1
/ Joint Swedish-VietnameseMaster’s Programme
MASTER’S THESIS
TRẦN THỊ NGỌC KIM
THE CRIMES OF TRAFFICKING IN
HUMAN BEINGS
IN INTERNATIONAL CRIMINAL LAW, VIETNAMESE AND SWEDISH CRIMINAL LAW
Supervisors:
Professor HELEN ORNEMARK HANSEN
Doctor TRẦN THỊ QUANG VINH
TABLE CONTENT
PAGEINTRODUCTION / 5
Chapter 1: OVERVIEW ABOUT THE CRIMES OF HUMAN TRAFFICKING IN INTERNATIONAL CRIMINAL LAW / 8
1.1. Human trafficking– A criminal act / 8
1.1.1. The real situation about human trafficking in the world / 8
1.1.1.1. The worldwide situation of human trafficking in recent years / 8
1.1.1.2. The causes of human trafficking / 11
a. Economic causes / 12
b. Socio-cultural causes / 12
c. Legal and political causes / 12
1.1.2. The effects of human trafficking / 12
1.2. Human trafficking crime in International criminal law / 14
1.2.1. The legal concept of human trafficking crime in Protocol to prevent, Suppress and Punish Trafficking in persons, Especially Women and Children / 14
1.2.2. The fundamentals characteristic of human trafficking in Protocol to prevent, Suppress and Punish Trafficking in persons, Especially Women and Children / 16
1.2.2.1. Acts / 16
1.2.2.2. Means / 16
1.2.2.3. Purposes / 18
1.2.2.4. Sanction relating to human trafficking / 23
1.2.3. The differences between human trafficking and smuggling of migrants / 24
a.Consent / 24
b.Exploitation / 24
c.Transnational / 24
Chapter 2: THE CRIMES OF HUMAN TRAFFICKING IN SWEDISH AND VIETNAMESE CRIMINAL LAW – SOME PETITION FOR IMPROVING VIETNAMESE CRIMINAL LAW / 25
2.1. Human trafficking crime in Swedish criminal law / 25
2.1.1. The real situation about human trafficking in recent years in Sweden / 25
2.1.2. The concept of human trafficking crime in Swedish criminal law / 30
2.1.3. The characteristics of human trafficking crime in Swedish criminal law / 32
2.1.3.1. Acts / 32
2.1.3.2. Means / 33
2.1.3.3. Purpose / 34
2.1.3.4. Penalty / 35
2.2. Human trafficking crimes in Vietnamese criminal law / 35
2.2.1. The real situation about human trafficking in recent years in Vietnam / 35
2.2.2. The concept of human trafficking crimes in Vietnamese criminal law / 38
2.2.3. Human trafficking crimes in Vietnamese criminal law / 39
2.2.3.1. Trafficking in women (article 119) / 39
2.2.3.2. Trafficking in children (article 120) / 40
2.2.4. The differences between trafficking in women and children and Organizing and/or coercing other persons to flee abroad or to stay abroad illegally (Article 275) / 41
2.3. Comparison between the Criminal Law of Vietnam and the Criminal Law of Swedish regarding crimes on human trafficking. / 42
2.3.1. The similarity / 42
2.3.2. The differences / 42
2.3.2.1. About the concept of human trafficking: / 42
2.3.2.2. About the victims / 43
2.3.2.3. About the crime acts / 44
2.3.2.4. About the crime purposes / 44
2.3.2.5. Penalty / 45
2.4. Proposing some motions for improving Vietnamese criminal law / 46
2.4.1. Proposing a motion for improving trafficking in women (art 119) / 46
2.4.2. Proposing a motion for improving trafficking in children (art 120) / 47
2.4.3.Proposing a motion for improving for amend the crime of trafficking in person / 48
CONCLUSION / 50
Abbreviations
ILO / International Labour OrganizationTOC / The Convention against Transnational organized Crime
TRAFFICKING PROTOCOL / Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime.
UNODC / United NationsOffice on Drugs and Crime
INTRODUCTION
- The general background
The trafficking in human being has become a serious concern for many countries in all parts of the world. Trafficking in persons, including both male and female adults and children, especially for sexual purposes, is by no means a new phenomenon and has been common practice in many societies throughout history. However, in recent decades the trafficking in women and children has become one component of a larger phenomenon of trafficking in persons, assuming different forms and motives. Ethical, moral, political, economic, physical and business factors are compounded, and the trafficking has been more organized. Human trafficking has been considered a global business generating lucrative profits for traffickers as well as criminal syndicates/organization, whose activities often include other forms of illicit trade such as smuggling of drugs and weapons. Every region of the globe has been more or less affected by this human trafficking, whether as a source of demand or supply.
According to report of United NationsOffice on Drugs and Crime (UNODC), most trafficking victims are women and children. Normally they are transported to foreign countries and forced into slavery or prostitution. 77% of trafficking victims are women, 14% children and 9% men. There are 127 nations accommodating people for trafficking and 137 countries receiving people from trafficking[1].
Sweden is a developed country; however, it could not prevent from human trafficking. According to the report of UNODC, Sweden ranks in medium level as a destination country and in low level as a transit country for people trafficking[2]. Most of women and children are trafficked into Sweden for sexual exploitation. Moreover, Sweden is regarded as a transit country where the trafficking persons from some countries in West- European, Russia, etc. are transferred to Denmark and other countries in the Baltic Sea.
In spite of being emerged in Vietnam over one decade ago, trafficking in human beings has been paid significant attention to and great concern about by the State and Community because of its complicated and multiform character as well as serious consequences caused to victims, their families and the society. In the past, trafficking in human beings happened only in a few of cities and provinces, but nowadays, this phenomenon has been expanding to many regions of the country.
Because of the serious and inhuman nature of trafficking in persons, especially in women and children, the international community has throughout its history created a set of international regulations and guidelines to prevent and combat against human trafficking. There is a United Nations Convention against Transnational Organized Crime (TOC) including two protocols, which focus on measures to combat the smuggling of migrants and measures to combat human trafficking. One of them – the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the TOC- is the most important international instrument in the struggle to eliminate the trade in human beings.
Since 2004 Sweden has been a member of TOC and the protocol on preventing, suppressing and punishing trafficking in persons, especially women and children, supplementing the TOC. As a result of this, the regulations on prevention and combat against trafficking in persons must be included in Swedish criminal law. Swedish legislators have struggled to introduce human trafficking in the criminal law which shall cover all forms of trafficking, in consistency to the Protocol and they are effective measures to combat and prevent from human trafficking.
Vietnam has been following its itinerary to become a member of TOC and the Protocol relating to combat and prevention from human trafficking. On the requirement of the protocol, the Vietnamese Penal Code must be amended to provide a comprehension of trafficking in persons and the Swedish Criminal Code is a good model of such issue on human trafficking legislation to be researched.
- The purposes:
-From the general introduction about human trafficking in international law, Vietnamese and Swedish criminal law, this thesis will demonstrate and compare the human trafficking provisions in Vietnamese and Swedish criminal law.
-This thesis will provide a brief about the real situation of human trafficking crimes in the world, Vietnam and Sweden.
-This thesis will provide some suggestions to improve Vietnamese criminal law in human trafficking thanks to the experience of the international and Swedish criminal law on the respective issue.
- Delimitation
For combating against human trafficking crimes, the legislators are highly expected to determine a strategy for human trafficking control and strengthen apparatus of government, the system of international and national law as well as government office’s ability in investigation, prosecution, judgment toward human trafficking crimes, including protective measures for trafficking victims…
However, in this thesis, the author only gives a general introduction to human trafficking prescribed in international, Vietnamese and Swedish criminal law and focuses on the TOC, the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the TOC, Vietnamese and Swedish Penal Code.
Moreover, this thesis will search for the real situation about human trafficking crimes in the world, Vietnam and Sweden in recent years.
4. The method
- Logical analysis
- Case analysis
- Traditional legal method
- Comparative legal method
- Statistical method
- The Structure
This thesis includes besides this introduction, two main chapters and a conclusion:
Chapter 1: Overview about the crimes of trafficking in human beings in international criminal law
Chapter 2: The crimes of trafficking in human beings in Vietnamese and Swedish criminal law - Some motions for improving Vietnamese criminal law
Conclusion: Vietnam is as an origin country but Sweden is as an destination country, so we only should study the way of amendment Swedish penal code ratification in human trafficking of the TOC Convention and its Protocols. Those recommendations in this thesis should be understood as a packed for both purposes: ratification of the TOC and its Protocols on the one hand, and further perfection of the relevant Vietnamese criminal code as a whole on the other hand.
Chapter 1: OVERVIEW ABOUT THE CRIMES OF HUMAN TRAFFICKING IN INTERNATIONAL CRIMINAL LAW
1.1. Human trafficking– A criminal act
1.1.1. The real situation about human trafficking in the world
1.1.1.1. The worldwide situation of human trafficking in recent years
Nowadays, the real situation about human trafficking in the world, especially women and children, has been growing rapidly and became increasingly difficult to control. It has become a global issue when human trafficking market brings a huge source of income for the traffickers. According to the United Nation Office on Drugs and crime (UNODC), human trafficking is a market with estimate annual global income about 30-40 billion US dollars and often related with well-organized groups of criminal. It is said that human trafficking is a profitable market just after drug dealing[3]. Because of the huge income, the traffickers seek for every way to trick and lure the victims and later sell them. Human trafficking is not only violate to human rights but also threaten the domestic economy and political security-social order.
There are 127 nations accommodating people for trafficking, Albania, Belarus, Bulgaria, China, Lithuania, Nigeria, Republic of Moldova, Romania, Russian Federation, Thailand, Ukraine have been identified as major trafficking source countries. There are 137 countries on the world are the destination for human trafficking, Belgium, Germany, Greece, Israel, Italy, Japan, Netherlands, Thailand, Turkey, United States of America rank very high as an destination country in citation index. And there are 105 countries that have been identified as transit countries for person trafficked, majorityAlbania, Bulgaria, Hungary, Italy, Poland, Thailand.[4]
Human trafficking has been growing taking advantages of the globalization process. According to Antonio Costa, the Director of UNODC, there are different types of exploitation all over the world. In Europe, there may exist the sexual exploitation where the victims (especially women and children) are exploited for prostitution, while in other countries (especially Africa, South America, Asia) children are forced to dive for oyster or pearls, some are physically tortured like slave, women are forced to work in mines. Currently, the exact figures of victims on worldwide human trafficking is unknown. However, it is estimated that 2,5 million of people are victims of human trafficking. Most of them are women and female children who are trafficked into commercial sexual exploitation, while men are forced to work in risky working conditions or working for free. Those labors receive very low wages which neither afford for their minimum living standards nor allow them to going home. They, therefore, become imprisoned by their owners.
According to the International Labour Organization (ILO), the United Nationsagency charged with addressing labor standards, employment and social protections, it is estimated that there are 12,3 million of people are victims of forced labour, debt bondage, or children sexual exploitation. Another source of data provides an estimated of 4 – 27 millions of victims. Research conducted by a project sponsored by the UnitedState of America completed in 2006, found that an estimated of 800,000 men, women, and children are trafficked across international borders each year, not to mention the domestic trafficking[5].Approximately 70 percent are women and girls and up to 50 percent are minors[6]. Most of the female victims are trafficked into commercial sexual exploitation. This figure does not include million of victims trafficked within their own national borders which is for the purpose of forced labour or debt bondage. Traffickers often seek for children and young female.
Nowadays, approximately 77% of the victims are female and 14% are children and there is a small percentage of men 9%[7]. The main reason is for sexual exploitation therefore, the victims are often women. Men are used as forced labour, even not much, mainly in developing countries; therefore the victims are mainly women and children.
Research conducted by the United Nation on drugs and criminal found that the main purposes of traffickers are for sexual exploitation and labour exploitation, mainly sexual exploitation; forced labour is not popular in many countries but sexual exploitation has been growing and accounted for a significant part in the countries where human trafficking exists. Currently, sexual exploitation accounted for 87%, labour exploitation accounted for 13%[8]; There are other exploitations exist, which are for the purpose of removal of organs or illicit international adoption. However, the figures are not clear and there have been no research conducted so far.
Statistic by areas showed a highest percentage of human trafficking victim is in Western European (37%), the next is Southeast Asia (22%), South America (19%) and Africa (19%), the last is Oceania (see the three diagram below)[9]. This data shows that most of the victims are from poor countries, looking for better life in wealthier countries, therefore they are easier to be lured to be the victim of traffickers.
Human trafficking has been growing rapidly and become more critical eventhough governments have all tried to end human trafficking but still cannot completely erase this criminal. The United Nation adopted a Protocol on anti-human trafficking in 2003 which was signed by 117 countries. This Protocol made human trafficking an international criminal. It describes the criminal acts of human trafficking which helped to improve the awareness of trafficking.
1.1.1.2. The causes of human trafficking
Trafficking in human beings is a global issue that facilitated by many causes. Most of the victims are easily lured by the false opportunities for better lives in wealthier countries. Besides, wars, armed conflict, poor living standard, natural disaster etc. and other causes that also expose people to human trafficking. There are many causes of human trafficking but we can see four main causes: Political, economic, social and cultural factors and the interplay between them all play a part.
Global trafficking in human beings may be seen as a response to the demand for people for various forms of exploitation, a product of poverty – relative as well as absolute, and as a consequence of the subordinate position of women and children in society and the lack of respect for and protection of human rights. Clearly, people are also more vulnerable and exposed in extreme situations, e.g. in the wake of natural disasters or armed conflicts, where their lives have been severely disordered and social structures and support systems have collapsed. This applies particularly to women and children and especially those who already belong to marginalized groups.[10]
a. Economic causes
The victims of human traffickers mainly originate from the poor countries, where the poverty and lack of employment opportunities are critical issues. They accept the risk of even being the victim of human trafficking, in exchange for a better opportunity to earn more income or to have a better life.
Aside from the poor countries that are major trafficking sources, human trafficking also exists in developed countries where the entertainment industries such as restaurant, discotheque, karaoke, massage have inevitably come along with the development of the economic. This causes an increase in sex trade towards women and children. In addition, human trafficking is also popular in countries where sex trade is officially considered as an entertainment service. Another cause of human trafficking is the removal of human organs whish is exist in some countries; or cheap labour being used in plantations.
b. Socio-cultural causes
The oppression of women and children within patriarchal family and social structures, in which women are subordinated to men, boys are preferred than girls ect. that lead families to willingly pay for having a boy in the family eventhough it involves human trafficking. In some poor countries, women seek for a chance to be married to a wealthy man in order to escape a dead-end life. They easily agree to be married to a foreign man eventhough they have no idea about him or the life that is awaiting for them. Other factors such as poor social benefits, runaway child etc. have also expose people to fall prey for human trafficking.
c. Legal and political causes
The lack of adequate legislation, properly functioning administrative machinery and an effective judiciary are the most obvious causes of human trafficking in this category. Many countries lack both relevant legislation and explicit policies on human trafficking. Where these do exist, they are often not applied or followed up. In some countries where human trafficking or similar activities are criminal offences, sentences on conviction may be relatively lenient. Those mentioned factors are the main obstacles for ending human trafficking.