What is Human Trafficking?
Article 4 of the European Council’s Convention against Human Trafficking of 2005 defines human trafficking as:
The recruitment, transport, transfer, accommodation or hosting of people
by threatening to or using violence or other forms of coercion, through abduction, fraud, deception, abuse of power or exploitation of vulnerability or by receiving special payments or other benefits
to obtain the consent of someone who has control over another person for the purpose of exploitation.
The exploitation can encompass different types such as: the prostitution of others or other forms of sexual exploitation, forced labour or forced servitude, slavery or practices similar to slavery or the removal of organs. Consequently, we speak of human trafficking for the purpose of sexual exploitation, human trafficking for the purpose of labour exploitation, etc.
The European Council uses a definition of human trafficking that focuses on the conditions of exploitation and the associated auxiliary activities, such as the transport or accommodation of those affected.
The German Criminal Code (StGB) defines human trafficking in a similar way in § 232: Anyone who recruits, transports, hands over, accommodates or takes in another person (under the age of twenty-one) by taking advantage of their personal or economic predicament or their helplessness associated with staying in a foreign country.
That is to say that here too, the conditions that enable exploitation are foregrounded.
The German Criminal Code recognizes human trafficking for the purposes of
sexual exploitation
labour exploitation
exploitation of persons who beg
exploitation in the commission of crimes and
organ removal.
The prison sentence can be increased to up to ten years if violence, threats or deceit are used, or if the person concerned is kidnapped or seized, as well as if the perpetrator acts commercially or as a member of a gang. Due to the particular vulnerability of minors, there is no need to specifically prove that they have been exploited in a situation of predicament or helplessness. In general, even the attempt to traffic human beings is punishable.
Even though the law explicitly mentions the exploitation of the helplessness associated with staying in another country, human trafficking can also take place within Germany if the essential aspects of coercion and deception are present.
SOLWODI clients report that their passports and other documents as well as all their money had been taken away from them, they had been blackmailed and physically threatened. In many cases, those affected are being isolated and can hardly establish social contacts outside of their milieu, which further increases their vulnerability.
The instigation and exploitation itself are regulated in the following paragraphs of the Criminal Code:
§ 232 a Forced prostitution,
§ 232 b Forced labour,
§ 233 Exploitation of labour and
§ 233 a Exploitation by taking advantage of deprivation of liberty.
§ 236 of the German Criminal Code defines the criminal offence of child trafficking and § 237 defines forced marriage. As part of the EU Directive on Combating Human Trafficking (2011/36/EU), there is currently discussion about including illegal adoption and forced marriage in the criminal offences under § 232.
The Federal Criminal Police Office's national report already includes cases of forced marriage. However, the requirements for a conviction according to § 232 are stricter than under § 237, thus there is a risk that forced marriage will not be punished if the requirements of § 232 are not met.
In principle, the boundaries between human trafficking and the underlying criminal offense of exploitation are often not clear. Like the KOK, SOLWODI speaks of human trafficking in a broader sense, which includes both the creation of the conditions for exploitation in accordance with § 232 and the exploitative situation itself.
Smuggling, on the other hand, is generally not considered a form of human trafficking. In smuggling, the essential element is the illegal crossing of the border, from which the profit is derived, whereas in human trafficking the exploitation of the person is the main focus. Crossing a border in connection with human trafficking is only a means to an end. However, people can certainly end up in exploitative situations when being smuggled, especially if they cannot pay debts to the smugglers.
