The "Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime" (Palermo Protocol) of the UN, which was signed in 2000, provides a comprehensive definition of human trafficking that has been used as a basis for all further international declarations on this topic since.
Human trafficking means the recruitment of persons by means of threats, deception, violence or abuse of power, and forcing them to take up or continue in an occupation which is exploitative or similar to slavery. It does not necessarily always involve the crossing of national borders; the exploitation of a person in a difficult or vulnerable situation within a country can also be understood under the term human trafficking.
There is a strong connection between human trafficking and the complex problems caused by worldwide movements of migrants and refugees as a result of global social inequalities and the restrictive immigration and labour market policies of nation states. As a consequence, in addition to the criminal justice element, the human rights perspective is now becoming increasingly important in international debates on this issue. NGOs and quasi NGOs working to combat human trafficking have been campaigning for a stronger human rights orientation for over 20 years.
The situation of people affected by human trafficking is characterised by the fact that they live and work under conditions which are similar to slavery. They are able to exert little to no influence over their working conditions. They can be ruthlessly exploited and serve only the profit-making ambitions of others.
For women who fall under the control of human traffickers in the sex industry this can mean being unable to refuse to perform certain sexual practices with their customers, and being unable to insist on the use of condoms. In addition, they must fulfil the sexual desires of the perpetrators (without consent or payment). The money they are allowed to keep, if any at all, is completely disproportionate to that which they earn. The distribution of the proceeds of prostitution plays an important role in identifying human trafficking and sexual exploitation. The Berlin police, for example, consider the distribution of the proceeds when workers are required to give up more than 50% of their earnings from prostitution as important evidence of human trafficking.
For those affected by human trafficking in other industries this can mean having to work for up to 19 hours per day and not being in a position to refuse to carry out certain tasks. If they earn anything at all it is significantly less that other workers in comparable positions.
People affected by human trafficking have no say regarding the conditions of repayment of real or fictitious debts, or on the interest charged on these. Disproportionately high costs are charged for entry into the country, as well as for food and accommodation etc.. The size of the sums clearly does not bear any relation to the actual costs involved. How they are repaid is usually determined unilaterally and women are unable to negotiate. Some are deprived of their freedom and experience violence.
Since 2005 human trafficking has no longer been a crime against sexual self-determination, but rather a crime against the personal freedom of an individual. Chapter 18 of the German Criminal Code rules the following offences (legal reform entered into force in October 2016):
- Section 232 of the German Criminal Code: Trafficking in human beings
- Section 232a of the German Criminal Code: Forced prostitution
- Section 232b of the German Criminal Code: Forced labour
- Section 233 of the German Criminal Code: Labour exploitation
- Section 233a of the German Criminal Code: Exploitation through the use of unlawful restraint
There is a lot of speculation as to the extent of this crime, however estimates are not and cannot be reliable. The only evidence-based figures we have for Germany are those which are published by the Office of the Federal Criminal Police in its annual report on the situation of human trafficking in Germany. These are based only on those cases which are known to the police or those where preliminary proceedings were started, i.e. the reported cases.
These figures provide no information about the numbers of unreported cases, and reliable estimates on these are impossible. Furthermore, there is a discrepancy between the numbers of cases recorded by specialised advisory centres. In addition to the purely quantitative difference, there is also a discrepancy in the human trafficking figures regarding country of origin as this is not recorded in the overview of the human trafficking situation provided by the criminal police.
In order for a woman who has been affected by human trafficking to assert her rights, it is necessary for her to be identified as a victim and to declare her willingness to testify against the perpetrators as a witness during criminal proceedings. However, it is not sufficient for a woman to identify herself as a victim, or for us to identify her as such in the course of our counselling, the German law enforcement authorities must identify her as a victim of human trafficking.
Individuals who have been affected by human trafficking and who are prepared to testify as a witness in human trafficking proceedings receive temporary leave to remain in Germany. During the phase of criminal investigation by the police they are granted “tolerance to remain” according to Article 60a of the German Residence Act. Only after they have received official recognition as a witness by the public prosecutor do they receive a residency permit according to Article 25, para. 4a of the German Residence Act for the period for which they are required as a witness by the prosecution. This particular provision was only introduced in August 2007. Since only those affected by human trafficking are able to receive such a permit, these individuals are clearly labelled as such and are, as a consequence, identifiable. In addition to issues regarding data protection, this also exposes the women to danger, in particular for those who return to countries where prostitution is illegal.
This permit gives them the following rights:
- They can, if they wish, seek refuge in a women’s shelter.
- They receive subsistence benefits according to the provisions of the Social Security Code and receive a health insurance.
- They have a right to legal representation, i.e. an attorney for incidental action. This applies only to prosecutions involving serious cases of human trafficking. The legal fees are usually covered by the state.
- In theory, those affected by human trafficking have a right to work. However, in practise, it is extremely difficult for them to find work, not least due to the limited residency permit.
Up to three years may go by between their first statement to police and sentencing. It is very difficult for these women not to be allowed to see their families during such a long period of time, especially as they often have justified concerns that their families may be put at risk specifically as a result of their testimony. In addition, the fact that the witnesses are de facto unable to work during this time adds to the strain on the women. This long waiting period during the process means that they lose valuable time which they urgently need to start considering their future plans.
Normally, the women must leave Germany after the close of court proceedings at the very latest. If they are faced with danger upon return to their country of origin then there is an option of applying for residency after legal proceedings are over.
Ban Ying e.V. does not differentiate between women affected by human trafficking who are willing to testify, and those who do not want to or cannot testify. We provide counseling and psychosocial care to both groups of women.
The term “modern slavery” was introduced by the US-American scholar Kevin Bales in 2001. It points at the fact that human trafficking can imply full power of control over another person. Modern slavery is not legally defined in international law. Nonetheless, the term has been increasingly used by NGOs and governments.
In 2008 Ban Ying developed the campaign “Modern Slavery in Germany”. Victims of human trafficking were asked about their pre-migration hopes, which were then contrasted with the term.
In a 2014 publication for Heinrich-Böll-Stiftung, Ban Ying later critically discussed why the term has proven problematic – both for Ban Ying’s counselling as well as its advocacy activities. Points of criticism regarding the term include:
- “The danger … of trivialising or relativising historical slavery” (Dottridge, 2017)
- The term implies a reduction of the concerned person to an object, ignoring the fact that behind a story of human trafficking often lies a free decision to migrate, possibly also consent of debts.
- Problematic ascription, to which persons experiencing exploitation or human trafficking not necessarily self-identify
- The association to slavery implies such an extreme form of exploitation that no regular methods ensuring labour rights (e.g. labour inspections, self-organizing of workers) seem to be sufficient to combat it (Dottridge, 2014). The term might trivialize less extreme forms of exploitation, focusing on parts of the whole range of human trafficking only.
- The term might legitimize restrictive policies, such as migration bans.