The Domestic Legal Framework 

As discussed in the sections on the International Legal Framework and Regional Law and Standards, the United Nations, Council of Europe and European Union have all created legally binding documents that obligate States to adopt laws at the national level with the aim of prosecuting traffickers and protecting trafficked persons from further harm.  These international bodies have placed greater emphasis on the obligation of national governments to undertake law enforcement measures than provide victim services.  Therefore, the first legislative reform efforts have resulted in a number of countries in Central and Eastern Europe and the Commonwealth of Independent States(CEE/CIS) enacting legislation that criminalizes trafficking in persons.  More recently, efforts have been made to harmonize European immigration policy, specifically asylum law, with a view to providing trafficked persons with greater measures of protection in the destination country.  The United States has also introduced legislation, discussed in the section on victim protection and immigration law, which introduces specific visas for trafficked persons. 

Currently, regional organizations, such as the Organization for Security and Cooperation in Europe (OSCE) and the Stability Pact Task Force on Trafficking in Human Beings, are conducting cooperative projects, between international organizations, national government ministries and local NGOs, to provide assistance and services to victims.  Although signatories to the United Nations Trafficking Protocol are obliged to undertake measures to provide victims with assistance and protection, there are few laws at the national level regulating how such aid will be provided and to whom. 

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Resources on Domestic Legislation

Below are some resources which advocates may find useful in researching domestic anti-trafficking laws:

The Protection Project, a legal human rights research institute based at the Johns Hopkins University School of Advanced International Studies in Washington, D.C. hosts a site that includes a searchable Legal Library of national and international laws and case law.

The Organization for Security and Cooperation in Europe hosts a website with information about legislation on trafficking.  The Legislationonline site for trafficking includes links to United Nations law, Council of Europe Law and laws from 53 countries of the CEE/CIS region, Europe and North America.

UNICEF, the Office for Democratic Institutions and Human Rights (ODIHR) and UNHCHR published a report Trafficking in Human Beings in Southeastern Europe: Current situation and responses to trafficking in human beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova and Romania, in June 2002.  This report includes information about law reform, law enforcement and prosecution for the countries listed above.

The Reference Guide for Anti-Trafficking Legislative Review with a particular emphasis on South Eastern Europe, also published by the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, in September 2001, is a comprehensive guide to the types of legislation necessary for an effective anti-trafficking policy.  The Reference Guide is organized according to broad topics, prevention, prosecution and protection and assistance for victims, and provides examples of national legislation where possible.  The Reference Guide is less useful as a source for specific national law, but an excellent resource for advocates who are undertaking projects on legal reform related to trafficking in women.  The guide is also available in Russian: Руководящие Принципы по Пересмотру Законодательства против Торговли Людьми, and in Serbian: Priručnik za Reviziju Zakonske Regulative protiv Trgovine Ljudima.

The report Women 2000: An Investigation into the Status of Women’s Rights in the former Soviet Union and Central and South-Eastern Europe published by the International Helsinki Federation for Human Rights in November 2000 includes information about a range of women’s rights issues for 30 countries in the CEE and CIS region, and information on legal provisions on trafficking, where available. 

Guidelines on Criminal Law

Victims of trafficking may be subjected to a number of criminal acts, such as kidnapping, physical and sexual assault or imprisonment, all of which are prohibited under general criminal provisions.  Advocates should exert pressure on local government authorities to prosecute such criminal offenses when the victims are trafficked persons even when prosecution of the crime of trafficking is not possible. 

As mentioned above, many national governments’ first legal reform efforts on the issue of trafficking in persons is the creation of a distinct criminal offense.  The creation of domestic criminal law on trafficking serves a number of purposes.  First, the existence of a distinct offense of trafficking in human beings compels law enforcement authorities to address the problem.  As noted by human rights advocates, trafficking and the attendant criminal violations are infrequently prosecuted in countries without specific criminal provisions that address trafficking.  In some cases, trafficking in women is prosecuted under provisions that relate to smuggling or forced prostitution.  Because such legal provisions are limited, however, traffickers receive relatively low penalties that are not reflective of the scope of the criminal activity that takes place in trafficking cases and which are not effective as a deterrent.  Furthermore, victims themselves may face prosecution for illegal entry, illegal work or involvement in prostitution. 

Second, a clearly-defined offense of trafficking allows for prosecution of a range of activities, and not merely prostitution.  According to a 2001 Council of Europe report, for example, “No member state of the Council of Europe has made express provision under its criminal law for an offence of keeping domestic slaves” despite the fact that most domestic services in Europe are being fulfilled by female immigrants.  Most often, domestic servants, many of whom are subjected to intolerable working conditions and mistreatment, are treated under domestic law as illegal immigrants. 

Third, harmonized criminal law across nations allows for cross-border law enforcement cooperation in the investigation and prosecution of trafficking cases.  Because traffickers frequently move their victims from country to country and women are sold and re-sold in the trafficking process, it may be necessary for more than one country to provide information vital to the prosecution of a trafficker or trafficking ring.

Defining the Offense

The first step in the creation of criminal law on trafficking in persons is a clear definition of the crime.  The articulation of the meaning of ‘trafficking in persons’ in the 2000 UN Trafficking Protocol is the only legally binding international definition.  The definition is broad and describes the crime in detail, focusing on the conditions of forced labor and slavery-like practices, without required cross-border movement.  As Ann Jordan, Director of the Initiative Against Trafficking in Persons of the International Human Rights Law Group. a U.S. NGO, points out, however, the international definition is not appropriate for use in domestic criminal codes.  From The Annotated Guide to the UN Trafficking Protocol.  Such a broad definition of the crime contains many elements and some of the language is vague, both of which would make prosecution difficult. 

The International Human Rights Law Group suggests alternative language that could be used in a domestic criminal law:

Under this definition, prosecutors would not have to prove threat, coercion, abuse of power or other forms of fraud or deception.  The proposed definition focuses on the process of moving a person in order to hold them in conditions of forced labor or slavery as essential to the crime.  The proposed definition also eliminates undefined terms used in the UN Trafficking Protocol, such as “the exploitation of prostitution of others,” and “other forms of sexual exploitation,” referring only to broad categories of acts that are already defined as crimes in international and national law.

The OSCE takes a different approach from the International Human Rights Law Group, recommending that the definition of trafficking should include at least the three following elements:

From the Reference Guide for Anti-Trafficking Legislative Review with a particular emphasis on South Eastern Europe.

Scope of the Law

In some other respects effective criminal law should be more expansive than the provisions of the Protocol.  For example, the International Human Rights Law Group advises broadening the scope of domestic legislation in so far as who can be prosecuted.  Article 4 of the Trafficking Protocol states that its provisions apply to the prosecution of offenses that “are transnational in nature and involve an organized criminal group.”  As Ann Jordan, the author of the Annotated Guide to the UN Trafficking Protocol, indicates, the Protocol does “not cover trafficking by one or two persons or internal trafficking that has no international aspect.  . . . Also not covered is trafficking that is done entirely within a country by nationals of the country.”  Thus, effective domestic legislation should punish individual traffickers and organized crime groups for both cross-border and internal trafficking. 

Criminalization of Activities Related to Trafficking

The OSCE also recommends that all activities related to trafficking be criminalized.  Trafficking is often carried out by organized groups, which participate to varying degrees in various activities, such as recruitment, transportation, escort and accommodation of trafficked persons.  The most significant of these acts would likely be punished under criminal trafficking or organized crime laws, but lesser acts, such as the arrangement of employment or even the use of the services of a trafficked victim, may not now be sufficient to establish criminal liability.  In addition, trafficking is facilitated by acts of omission, such as border guards who ignore the activity.  A strong criminal law should also recognize such failures to act as abetting the trafficking process.  Thus, the OSCE recommends the following: that States “establish all activities related to trafficking as criminal offences (such as instigating, aiding, abetting, attempting, omission to act against and conspiracy to traffic), . . . specifically establish the activities of organized criminal groups involved in trafficking as a criminal offence [and] . . . ensure that trafficking cases involving public officials are prosecuted and involve not only disciplinary consequences, but also sanctions under criminal law.”

Non-criminalization of Trafficking Victims

Another important and basic consideration in drafting criminal law provisions on trafficking is to ensure that the trafficking victim is not punished for her connection to the trafficking.  Provisions intended to punish accomplices to the offenses that comprise a case of trafficking should never be used to prosecute the victim.  Thus, legislation should be drafted with the clear intent of punishing the trafficker(s).  Trafficked persons are often treated by national law enforcement as criminals, both in countries of destination and origin.  In destination countries, victims are most likely to be prosecuted for immigration violations, violations of employment law and for involvement in prostitution.  If returned to their home country or country of origin, trafficking victims could face prosecution for using false documents, illegally leaving the country or for having worked in the sex industry.  The OSCE makes two broad recommendations to protect trafficked persons from criminal prosecution: that States not prosecute victims for “trafficking-related offenses” (i.e. using false documents or working without authorization) and that if trafficked persons are prosecuted for crimes committed during the period in which they were trafficked, they be afforded a legal defense of having been subjected to psychological coercion, physical force or threats when committing the crime.  The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, for example, states that “Victims of severe forms of trafficking should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked, such as using false documents, entering the country without documentation, or working without documentation.”  (Sec. 102 ((b)(19)).

Guidelines for assuring the protection of trafficked persons are discussed in more detail below, and are also enumerated in two documents:

The Recommended Principles and Guidelines on Human Rights and Human Trafficking, issued by the UN High Commissioner for Human Rights (2002) and

The NGO-created Human Rights Standards for the Treatment of Trafficked Persons by the Global Alliance Against Traffic in Women, Foundation Against Trafficking in Women and the International Human Rights Law Group (1999).

Legislation on Prostitution / Commercial Sex Work

The UN Trafficking Protocol deliberately left the terms “exploitation of the prostitution of others” and “sexual exploitation” undefined.  This was necessary to achieve consensus among the signatory countries.  It allowed for the existence of different domestic law and policy on adult sex work.  The Trafficking Protocol intentionally does not take a position on whether non-coerced adult sex work should be criminalized.  There is currently much debate over the issue of legalizing and regulating prostitution at the national and international level. 

Many advocates and activists argue that all forms of prostitution exploit women and stem from structural inequalities between women and men.  Thus, the criminalization of “forced prostitution” only implies that some forms of prostitution are legitimate and it gives sex traffickers a defense to prosecution if they can prove the victim consented to become a prostitute.  Others advocate for a decriminalization of prostitution, when it is entered into voluntarily, with economic and labor regulations applying.  Germany and the Netherlands have taken this approach. 

Sweden’s approach is to outlaw the buying of sexual services but not the selling.  According to Swedish law, it is a crime to purchase sex.  In a 2002 recommendation by the Parliamentary Assembly, Recommendation 1545 (2002), the Council of Europe urges governments of member States “to make trafficking in women or to knowingly use the services of a woman victim of trafficking a criminal offence under national law, and to strengthen legislation and enforcement mechanisms which punish traffickers and clients of women who are victims of trafficking.”  Any legislation that addresses prostitution or commercial sex work must be drafted in such a way to ensure that trafficked persons are not prosecuted. 

Guidelines on Victim Protection and Assistance

Effective anti-trafficking policies include not only the prosecution of traffickers but also protecting the rights of trafficked persons.  International legal instruments, at both the UN and European level, outline a broad range of interrelated measures that national governments should undertake to protect and assist trafficking victims.  While much effort has been made to harmonize criminal legislation and facilitate cooperation of law enforcement agencies across borders, the same is not necessarily true for the provision of victim services.  As Ann Jordan, Director of the Initiative Against Trafficking in Persons of the International Human Rights Law Group, points out “the [UN] Trafficking Protocol treats law enforcement as a shared responsibility of all governments but it treats victim issues as the individual responsibility of governments.”  At the regional level, however, organizations like the Stability Pact Task Force on Trafficking have called upon governments of European countries to focus on protection of trafficked persons through a “regional network of counter-measures,” which would involve cross-border communication and cooperation.

The range of recommended measures is extensive, and advocates who are working to create legislation on the provision of services should analyze the specific needs of victims in the country.  There are, however, general guidelines about victim protection and assistance that should be incorporated into any draft laws.

Victim Protection and Immigration Law

First, domestic legislation should ensure that all trafficked persons, not just those who act as witnesses, are afforded protection.  The UN Trafficking Protocol makes no distinction between trafficked persons who act as witnesses and those who do not in its provisions regarding State obligations to protect trafficking victims.  (Article 6).  The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, states that victims of severe forms of trafficking are eligible for certain protections.  (Sec. 107).  Regulations explaining the Trafficking Act, the Interim Rule on Protection and Assistance for Victims of Trafficking (28 CFR Part 1100) state, however, that the Trafficking Act “requires that all victims of severe forms of trafficking in persons be protected while in federal custody.  . . . victims of severe forms of trafficking in persons who are potential witnesses to trafficking in persons and whom federal law enforcement officials seek to keep in this country in order to prosecute traffickers also receive necessary protections, even when the victims are not in custody.”  This language could be interpreted to exclude those trafficking victim who could not assist in the prosecution of traffickers.

Victim protection should also include the protection of the trafficked person’s privacy and assurance of confidentiality.  The UN Trafficking Protocol obligates States “in appropriate cases and to the extent possible under domestic law, . . . [to] protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential.”  (Article 6).  When victims’ identities are revealed, they are placed in danger of retaliation by the trafficker.  One likely scenario is that the government reveals the names of trafficked persons when they are deported, if such information is made public record.  Furthermore, in cases when victims must be identified, as in the case of victims who testify or otherwise aid in prosecution, the Initiative Against Trafficking in Persons of the International Human Rights Law Group recommends that the government be prepared to grant residency to the victims and, in some cases, to family members as long the risk of retaliation exists.

The ability of a government to provide protection for victims is closely connected with how the trafficked person is viewed under domestic immigration law.  When victims are deported from a destination country as a result of having violated immigration laws, their safety cannot be assured.  Such victims may be re-trafficked or harmed by traffickers in retaliation.  In addition, many victims face serious risk if they are returned home or to their country of origin.  Victims of trafficking can be granted some level of protection through immigration policies that allow them to remain in the destination country.  The OSCE recommends that States refrain from immediate expulsion of trafficked persons based on their irregular residence status.  Instead, States are urged to grant victims at least temporary residence permits, without regard to whether the victim agrees to give testimony in criminal proceedings.  In particularly dangerous situations, permanent residency may be warranted.  The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, is an example of legislation that includes provisions for temporary residence.  The Victims of Trafficking and Violence Protection Act amends the U.S. Immigration and Nationality Act, creating the T and U visa categories, which do not confer immigrant status but allow victims of trafficking to remain in the U.S. temporarily with the possibility of lawful permanent residence status in the future.  The T and U visas differ in scope and availability. 

In brief, to be eligible for a T visa, the victim must meet at least following requirements:

In brief, to be eligible for a U visa, the victim must meet at least following requirements:

An alternative basis for providing protection for victims of trafficking is to recognize their status as grounds for asylum.  The interconnections between trafficking, smuggling and asylum policy are currently a topic of debate within the European Union.  In recent years, the European Union has been undergoing a process of harmonizing its asylum procedures for member States.  Differences still exist, however, in the types of benefits that asylum applications receive in EU countries, but generally changes in asylum law have aimed at tightening regulations to limit the number of asylum seekers.  Human rights activists have argued that these regulations have neither enhanced refugee protection not resolved the problem of trafficking in Europe, but instead undermine existing human rights standards, including the right to asylum.  A recent UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? identifies three possible connections between trafficking and asylum- meaning, that refugees become involved with traffickers or involvement in the trafficking process itself can give rise to an asylum claim:

(1) Traffickers target vulnerable group, such as refugees in camps, many of which are women and children.  The International Organization for Migration reported that traffickers in organized criminal groups abducted young women from refugee camps in Albania during the conflict in the former Yugoslavia, with the intention of forcing them into prostitution in Western Europe.

(2) Because refuges, or persons who have suffered persecution, have few options to leave their home country, they may engage the services of a trafficker, knowingly or unknowingly, at the beginning of the journey or while in transition.

(3) The trafficked person may qualify for refugee status on the ground of persecution inherent in trafficking.  This scenario is particularly likely to occur in the case of women who are trafficked into forced prostitution.

From UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? by John Morrison and Beth Crosland, April 2001 (No. 29).  This paper can be accessed from the UNHCR website under “Research,” “Evaluation and Policy Analysis Unit,” and “New Issues in Refugee Research.”  A pre-publication version of this paper is also available through the website of the European Council on Refugees and Exiles.

From UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? by John Morrison and Beth Crosland, UNHCR Policy Research Unit, April 2001 (No. 29).

Victim Assistance

The obligation of national governments to provide services to assist victims of trafficking is set forth by the United Nations and at the European level.  International legal documents call for the provision of housing, medical and psychological aid, legal assistance and employment or vocational training, if necessary.  The extent to which the government must provide such services is not prescribed, but generally trafficking victims should be offered assistance that is comparable to that which would be required by a victim of other forms of gender-based violence, such as domestic violence.  The UN Trafficking Protocol anticipates that there is variation across countries as to the extent to which services can be offered and thus its provisions are to be implemented progressively, to the greatest extent possible. 

Anti-corruption legislation

Trafficking is greatly facilitated in many countries by corrupt government officials.  In some cases, individual government agents, such as border guards, police officers or court officials, participate in or benefit directly from trafficking.  Government corruption may take the form of receiving bribes from traffickers or profits from the trafficking industry, cooperation with traffickers or refusing to provide trafficking victims with assistance.  An effective anti-trafficking policy at the domestic level must include laws under which to prosecute corrupt officials and mechanisms by which corruption can be investigated.  For example, the creation of internal affairs departments within the government structure is an example of a policy change.  The prosecution of members of the government who are found to have been complicit in trafficking, either under existing criminal laws or specific trafficking laws, is also vital in prevent trafficking. 

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