Since the beginning of the 21st century, several compulsory international instruments have dealt with trafficking in human beings, requiring States to prevent the phenomenon, to punish the perpetrators and protect the victims. The same instruments have offered a new international definition of trafficking. According to the UN Protocol to prevent, suppress and punish trafficking in persons, especially women and children, a trafficker is the one who recruits, transports, transfers, harbours or receipts a person, by means of coercion [1] or abuse of a position of vulnerability (circumstance only optional when the trafficked person has not reached yet the age of 18 years), for the purpose of exploitation.

Whereas previous international definitions of trafficking were related to prostitution [2] or slavery [3], the new one has gathered and broadened them in order to cover trafficking in view of every kind of exploitation : sexual exploitation, including exploitation of prostitution, slavery and similar practices, forced labour or services, servitude, and even the removal of organs (article 3 of the UN Protocol).

Harmonizing the national definitions on trafficking from a common international definition was a good idea. It should have not only enhanced cooperation between States -cooperation is made necessary by the often transnational dimension of the phenomenon - but also facilitated the elaboration of an efficient criminal justice policy by comparing national data and good practices.

But, apparently, such a harmonization has not occurred. The offences of trafficking resulting from the implementation of the UN Protocol in national law seem to be very different. Among the causes of such a diversity, we find especially : 1. The softness of the definition given by the UN Protocol. For example, the States are free to decide what the word “vulnerability” means, and if the expression “exploitation of prostitution” systematically implies (or not) the use of coercion [4]. 2. The necessary implementation in national law of the different international [5] or regional [6] definitions of trafficking which bind also the States. 3. The States are free to adapt the already existing national provisions instead of simply erasing them in favour of the exact definition of the UN Protocol. As a consequence, to all the possible interpretations of international law, we can add all the possible ways of implementing it in the national law.

France and the Netherlands offer a good illustration of how a same international definition can be differently translated in national laws. Both of them have ratified the UN Protocol and implemented it to respect their international (and regional) obligations concerning trafficking. On the one hand, trafficking and exploitation are two separate offences in France. On the other hand, exploitation is considered as the last step of trafficking and punished under this qualification in the Netherlands. Does it show that different conceptions of trafficking coexist ? Or does it reveal the lack of relevance of a trafficking concept able to cover one specific behaviour in a country and another elsewhere ?

In France : Exploitation, the step following trafficking

With the 20th century, France starts to fight against trafficking of French women in view of their prostitution abroad. Prohibiting it at an international level with a few other European countries, France criminalizes the White slave trade at the beginning of the 1900s. Then modified to follow every changes in international law, this offence still exist in the French Penal Code (FPC) under the title of procuring. In article 225-5, 3 FPC, this form of trafficking is more precisely understood as hiring, leading or corrupting a person for prostitution. This behaviour can be punished by a prison sentence up to 7 years and a fine up to EUR 150,000. The sentence is increased to 10 years and EUR 1,500,000 when a border is crossed. Applying the 1949 Convention for the suppression of the traffic in persons and of the exploitation of the prostitution of others, the use of means of coercion [7] or abuse of a position of vulnerability [8] are not required to qualify this trafficking offence, but increase the maximum sentence when they happen.

"You’ve said venour, haven’t you ?"

Instead of adapting this offence in regard with the UN Protocol, a totally new offence has recently been added to the French Penal Code while the older article 225-5, 3 FPC remained unchanged. Trafficking for prostitution is then criminalized twice [9].

Under new article 225-4-1 FPC, human trafficking consists of the recruitment, transport, transfer, accommodation, or reception of a person, in exchange for a benefit, in order to either facilitate the commission of one of the enumerated offences against her/him (procuring, sexual assault or attack, exploitation of begging, or the imposition of living or working conditions inconsistent with human dignity) or force her/him to commit any felony or misdemeanour [10]. Since 2003, trafficking for prostitution is no longer the only kind of trafficking which is punishable. Only trafficking in view of removal of organs is still silenced. Again, the use of means of coercion [11] or abuse of a vulnerable position are not required [12]. However, when such means are used, the maximum sentence is increased from 7 to 10 years and from EUR 150,000 to EUR 1,500,000. When a border is crossed, the trafficker is punishable by the same aggravated sentence.

Analysing the new article 225-4-1 FPC, the trafficker is the one who facilitates the exploitation of a person. The major interest of criminalising trafficking is to prevent the effective exploitation of the person. This kind of infraction is said to be an “offence-obstacle”. In other words, it is now possible to take action against exploitation from its preparation (trafficking), even before it (attempt of trafficking), to its perfect realisation [13].

But when exploitation has happened, the trafficking offence appears to be useless, as it covers what can already be punished by the exploitation offences (as listed by the article 225-4-1 FPC). This is generally also the case when exploitation has only begun, except when the attempt is not punishable (See the living and working conditions infringing human dignity and all other misdemeanours for which the FPC doesn’t precise that the attempt may be punished). Although it can be legitimate to prevent exploitation as soon as possible, the project to exploit a person and its preparation is difficult to identify in practice before the exploitation has at least begun. And, as we said, when the exploitation of a person has begun, the exploitation offences can generally be applied to the exploiter (who can be a trafficker her/himself) and her/his accomplices (including the traffickers). That may explain why we didn’t hear of any conviction for trafficking in France since the article 225-4-1 FPC entered into force [14]. As a consequence, trafficking cases in France can be found only under the names of procuring, rape, working conditions inconsistent with human dignity, etc., i.e. all the offences supposed to cover all the different forms of exploitation.

The concept of exploitation is nonetheless absent from the French law, despite of its central role in the international definition of trafficking. The French Penal Code only refers to various offences supposed to cover exploitation as defined by the UN Protocol but generally not made for that purpose. It is not sure, for instance, that all the cases of slavery or similar practices can be punished (with a relevant sentence) on the ground of the existing offences. As a result, the repression of exploitation is unequal and hardly coherent.

The French law is incoherent when, for example, the use of coercion and the abuse of a vulnerable position are sometimes decisive sometimes optional in the said exploitation offences. It is also incoherent when the maximum sentence is more or less high depending on the offence concerned, although a same interest is supposed to be protected – the human dignity : 7 years for procuring (10 years with coercion or abuse of a vulnerable position) ; 15 years for rape and 5 years for the other kind of sexual attacks (implying the use of means to force or surprise one’s consent) ; 3 years for exploitation of begging (5 years with coercion or abuse of a vulnerable position) ; 5 years for subjecting a person to living or working conditions which infringe human dignity (implying the abuse of a vulnerable or dependant situation) ; from 2 months to life imprisonment for forcing someone to commit a felony or a misdemeanour [15].

In the Netherlands : Exploitation, trafficking’s last step

Since 1818, the Netherlands criminalize trafficking in view of slavery (or slave trade) among the offences designed to protect personal freedom. Under the article 274 of the Dutch Penal Code (DPC), this behaviour still is punishable by a prison sentence up to 12 years and a fine up to EUR 74,000. As it is not precisely defined, it is up to the judge to decide what is slave trade or not, in regard with the 1926 and 1956 international conventions. To be punished as a trafficker for slavery, one then should at least have the intention to facilitate the exercise of any or all of the powers attaching to the right of ownership on a person [16].

Later, and after having decided to ratify the 1910 Convention for the suppression of the White slave traffic, the Netherlands introduce a new offence of trafficking in the Dutch Penal Code under the title “Crimes against morality” this time. According to the Ministry of Justice explanatory memorandum, the new offence is supposed to cover all the acts committed from the first contacts with someone in view of her/his prostitution to her/his effective exploitation by the same person or another. For a time, it is broadly applied, without taking into account the consent of the trafficked and/or exploited person. But the offence gradually stops being used except for the forced prostitution cases because of a growing tolerance around the brothels and the running of them [17]. In 1994, this practice is legalised : only inducing a person, by using means of coercion, to prostitute her/himself is now prohibited. This circumstance is however not always required : when the person has not reached yet the age of 18 or when trafficking has a transnational dimension. This last hypothesis – recruiting, taking or abducting a person with a view to inducing her/him to prostitute her/himself in another country - is inherited from the 1933 Convention for the suppression of the traffic in women of full age [18]. In every case, the perpetrator is exposed to the same sentence of up to 6 years of imprisonment and EUR 45,000 of fine. In October 2002, the reference to prostitution is replaced by the reference to all kind of sexual activity performed for a remuneration (including erotic shows).

"Yes, venour. What else ?"

Still too restrictive compared to the UN Protocol definition (See Document A), the Dutch offence of trafficking is broadened in 2005. Moving to the chapter on crimes against personal freedom, the new article 273f, I, 1 DPC (See Document B) now criminalises the recruitment, transport, move, accommodation and sheltering of a person with the intention of exploiting her/him or removing her/his organs. Let’s remark that the removal of organs is a possible purpose of the trafficker but is not considered to be a form of exploitation as the UN Protocol does [19]. Under the Dutch law, exploitation comprises at least sexual exploitation, including exploitation of prostitution, slavery and similar practices, forced or compulsory labour or services, and servitude (See Document B). As a consequence, trafficking in view of slavery is punishable on two different grounds, as the article 274 DPC remains in force [20].

Following a contrary approach than the one adopted in France, the Dutch trafficking offence requires the use of means of coercion or the abuse of a vulnerable position [21]. Two exceptions remains however : when the trafficked person has not yet reached the age of 18 (like in the UN Protocol) ; and when the sexual exploitation of the person is meant to happen in another country (like the old version of the Dutch trafficking offence) [22]. Whatever is the hypothesis concerned, the maximum sentence is up to 6 years of prison and EUR 74,000 of fine. Theoretically, trafficking is then more severely punished in France. In fact, it is not so obvious as the French trafficking offence has not been used. And we have seen that the sentence which can be applied to a trafficker in France depends on the offence effectively used to condemn his behaviour (procuring, rape, working conditions infringing human dignity, etc.). From this point of view, the Dutch law appears clearer than the French law related to trafficking.

But it would be a serious mistake to stop here our analysis. Indeed, the article 273f DPC (See Document B) puts other behaviours than the one already examined under the name “trafficking”. More precisely, the preparation of exploitation (the equivalent to the French conception of trafficking) is the first step of what is considered to be a chain of acts called trafficking. Like in France, the provision covering the preparation of exploitation tends not to be used ; the intention of the one who prepares the exploitation of a person appears rarely before exploitation has effectively begun.

That’s why the other provisions of the article 273f DPC considering the steps following the preparation of exploitation are so fundamental. They cover such behaviours as (See Document B) : 1. inducing a person, by using means of coercion or abusing a vulnerable position, to perform work or services ; 2. inducing a person, by using means of coercion or abusing a vulnerable position (except when the trafficked person has not yet reached the age of 18), to perform sexual acts with or for a third party for remuneration, or wilfully profiting from it by using the same means (with the same exception) ; 3. wilfully profiting from the exploitation of a person (sexual exploitation without remuneration, slavery and similar practices, forced or compulsory labour or services, or servitude). Concerning the removal of organs (in exchange of remuneration) or the performance of sexual acts (for remuneration), the use of coercion or abuse of a vulnerable position are not necessarily required when the person is not yet 18. Does the entire article 273f DPC cover exactly the same behaviours as the ones prohibited by the French exploitation offences listed by the article 225-4-1 FPC ? To answer the question, we should compare each provision and the way in which they are applied (it will be examined in a forthcoming paper).

At this stage, we will conclude that speaking about trafficking means in France as well as in the Netherlands speaking about exploitation. Both follow the same logic : trying to prevent as early as possible the effective exploitation of human beings. Then we should be able to compare the results obtained by the French and Dutch criminal justice policies related to exploitation at each stage of the process. It should be possible to compare them from the resolution to participate to the exploitation of a person to its complete realisation, along a common iter criminis (or criminal path), whatever are the words used to qualify all these acts. But is it even possible without firstly defining what is exploitation ? Listing the different forms of exploitation like in the UN Protocol or the French and Dutch penal codes doesn’t give any clue to know, for example, where violations to labour law ends and violations to criminal law begins.

The Netherlands now facing the problem look for some clear and precise criteria from which the Dutch judge will be able to punish other forms of exploitation than sexual exploitation. If the Dutch judge has settled for long a limit between irregular sexual business and illegal exploitation of sexual activities, only one case of other forms of exploitation has been condemned [23]. On the other side, the procuring as well as the working conditions which infringe human dignity are condemned in France but without questioning the concept of exploitation.

We are convinced that, by comparing the relevant legal cases in both countries and keeping in mind the criteria used at the international level [24], we may identify the common criteria which are or could be used to define exploitation. For example, we have with no doubt to know if the means of coercion or the abuse of a vulnerable position are a decisive criterion or not. If this is the case, we have to look also for criteria allowing us to recognize coercion and vulnerability. It is only by doing so that States will be able to understand each other and work together. It is only by doing so that results from national criminal justice policies may be compared in order to find out the best way to guaranty not only a more efficient repression of the perpetrators but also a more effective protection for all the exploited persons.

Document A

Document B

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