Why Definitions Matter

[UN-ACT]

Post by: Sebastian Boll, Regional Research Analyst at UN-ACT:

In a recent public online discussion, the ILO asked “What is forced labour, human trafficking and slavery? Do definitions matter, and why?” Over 2 weeks, the engaged debate saw contributions from UN agencies, civil society organizations, ILO constituents and others, with the majority arguing that distinguishing between such and related concepts does indeed matter.

A Bangkok Post article on 8 September highlighted in very practical terms why this is the case. The article titled “2 charged for trafficking Cambodians” refers to a Cambodian court charging two men for “trying to smuggle 23 people into Thailand to work.” It goes on to say that authorities “thwarted the pair’s attempt to take the workers across the border”, a service for which they had each paid $50. It concludes by pointing out that “the charges, of human trafficking, carry a maximum prison sentence of 15 years.”

Whilst more details are needed to fully understand the presented case, the interchangeable usage of ‘people smuggling’ and ‘human trafficking’ is a concern.

In the absence of any indications of exploitation against the migrants and with no apparent forms of deception or coercion, people smuggling cannot become human trafficking. This may be a case of incomplete or imprecise reporting, but there is also an issue of conflation in the Cambodian anti-trafficking law, with potentially severe repercussions for those wrongfully charged.

The country’s 2008 law on the “Suppression of Human Trafficking and Sexual Exploitation” does not as such define human trafficking and instead punishes associated acts, such as the “Unlawful Removal with Purpose” as stipulated in Article 10. According to this, “a person who unlawfully removes another for the purpose of profit making, sexual aggression, production of pornography, marriage against the will of the victim, adoption or any form of exploitation shall be punished with imprisonment from 7 years to 15 years.“

Article 10 is problematic at various levels, one of which is its insufficient recognition of the ‘means’ component, that is, the deceptive or coercive method of putting a person into a situation of severe exploitation, which is key to differentiating exploitation from human trafficking, except for in cases of child trafficking.

Another is the mixing of ‘purposes’ with various degrees of exploitative motives, some of which may have none. The exploitative dimension of the unlawful removal of a person for ‘profit making’ purposes may be non-existent, and it is precisely here that the conflation between ‘people smuggling’ and ‘human trafficking’ is given scope.

Using the above Bangkok Post example, it is perfectly feasible that the two men charged with human trafficking in a Cambodian court were engaged in people smuggling for profit as the article appears to suggest, but without any means of coercion or deception and no exploitative motives. Instances of this kind occur in significant numbers across the Greater Mekong Sub-region on a day-to-day basis and have little to do with human trafficking as defined in international law.

The conflation of distinct terms in the context of human trafficking is not exclusive to Cambodia and other examples could have been presented, including from the Greater Mekong Sub-region.

With international pressure high on countries to present quantifiable evidence for their anti-trafficking efforts, such as through the annual US State Department’s TIP report, there is a risk that more cases of irregular migration are presented as human trafficking, considering the scope presented by imprecise legal definitions.

The repercussions for people wrongfully charged with trafficking in persons are severe given the lengthy prison sentences, whilst the real perpetrators and beneficiaries of human trafficking are elsewhere and often remain beyond prosecution.

Going forward, a new National Plan of Action (NPA) on combatting human trafficking in Cambodia is currently being finalized, which includes clauses for the revision of relevant legal and policy provisions. UN-ACT, together with our partners in Cambodia, will be using the momentum generated by the new NPA and support the Cambodian authorities in aligning their national legislation on human trafficking with the relevant international conventions and protocols.

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