situations examined by
the ILO have included threats to denounce victims to the police or immigration
authorities when their employment status is illegal, or denunciation to village elders in
the case of girls forced to prostitute themselves in distant cities. Other penalties can be of
a financial nature, including economic penalties linked to debts, the non-payment of
wages, or the loss of wages accompanied by threats of dismissal if workers refuse to do
overtime beyond the scope of their contract or of national law. Employers sometimes
also require workers to hand over their identity papers, and may use the threat of
confiscation of these documents in order to exact forced labour (ILO, 2005).
Freedom of choice, the ILO supervisory bodies have touched on a range of aspects
including: the form and subject matter of consent; the role of external constraints or
indirect coercion; and the possibility of revoking freely given consent. Here too, there
can be many subtle forms of coercion. Many victims enter forced labour situations
initially of their own accord, albeit through fraud and deception, only to discover later
that they are not free to withdraw their labour. They are subsequently unable to leave
their work owing to legal, physical or psychological coercion. Initial consent may be
considered irrelevant when deception or fraud has been used to obtain it (ILO, 2005).
References
ASI (2003), "Programme consultation meeting on the protection of domestic workers against the
threat of forced labour and trafficking", paper prepared for Anti-Slavery International by
Lin Chew, in Cooperation with the ILO's Special Action Programme to Combat Forced Labour,
available at: www.antislavery.org.uk/homepage/resources/Anti-Slavery%20domestic%20
workers %20discussion %20paper%
Bakirci, K. (2007), "Child pornography and prostitution: is this crime or work that should be
regulated", Journalof FinancialCrime, Vol. 14 No. 1.
ECPAT International (2004), End Child Prostitution, Child Pornography and Trafficking of
Childrenfor Sexual Purposes,ECPAT International, Bangkok, available at: www.ecpat.net
Ellerman, D. (2002), "Trafficking of women and children in the United States", available at: www.
polarisproject.org/polarisproject/Brandeisl.htm
ILO (2005), A Global Alliance Against ForcedLabour, ILO, Geneva.
IOM (2004), InternationalMigration Law, Glossary on Migration, IOM, Geneva.
US Department of State (2004), Trafficking in Persons Report, State Department Releases, June,
US Department of State, Washington, DC.
Vayrynen, R. (2003), "Illegal immigration, human trafficking, and organized crime", Discussion
Paper No. 2003/72, UNU Wider, Helsinki.
Corresponding author
Kadriye Bakirci can be contacted at: bakirci@itu.edu.tr