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ABSTRACT
This article focuses on an issue that hitherto has received relatively little academic attention: state-sponsored or state-facilitated human trafficking. Some cases of this practice, such as governments forcing their citizens to pick cotton, are clear cut; some are more contested. This article uses the case study of Belarus to consider whether weaponizing migrants for political gains can amount to the crime of human trafficking. The issue came to the forefront in late 2021, when, with the helping hand of President Lukashenko, thousands of people from the Middle East gathered at Belarus’ border with Poland hoping to enter the EU and, presumably, to claim asylum. The migrants became trapped at the EU external border in forests with no food, water, or shelter. In doing so, the article also considers the meaning of exploitation in the context of human trafficking, as well as the scope of human trafficking under Article 4 of the European Convention on Human Rights. Findings of this article have an impact on policy making in particular foreign policy. By shedding further light on what state facilitated human trafficking looks like, the authors provide clarity on the law and, hopefully, provide a forewarning to other states on what they should not be doing.
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Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
1 Note, the acronym THB is widely used in Europe, including by the European Union. In the USA the acronym TIP is used to refer to Trafficking in Persons.
2 As does Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. Recital 1 refers to THB as a “gross violation of human rights.” It is not uncommon for academic commentators to take this view too (See: Renzikowski, Citation2018, p. 18).
3 As noted by the European Court of Human Rights in SM v Croatia, Application no. 60561/14, 25 June 2020, para 304: “ … the Court notes that the cases relating to human trafficking under Article 4 typically involve an issue of the States’ positive obligations under the Convention. Indeed, the applicants in these cases are normally victims of trafficking or trafficking-related conduct by another private party, whose actions cannot attract the direct responsibility of the State”.
4 In Rantsev, Article 4 was explicitly stated to include THB (Rantsev v Cyprus and Russia).
5 CN v United Kingdom, Application no. 4239/08, 13 November 2012Chowdhury v Greece, Application no. 21884/15, 30 March 2017; SM v Croatia, Application no. 60561/14, 25 June 2020; VCL and AN v United Kingdom, Application nos. 77587/12 and 74,603/`12, 16 February 2021; Zoletic and Others v Azerbaijan, Application no. 20116/12.
6 GRETA is the body mandated to monitor States’ implementation of their obligations under the CoE Convention.
7 The deportation to slave labor by Nazi Germany and the Soviet Union would certainly have met the definition, as would the treatment by China of its Uighur population, if reports about their deportation to forced labor camps are true.
8 On state-sponsored human trafficking by North Korea, Human Rights Watch has written: “North Korea’s export labor is managed by the government, but business operations vary. In some cases, a government or state-owned or state-controlled enterprise will pay the North Korean government directly for the use of North Korea labor. In other cases local business owners pay money to the North Korean government. Sometimes wages are given to North Korean government offices which then supposedly pay workers. Sometimes a third-party company or North Korean company receives wages and hands over most of the compensation to the North Korean government,” (HRW, April 2015).
9 In particular to China, the Middle East, Russia, Mongolia, Malaysia, Burma and Cambodia (HRW, April 2015).
10 In 2014, an exploited and under-equipped North Korean welder died of severe burns while working in a Polish shipyard (The Korea Herald, Citation2017); his work and that of many North Koreans, is a way for Pyongyang to fund military expenditure and other State priorities in the face of a punitive international sanctions regime (Hinshaw & Ojewska, Citation2018).
11 Cuba was included for its programme of sending medical staff abroad and appropriating most of their salaries (Department of State of the United States of America, 2020, p.174). China was alleged to have used forced labor, including the much-discussed case of Muslim Uighurs detained in camps in China’s Xinjiang province (Department of State of the United States of America 2020, p.153).
12 COM proposal to amend Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).
13 Applebaum (Citation2021, no page n.) states bluntly: “ … [Lukashenko] launched a program of state-sponsored human trafficking designed not only to deceive people in Iraq, Syria, Lebanon, and elsewhere about the ease with which they can get into the European Union via his capital, Minsk, but also to take their money along the way.” The question is whether this accusation is borne out by analysis of the law.
14 On transfer, we can deduce that the term refers to the handing over of an individual from one person/group to another. There is also an element of transfer of control over the victim, which may be key in situations where family members transfer a child from one family unit to another, e.g. for the purpose of domestic servitude. The same is recognized in the EU anti-trafficking Directive by the inclusion of the phrase “the exchange or transfer of control over those persons”
15 Attempts to address the lack of an agreed definition have generally entailed the elaboration of yet more recognized examples of exploitation (see: Sax, Citation2020 paras 4.44–4.49)
16 This follows philosophical discussions on exploitation, for example Wood frames exploitation through the concept of vulnerability, arguing that: “proper respect for others is violated when we treat their vulnerabilities as opportunities to advance our own interest or projects” (Wood, Citation1995, pp. 150–151)