The mere mention of human trafficking gangs suggests a seedy, clandestine underbelly of organized international criminal syndicates focused on profiting from the exploitation of vulnerable individuals. The terms “gang”, “syndicate” and “organized crime group” are bandied about the anti-trafficking world on a regular basis as descriptors for those who undertake, facilitate and/or enable exploitation. But when interrogated, the terms become slightly opaque, perhaps challenging perceptions about the actors complicit in human trafficking.
The concept of “organized crime” is ever evolving, with definitions of the term and legislative models for addressing related offenses varying by jurisdiction. The United Nations Convention against Transnational Organized Crime (UNCTOC), under which the Palermo Protocol on Trafficking is included, is the only international convention dealing with organized crime. The Convention does not contain a definition of “organized crime” to allow the Convention to adapt to emerging offenses, but it does define “organized criminal group” in Article 2(a) as:
a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
Although it effectively excludes crimes committed by ad hoc groups, a group “does not need to have formally defined roles for its members, continuity of its membership or a developed structure” (Article 2(c)).
On one hand, criminal justice experts debate the degree to which a criminal group is considered “organized.” This depends on: operational structure (hierarchy, size, divisions of labor), the fluidity or continuity of membership, entrenchment and influence (in a given “market”, geographic space, over its members/ the community), the use of violence, and extent of criminal behavior (as well as the ability to react to law enforcement efforts). The use of the term “organization” may even presume efficiency:
The organizational structures of the criminal groups are what makes them efficient and increases their harm. Unlike an ad hoc cooperation between individual criminals, where operation is limited in scope and the arrest of individuals can effectively halt activity; organized crime groups maintain their criminal activity even when individual group members are arrested.
For instance, in the US there have been trafficking cases involving highly organized crime groups, such as the Mafia and La Mara Salvatrucha 13 (MS-13). There have also been cases involving somewhat less organized groups, such as the Somali gangs. Of course, other models exist. CNN recently reported the ease with which those involved in cyber sex trafficking in the Philippines were enabled through their “independent nature and lack of coordinated structure”; challenging notions of efficiency based on organizational entrenchment.
On the other hand, the degree to which the crime of human trafficking is organized may not depend on the inclusion of an organized criminal group. Groups may “specialize” in trafficking (or trafficking may be part of a more diverse “business” portfolio), a particular kind of trafficking, or a specific component of exploitation (say, recruitment or transportation). Regularity of collaboration between individuals and groups widely differs. An individual complicit in trafficking may (not): be a member or associate of an organized crime group, have contacts with (multiple) organized crime groups, act on his/her own accord, specialize in a particular component of the trafficking process, act in collaboration with one partner or merely be an unintended facilitator. Globally, it is difficult to conduct research directly with traffickers. Nonetheless, actors complicit in the trafficking process might include recruiters, corrupt officials, and employers. Finnish research highlighted the roles played by (semi) legal actors:
[…] owners and landlords of apartments, owners and staff of restaurants and hotels, travel agency employees or taxi drivers may support, promote or otherwise facilitate (knowingly or unaware of the link) the activity and/or benefit from the trafficking and procuring activity.
According to the United Nations Office of Drugs and Crime (UNODC), “The implied definition ‘transnational organized crime’ then encompasses virtually all profit-motivated serious criminal activities with international implications.” The lucrative returns on the “business” of human trafficking are frequently reported. The US Agency for International Development highlighted this point in the 2013 Counter-Trafficking in Persons Field Guide: “Maximization of profit is the overall goal, and transactions resemble those in other business models”. This seems compatible with both “traditional” profit-driven crimes embraced by organized criminal groups as well as crimes associated with trafficking. According to the Congressional Research Service, “Related crimes associated with human trafficking operations have reportedly included fraud, extortion, racketeering, money laundering, bribery, drug trafficking, arms trafficking, car theft, migrant smuggling, kidnapping, document forgery, and gambling” (although, interestingly, prostitution is left off of this list).
However, the Australian Institute of Criminality (AIC) carried out a review of the international literature on the nature of organized crime and human trafficking. The AIC study points out that, “…it is frequently assumed that financial profit is the driving motivation behind trafficking in persons crimes […] However, this assumption has rarely been tested.” Because organized crime groups are perceived as businesses, this may not take into account the difference between, for instance, motivation to join a gang and the “business decision” by that gang to undertake trafficking. Further study on these motivations may shed light on individual complicity, and underscore the complexity of trafficking networks and subsequent law enforcement responses, particularly for criminal groups that include minors.
Of particular note in the above definition is the inclusion of “material benefit”; citing the UNODC Legislative Guide for the Implementation of the UNCTOC:
The term “material benefit” is not limited to financial or monetary benefits. It can include, in particular, sexual gratification […] this is to ensure that organizations involved in trafficking in human beings or child pornography for sexual rather than monetary reasons are nonetheless covered by this definition…
This directly relates to cases of sexual exploitation, such as that experienced by girls in the UK, referenced in our previous posts. These types of cases present challenges to assumptions about motivations for trafficking not primarily centered on the financial profitability of “selling” sex (or, possibly, other forms of exploitation).
In any case, the AIC notes the virtual absence of research on motivations to commit trafficking, but point to the 2009 UK Home Office study of offenders convicted of smuggling and trafficking, in which the “perception of risk and reward is based on a belief that the risks of detection are low and, even if detected, sentences will be less harsh than for other offenses such as drug smuggling. Many of the prisoners interviewed expressed genuine surprise that they had received severe sentences”.
A UNGIFT background paper argues:
In most legal systems placing a trafficker within a framework of an organized crime group will serve to emphasise the gravity of the crime and influence the legal reaction therefore. Defining a trafficking gang as an organized crime group suggests that the goal of law enforcement agencies it is not solely to disable individuals, but rather to disable the mechanism they are part of, thus generating a more rigorous response from law enforcement and the judiciary. Experience shows that when it is individuals who are targeted and not the mechanism they are part of itself – it is not uncommon for the trafficking to continue whilst the criminal is serving his sentence, with his indirect involvement or without it.
While the point above is taken about the nature of networks and individuals complicit in organized crime for the purpose of prosecution as well as the necessity of a robust law enforcement response; one must exercise several notes of caution.
First, victim-centered protection schemes for trafficking cases are not as strong as those for other types of organized crime. If, as stated above, the crime can continue in the absence of an individual criminal, then the threat to a victim does as well, given the vested interest in the group against prosecution. As a result, witness protection schemes need to consider individual risk and appropriately manage victims during the investigation and prosecution processes. For instance, an individual who testifies against a gang-affiliated trafficker would require different protections than a foreign domestic worker exploited by her employer. Assurances of protection to a victim are needed to promote a robust anti-trafficking strategy. In addition, trust-building leads to law enforcement legitimacy and, hopefully, more prosecutions against traffickers and the crime of trafficking specifically.
Second, the focused link on trafficking and organized crime, depending the local legislative framework, may discount a variety of actors complicit in trafficking that fall outside or do not constitute a “group”. It may even be possible for an individual to be trafficked by actors who do not know each other. As explained in a Foreign Domestic Worker study conducted by HOME in Singapore:
Unlike other manifestations of human trafficking which are commonly perpetrated by organised transnational crime syndicates, trafficking into domestic servitude is (as is confirmed by the results of this study) carried out by seemingly innocent members of society carrying out their day-to-day activities as an employment agent, or exercising their right to employ somebody to assist with household tasks as an employer. Such “perpetrators” of trafficking will often not realise that they are complicit in the trafficking process.
Not only does this have implications for criminal prosecution of trafficking, but for addressing related employment issues. For instance, recruitment agents routinely engaging in contract substitution are likely unaware of the implications for human trafficking, but represent a systemic problem by the State in either the law or enforcement.
Third, related to the above point, the focus on the link by policymakers between trafficking and organized crime ignores systemic problems undercutting workers’ rights. The focus on the business of organized criminal groups may deflect from State obligations to ensure conditions under which exploitation and abuse thrive are abated – such as the enforcement of, say, a livable wage. Moreover, the focus on criminal syndicates also creates a dissociative effect between trafficking and labor exploitation/ abuse by employers and the impact of corporations. The Congressional Research Service notes: “According to the United Nations, human trafficking can be closely integrated into legal businesses, including the tourism industry, agriculture, hotel and airline operations, and leisure and entertainment businesses” [emphasis added]. What the report misses is that human trafficking is directly integrated into legal businesses and industries; failing to recognize this link fails to recognize the importance in upholding the rights of individuals and preventing trafficking.