Human trafficking is a crime against a person’s human rights; the most agreed upon definition comes from Article 3 of the Palermo Protocol. It states, ‘Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons’, regardless of age, through threats or any form of coercion for the purpose of exploitation. This exploitation can take on the form of sexual exploitation, forced labour, slavery, servitude, child begging, or removal of organs, among others.
The definition contained in the Palermo Protocol was the result of arduous negotiations, mainly arising from the controversy regarding the status given to prostitution. In the end, the definition included a wide enough margin that allowed Member States to, on the one hand, ratify the Convention without entering into contractions with existing local legal frameworks (in reference to the exercise of prostitution or sex work). On the other hand, it allowed for local legislative debates to take place without any restrictions in this regard.
The definition of human trafficking included in the Palermo Protocol reflects the enormous complexity of the phenomenon that it tries to capture. Based on the International Organization for Migration (IOM), the definition of trafficking is structured in relation to three basic elements: actions, means, and purpose. Actions consist of recruitment, transportation, transfer, harbouring, and receipt of persons. Means include threats, coercion, fraud, deception, abuse of power, or a position of vulnerability. The purpose of those actions executed through those means is always exploitation (sexual or labour, removal of organs, servitude, and forced marriage, among others).
Trafficking is also seen as a process consisting of stages which are usually marked by threats, violence, coercion, and even confinement. Often, the perpetrator coerces the victim by generating debts from transportation, all types of violence, threats to them or their families, and withholding documents, etc. This direct coercive action to exploit the victim is what differentiates it as human trafficking and establishes it as a crime (for example, in contrast to precarious or low-paid work). The protocol does not refer to the person’s nationality or crossing of international borders. In other words, the transportation can be within a country and involve national citizens (internal trafficking), or it could occur between countries and affect foreign nationals in countries of destination and exploitation (international trafficking).
A veces, suele referirse a la trata de personas como tráfico humano. Esta confusión puede venir de la traducción de trafficking in persons y human trafficking, que corresponden a las expresiones en inglés para trata de personas. Aunque en determinados contextos pueda entenderse que se refiere al delito de trata de personas, el uso de la expresión tráfico humano no es correcta, ya que combina los dos delitos, trata y tráfico. También se utiliza con frecuencia la expresión trata de blancas, cuyo uso está desactualizado y es incorrecto, pero que se instaló porque hace referencia directa a la trata de mujeres con fines de explotación sexual.
Article 3 of the Protocol establishes that if actions constitute this crime, the consent of the victim shall be irrelevant. In a context where prostitution and trafficking conflate, many women who work as sex workers might be considered victims in the framework of actions against trafficking. According to the regulations of each country, the declaration of willingness in the exercise of prostitution or sex work can be taken into account. However, the ability to identify if a situation involves consent or coercion, and what criteria are appropriate to establish that distinction, is the source of debate. Therein lies the difference between, for example, sex work versus trafficking for the purpose of sexual exploitation. This is also the reason that proponents of people’s right to exercise sex work reiterate the importance of differentiating these concepts.
Finally, some sectors have begun employing survivors of trafficking in place of victims of trafficking to avoid re-victimizing and, instead, emphasize the person’s ability to overcome the condition of victim. In light of this, other sectors indicate that avoiding the use of victim to refer to trafficking might, in fact, render it invisible. And, further, that in the realm of discourse, this does not enable understanding and addressing the crime as what it really is, a serious human rights violation.
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