Human Trafficking, Conflict and Justice: Labels and Remedies
The word “trafficking” is often associated with the illegal trade of various products. When the product is a human being, however, the issue becomes more complex, as the object of the criminal trade is also a subject of human rights. Nevertheless, while the protection of persons is the protagonist of anti-human trafficking discourse, it assumes only a secondary role in specialised international legislation.
This is evident in the principal international legal instrument addressing human trafficking, the Palermo Protocol. As the name suggests, the Protocol supplements the United Nations Convention against Transnational Organised Crime. Accordingly, it focuses on the criminalisation aspect of human trafficking, which Article 3 of the instrument famously defines as:
“the recruitment, transportation, transfer, harboring 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.”
Although this definition hints at the protection of persons against exploitation, the scope of application described in Article 4 limits the Protocol’s operation to the prevention, investigation, and prosecution of offences. In contrast, the regulation of victim protection, briefly presented in Article 6, uses language suggesting that Member States can retain discretion in its implementation. Ultimately, the provisions of the Protocol are enforceable only within the domestic criminal justice systems of Member States.
This approach can be particularly problematic in contexts where state mechanisms are unreliable or compromised, such as armed conflicts and similar humanitarian crises, where human trafficking has been persistently present and has been described by scholars such as Martin and Callaway (2009) as “inextricably linked” to conflict. This concern was echoed by the UN Security Council, which adopted two Resolutions (S/RES/2331- 2016 and S/RES/2388-2017), recognising that trafficking in persons during armed conflict can amount to a war crime. The provisions of these resolutions, however, apply only to human trafficking with a nexus to armed conflict and exclude the frequent cases of trafficking in persons without belligerent motivation, as well as those arising in comparable humanitarian crises that do not qualify as armed conflict under international law, such as public security breakdowns and civil or political unrest.
This formal distinction, based on purpose and its consequent impact on victims’ access to justice, raises important questions about the provision of effective remedies for victims of human trafficking within existing international legal frameworks, especially in terms of their availability and adequacy. It raises the question: what does justice look like when state mechanisms are unreliable and international mechanisms are unavailable?
About the Author
Maria Valoes Fontenele is a doctoral researcher at the University of Turku. Her research focuses on exploring the empirical repercussions of legal fragmentation in the realisation of justice for victims of human trafficking in humanitarian emergencies.
