Outlawing Exploitation: Recent developments in law-making in Germany
University of Bremen
4th June 2015
Fifteen years ago, the United Nations adopted the UN Trafficking Protocol. Has this legal instrument advanced the global movement against exploitation? A consideration of fifteen years of debate suggests that ongoing controversies about the merits and shortcomings of the UN Trafficking Protocol have also spurred awareness of and attention given to the issue of the exploitation of human beings, as the case of the current law-making in Germany indicates.
The Protocol’s reference to exploitation as a constitutive element of the definition of trafficking has certainly triggered – and still triggers – a substantial debate about the different understandings, attempts at conceptualisation and necessity for a legal codification of the exploitation of human beings per se. However, due to the controversial nature of the debate, mirroring highly divergent interests and political orientations, it is still too early to make to a conclusive judgement on how far the development will go.
Currently, in policy debates on trafficking it is sometimes mentioned – but, in fact usually ignored – that exploitation is not defined and codified in international law. The UN Trafficking Protocol did not move forward in this regard. The Protocol merges three elements into a complex definition: acts, means and purposes. The first element refers to acts of recruitment and transfer which are not punishable per se but become illicit as trafficking when the two other elements – illicit means (like coercion or fraud) as the second element and the purpose of exploitation as the third – simultaneously occur. However, the Protocol does not define exploitation per se but alludes to its meaning by enumerating some of the purposes of exploitation.
Closer consideration reveals that the definition operates via two conceptually clearly distinguishable sets of acts, the punishable acts of coerced recruitment and transfer constituting the first element and specifying acts, which indicate the purposes of exploitation, constituting the third. Some of the acts introduced to specify the purpose element are established legal concepts and already outlawed (like forced labour, slavery); others (like the ‘exploitation of the prostitution of others’) are not accordingly unanimously codified and defined in international law.
The insufficient attention to the conceptual distinction between acts of trafficking and acts of exploitation opens space for a rhetoric which labels certain practices as more extreme than legally accurate. On the one hand, there is a tendency to conflate the trafficking offence with more or less severe exploitation in order to widen the operative space for crime-prevention measures or awareness-raising campaigns. On the other hand, there is a tendency to lower the threshold of trafficking suspicion in order to widen the operative space of assistance services for victims of trafficking.
The lack of terminological clarity implies that there is a risk in addressing any form of exploitation as trafficking or slavery. Such a mobilising language of trafficking and modern slavery increases public attention and support. But restricting this to the most extreme cases detracts attention from less-severe exploitation and disturbs those who have been the victims of exploitation, who may prefer to avoid a label which they see as stigmatising or who may feel that their exploitation was not serious enough to ‘qualify’ for victim-of-trafficking status. The notorious difficulties of labelling a trafficking offence effectively is mirrored in the blatant discrepancy between the high estimates of the number persons severely exploited and the low number of prosecutions and even lower number of convictions for trafficking. The rhetorical conflation of trafficking and exploitation induces a distorted picture of millions of exploited persons as trafficking victims that does not accord with judicial classification and subsequently fuels the impression that law enforcement is unable or unwilling to curb trafficking.
One possible way out of such exploitation creep approaches is currently being considered in Germany. Parliamentary bodies are negotiating the amendment of existing anti-trafficking legislation. Hitherto, German penal law was not comprehensively concerned with exploitation per se. As the German Federal High Court argued, in compliance with international law, the penal code provision addressing trafficking for the purpose of labour exploitation protects an individual’s liberty to dispose of his or her own labour force – including the liberty to agree to the taking up or continuation of exploitative labour. German penal law protects against trafficking for labour exploitation but not comprehensively against labour exploitation itself.
In response to legal inconsistencies and practical implementation problems, practitioners and legal experts have suggested the introduction of an offence of ‘labour exploitation’, explicitly separate from trafficking. According to this proposal, the penal provision on trafficking should exclusively target acts of coercive or fraudulent recruitment and transfer. Additionally, penal provisions that target acts of labour exploitation as such should be introduced. This proposal takes up the conceptual distinction between acts of trafficking and acts of exploitation as introduced in the UN Trafficking Protocol. However, in order to close the current gap in criminal liability, the proposal goes a step further by classifying acts of exploitation as punishable.
In Spring 2015, the responsible parliamentary bodies considered a draft law stipulating the punishable offences of labour exploitation, forced prostitution, forced labour and severe exploitation as new provisions. Consequently, the draft extends the legal entitlement to assistance beyond the victims of trafficking to the victims of labour exploitation, forced labour, forced prostitution and severe exploitation.
Whatever the final outcome of the ongoing law amendment, this development in Germany is a strong indicator that the issue of the culpability of exploitation per se is now on the agenda. This development is undoubtedly ignited by the UN Trafficking Protocol. International and national debates on trafficking facilitate awareness of and attention to exploitation per se and encourage the development of fresh approaches for improved protection against exploitation. The significant detour of the UN Trafficking Protocol has the potential to advance the global movement against the exploitation of human beings.
Dr Norbert Cyrus has been a Researcher at the University of Bremen in the Unit for Intercultural Education since 2013, working on the EU-funded project Addressing Demand in Anti-Trafficking Efforts and Policies (DemandAT).This blog post continues and contributes to a debate opened recently by a set of opinion pieces published by Anti-Trafficking Review 2015
The views expressed in this blog post do not necessarily express the views of the DemandAT project consortium as whole