Trafficking, Slavery and Exploitation: Time to Re-Assess?

By Dr Julia Muraszkiewicz & Prof Ryszard Piotrowicz, Nov 2024

Migrants at risk from trafficking states
The deliberate abuse of asylum seekers and migrants by States for political ends is revealing for our understanding of the link between trafficking in human beings (THB) and slavery, forced labour and servitude, as  well as for the meaning of exploitation, which remains legally undefined. 

In recent years some countries – and in the European context notably Belarus and Turkey – have engaged in a policy of encouraging and facilitating irregular migration through their territories to the European Union, in particular the immediately adjacent States of Poland and Greece. The movie Green Border, about the migration crisis at the Polish/Belarusian border, by Polish director Agnieszka Holland, depicts this very well.  

In the film, as in reality, migrants seeking to cross into the EU are being physically prevented from doing so, and even being subjected to unlawful ‘pushbacks’. This term is as it sounds; migrants are physically pushed back across the border without the opportunity to present a claim for asylum or, as reported in The Guardian in April 2024, without the opportunity to obtain critical medical care (see here). 

State-sponsored human trafficking 
There is much to be said for the argument that this sort of behaviour can amount to THB. The migrants have been recruited in their home countries, or in other countries where they may already be in exile (such as Turkey), and transported (in the case of Belarus, even flown) to a destination from which they can access the EU border. They have sometimes been (mis)informed that they will be permitted to enter the EU on foot. 

This means that there are already present two of the elements needed to prove a case of THB: the acts of recruitment and transfer; and the means – deception.  But what about the objective of exploitation – the third element? There is nothing in the Palermo Protocol or the Council of Europe Anti-Trafficking Convention that excludes exploitation for political ends; it is not only about addressing sexual or labour exploitation. Moreover, as we have seen in the recent update of the EU Directive on human trafficking, other types of behaviour recognised as ‘exploitation’ continue to emerge, with the European Parliament expanding the list to include the exploitation of surrogacy,  forced marriage and illegal adoption. 

There is little doubt that Belarus and Turkey sought to exploit the plight of the migrants in order to bring pressure to bear on Poland and Greece and, in turn, the EU. As such, we suggest that this was State-sponsored THB. The exploitation was for political ends. 

Trafficking outside Article 4 ECHR? 
That conclusion notwithstanding, there is another lesson to be learned from these events, which has not been fully appreciated. We know from the ECtHR case of  Rantsev v Cyprus and Russia in 2010 that THB falls within Article 4 of the European Convention on Human Rights: the prohibition of slavery, forced labour and servitude. Perhaps unfortunately for those who appreciate clarity, the Court did not explain precisely how THB fits into Article 4.  

But not to worry, since then there has been a string of decisions finding States (not the traffickers) to be in violation of Article 4 for the way they have dealt with different aspects of THB, including support for victims, compensation for victims, as well as the need to have in place effective legislative measures to address THB. But the Belarus and Turkey examples force us to reconsider. When we have encountered other types of exploitation, such as forced begging, forced criminality or sexual exploitation, it has been possible to characterize them as being aspects of (modern) slavery, forced labour or servitude (although the courts often don’t make the effort to be that specific, perhaps taking their lead from the ECtHR in Rantsev). 

If we conclude that Belarus and Turkey were exploiting the migrants and committing THB, can we say that this conduct amounted to slavery, forced labour or servitude? Surely not. When all that happened was that migrants were conducted or encouraged to the border with the objective of bringing pressure to bear on the neighbours. There was in such cases no slavery, no forced labour and no servitude. But there was trafficking. There was exploitation, indeed common sense suggests that a State taking advantage of the vulnerability of migrants to extract unfair benefit, and harming the migrants in the process, amounts to exploitation.  

This has significant ramifications for how we interpret Article 4 (and indeed, potentially, the equivalent provisions of the EU anti-trafficking Directive, the African Charter of Human and Peoples’ Rights, the American Convention on Human Rights and the ICCPR). 

On the one hand, the possibility exists that there can be a type of THB that does not fit within the parameters of Article 4 ECHR. There has still been exploitation, but not of a type formally recognised in Article 4. If that is the case, how do we, legally, deal with this hitherto unappreciated dilemma? The migrants are clearly being exploited, and they have been recruited and transferred for that purpose. 

On the other hand, can we simply retreat to the Rantsev formula, which holds that THB – without quite explaining how or why – falls within Article 4; accordingly THB committed by Belarus or Turkey is THB for the purposes of Article 4, even though it does not entail slavery, forced labour or servitude? 

If this type of exploitation does not fall within Article 4, that does not mean that States have no protection obligations, but, at least in the European context, we would need to fall back on the Council of Europe Anti-Trafficking Convention to elucidate what these are. At least Belarus and Turkey have signed that. 

Authors

Dr Julia Muraszkiewicz is Head of the Programme Against Exploitation and Violence at Trilateral Research.

Prof Ryszard Piotrowicz is Professor of Law at Aberystwyth University.  He is a former member and Vice-President of GRETA, the Council of Europe’s Group of Experts on Trafficking in Human Beings, and he was a specialist adviser to the House of Commons Home Affairs Select Committee on Human Trafficking, which reported in December 2023.