Trade in Human Beings Prevention – Quo vadis?

This opinion-article honours the donor community’s strong commitment to preventing and combating Trade in Human Beings (THB) and commends all their activities on the ground, including new and innovative ones like Mobile Identification Teams. THB as a criminal offence is committed in various countries and modes during a migration journey, a crime with a low reporting and insufficient conviction rate.

The article advocates to go new ways for recognizing the international, trans-border character of victimization processes, for increasing the reporting rate on one side and intensifying pro-active criminal investigations on the other side, as necessary for all criminal offences with high dark figures.

Dark figure of crime
All institutions and practitioners presume a high number of undiscovered or even undiscoverable THB.

It was Belgian mathematician and sociologist Adolphe Quetelet, who first coined the term “dark figure of crime” back in 1832. He argued: “Our observations can only refer to a certain number of known and tried offenders out of the unknown sum total of crimes committed. Since this sum total of crimes committed will probably ever continue unknown, all the reasoning of which it is the basis will be more or less defective.”

The ‘dark figures’ of crime cover all law violations, including THB, smuggling of persons and goods, tax evasion, prostitution, illegal drug use, illegal gambling, child abuse, domestic violence and traffic violations.

Criminal offences are brought to attention of the authorities usually through:

• Criminal complaints of victims (e.g. defrauded investors, victims of burglaries)
• Pro-active search by investigators (e.g. drug investigators, audits of OLAF)
• Police and Customs controls (e.g. document fraud)
• Competitors of offenders (e.g. in monopole law, cartel law)
• Notifications by governmental authorities (e.g. medical institutions, social services)
• Reports by competent non-governmental organisations (e.g. organisations active in victim protection and aid)
• Whistleblowers (e.g. in organized crime, in corruption cases)
• Inconsistent information provided by offenders themselves (e.g. tax declarations)
• Technical detection installations (e.g. traffic control cameras; perimeter protection video cameras)
• Witnesses, neighbours, activists (e.g. ecologists)
• Press and Media (e.g. investigative journalism)

When we look at THB, none of these statistically frequent ways of crime detection is predominant. This phenomenon has to do with the specific characteristics of the statutory offence, with modi operandi, but also with interests and decisions of THB victims.

Some THB victims may not be aware of being or having been victimized, some may not trust foreign states’ authorities and not be ready to notify law enforcement authorities and testify, many victims may worry about an interruption of their migration journey, some victims may fear further victimization by the same offenders, some victims may forgive or protect the offender (e.g family member, same tribe, regarding a trafficker who they may need later again), some victims may be involved in offences, e.g. use of false or falsified or forged documents or false declarations of family relations and finances, some may be involved in smuggling of persons or goods.

It is my hypothesis that many victims may weigh the reporting of victimization against other genuine interests, like the swift and smooth continuation of their migration journey to safe havens.

A scientific, empiric case study from Italy found that “some victims become exploiters themselves in order to use their earnings to pay the debt more quickly: the madams give them the possibility of recruiting a girl (generally a sister or a friend) to be exploited in prostitution so that they can obtain the money in a shorter time. This is an important feature of the modalities used to carry out the exploitation because in this way the victims are directly involved in the criminal activities and less disposed to denounce the crime to law enforcement authorities.”

THB offenders and smugglers are highly specialised and professionalised, they are often part of organized crime groups or networks. Their modi operandi are often realized clandestine during the migration journey.

If justice and law enforcement authorities want to prevent and combat THB, they must apply sound criminalistic models of clearing the dark figure of crime. THB is a triangle with 3 sides.

For all three sides of the triangle is research available at criminological Faculties, other research institutions, empiric Police research centres and NGOs.
For Germany, I would like to name the Max-Planck-Institute for the study of Criminality, Security, Law (Freiburg) with its Balkan Criminology Partner Group, the Centre for Criminology (KrimZ), Wiesbaden, the German Federal Investigation Bureau Bundeskriminalamt (BKA), Wiesbaden, the Criminological Research Institute Lower Saxony (KFN), Hannover, and the Research Departments of the 16 Federal States’ Central Investigation Bureaus Landeskriminalämter (LKA). Comparable, prestigious research structures exist in other EU member states.

The German Federal Ministry of Interior published on 8 November 2022 an interesting study on the dark figure of crime The representative population survey “Security and Crime in Germany” (SKiD) of BKA and infas is a nationwide dark field study based on a survey with persons aged 16 and older. Among other things, the survey asked about the feeling of safety, victim experiences and the evaluation of police work. In addition to crimes known to Police (“bright field”), the survey also recorded crimes not known to Police (“dark field”).

The SKiD survey was based on a nationwide sample taken from the registers of residents’ registration offices. The questionnaire could be completed in 4 languages either on paper or online (CAWI). Almost 47,000 people took part nationwide. The most surprising result was that 14 % of the whole population over 16 % had become victims of cybercrime in the last 12 months, the highest single victimization type among all types of crimes.

Back to THB: Whoever wants to prevent or combat THB, has a rich choice between EU member states’ criminological and criminalistic research to find empirical, best practices.

New and innovative paths for increasing the reporting rate
Which considerations prevent victims from reporting – and the authorities from clearing – THB?

THB happens during a migration journey through several countries with different languages, religious orientations, cultures and legal systems, different law enforcement authorities and jurisdictions. At the moment, each temporary host country of victims is competent for THB, only during the short stay of the victimized migrants on their territory. Even willing investigators lose contact after victims have left the host country. How can this gap be closed?

Recognizing and responding to the trans-border character of THB
We still treat THB as phenomenon on just one territory, the one which temporarily hosts victimized migrants. We must however understand the entire migration journey as a continuum.

What are the victims’ interests? The victims’ interests are to move from country to country to the eventual final destination, and to decide according to their own interests if, where and when and to who they are ready to report THB.

This means in practice: The legal possibility for migrants must be created to report and register all kind of THB offences they have suffered during their entire migration journey any time AFTER they have reached a safe haven (e.g. Austrian, German, Swedish, Swiss Reception Centre). This requires a robust legal framework and a coordinated international approach. It could start with a study.

Compensating victims of THB despite of the trans-border character of THB
The same applies with regard to victim-compensation which is still based on national legislations. No country offers compensation for victimisation in another country. THB would however require that. It could start with a study.

Offering fair compensation for THB victimisation by the international community could be another way to increase the reporting rate.

Decriminalising minor offences committed by victims of THB
We should distinguish between major and minor offences committed by THB victims. It can be discussed to – case by case – refrain from punishing victims of THB who have committed minor offences like smuggling of not-dangerous goods. If THB victims must fear prosecution, they would probably nor report their own victimisation.
We must stop the idealization of migrants. As in life, migrants can be offenders, not all migrants are “only” innocent victims. Some migrants steal from migrants, some migrants defraud or rape migrants, some migrants abuse other migrants.

Pro-active investigations – principle of legality versus principle of opportunity
Some types of criminal offences seem “victimless”. This phenomenon is well researched for insurances, public institutions, tax authorities buildings. People rarely identify with anonymous institutions, banks (“I don’t own a bank”).

Other example: Some believe that a prostitute cannot be raped and enjoys less right to physical integrity. Similar misunderstanding happens with migrants’ victimisations. Some people believe irregular migrants deserve less protection because they are “irregular”, because it is their own “voluntary” decision to migrate. If THB victims don’t report cases of THB, they become part of this misconception. Legally, it does not play a role if a victim of THB reports or doesn’t report: THB must be investigated anyway.

Europe as a whole follows the “Principle of Legality”: All serious offences must be investigated. Example: The European Public Prosecutor’s Office (EPPO) as an independent public prosecution office of the European Union stated in Art. 66 of its Framework Preamble:

“In order to ensure legal certainty and to effectively combat offences affecting the Union’s financial interests, the investigation and prosecution activities of the EPPO should be guided by the legality principle…”

Europe does not follow the Anglo-Saxon principle of “opportunity”, making investigations depend on political interests or financial resources. All European states along a migration route are bound to investigate and prosecute cases of THB.

If victims do not report, the state must pro-actively penetrate the criminal biotopes and investigate and bring offenders to justice. A legal framework is needed that all Public Prosecution Services and Police along the migration route investigate THB that has happened on their territories, even if the migrant has not reported – the principle “volenti not fit inuria” is not applicable. And it must be investigated even if the victim has already left the territory.

Cyber THB – online exploitation
This is the fastest growing industry. New, innovative investigations are needed to identify offenders who search online for vulnerable possible THB victims.
This needs high technical preparedness, pro-activeness and various identities of investigators, since offenders increased their efforts to recruit victims and victims who recruit other victims.

Broad research is available on online radicalization which can be learned from. Example: The Regional Cooperation Council (RCC) published a study “How to prevent online radicalisation in the cyber security realm of the Western Balkans?”
There is even some overlapping regarding victims’ profiles: under-informed, trusting false promises, unrealistic hopes, readiness to depend on a criminal offender.

Free-of-charge legal aid
Examples from many countries and projects of cooperation show that legal aid is often a pre-requisite for making use of rights and stopping submission. Pilot projects could test the ground.

Whistleblowers
Whistleblowers are a recognized way to gain insider information on illegal activities. But many irregular migrants and victims of THB do not even know this possibility. This is why Free-of-charge legal aid (see above)
Whistleblowers have sometimes high ethical motives, sometimes not. In organized crime, some offenders want to get a legally privileged status as whistleblowers.
Irregular migrants frequently travel in ethnic groups. This handicaps and hampers successful whistleblowing. Omertà (code of silence) reigns in many migration groups like in Mafia. Others are ready to speak, if they will be protected (see below Witness protection). Operational pilot projects could tell more.

Witness protection
THB offenders are sometimes armed. If not, their criminal friends are. Witnesses and whistleblowers must adequately be protected. This is also not known and applied to victims, witnesses and whistleblowers of THB.

Undercover agents
If a government undercover agent is not allowed to abet an innocent person to do something illegal. Undercover agents must be managed with highest attention to professional and ethical standards, in order to produce objective evidence to Courts.
Since undercover agents are not part of criminal organisations, they must use informants from the criminal environment who “know” about illegal activities. Informants want to be paid (or get legal advantages) for sharing their “knowing”.
Regarding drug dealing, there are informal scales (“tariffs”) applied within EU Police Forces on how much law authorities are ready to pay for an information leading to a discovery of a drug deal. I remember a case in Germany that an informant took Police to Court, if the agreed-on amount would not be paid. In this specific case, Police paid.

The same system works regarding tax evasion or tax fraud. The German Ministry of Finance of the largest Federal State North Rhine-Westphalia bought from whistleblowers of Swiss and Liechtenstein banks and lawyers’ Offices compact discs (CDs) with information on untaxed money and undeclared wealth. Upon Parliamentarian inquiry, the Ministry defended its practice as “last opportunity” and insisted to continue with it, case by case.

The disadvantage of cooperating with informants is the degree of their own involvement. Outsiders don’t know much, insiders know, but are partly involved. Informants usually never report their own involvement, but usually enemies’ or competitors’ illegal activities. This implies the risk of “selective” investigations and prosecutions, that are more or less directed by informants.
As far as I know, undercover agents and payments to informants are not yet used in suspected THB cases. Already existing mobile identification teams led by Police could be trained on “under-cover techniques”. But above all, agreements are needed that undercover agents can follow suspected THB offenders cross-borders.

Investigative journalism
In 2015, leading German newspaper “Süddeutsche Zeitung” (SZ) was contacted by an anonymous source calling itself “John Doe,” who offered to leak financial documents . Doe did not demand any financial compensation in return. The Panama Papers are 11.5 million leaked documents (or 2.6 terabytes of data) that were published beginning on April 3, 2016. The papers detail financial and attorney–client information for more than 214,488 offshore entities. The documents, some dating back to the 1970s, were created by, and taken from former Panamanian offshore law firm Mossack Fonseca, and compiled with similar leaks into a searchable database. It spans from the 1970s to the spring of 2016.

One of the immediate consequences of the revelations was the April 4, 2016 resignation of Iceland’s Prime Minister Sigmundur David Gunnlaugsson. On May 9, all of the 214,488 offshore entities named in the Panama Papers became searchable via a database on the website of the International Consortium of Investigative Journalists (ICIJ).

We are still waiting for THB cases.

Extending the statute of limitation for THB reporting could be another option.
THB as offence lapses and prosecution and sentencing become time-barred. It could be discussed to abandon this the privilege for offenders. Resolutions of relevant organisations could ask for it.

Offender research
The same challenges with “dark fields” come with other offences too, particularly with sexual offences: Relatively low, relatively “stable” reporting rates – as presently observed – pretend a picture of a “situation under control”, while the opposite is true. Anonymous victim and anonymous offender surveys suggest that only a small fraction of a multitude of sexual offences is reported and investigated.

In one research study the reporting rate of victims correlated to the closeness between offender and victim. The closer the relation between offender and victim was, the less was reported. The same can be assumed as hypothesis for THB. This is a core problem discovering THB.

Another interesting study is the Offending, Crime and Justice Survey 2021-2022 (OCJS), the first national longitudinal, self-report offending survey for England and Wales. The series began in 2003 and continues up to today. The OCJS is commissioned by the UK Home Office, with the overall objective of providing a solid base for measuring prevalence of offending and drug use in the general population of England and Wales. The survey was developed in response to a significant gap in data on offending in the general population, as opposed to particular groups such as convicted offenders. A specific aim of the series is to monitor trends in offending, mainly among young people.

Both, the British survey 2021-2022 and the recent German study SkiD (mentioned above) evidence that the population commits many more offences than registered and that the population also is to a much higher degree victimized than expected.

The criminalistic response is working either with whistleblowers (involved or informed insiders) or with undercover agents (official investigators) or with investigative journalists. All three options need totally different approaches and are not free from risks.

by Christoph von Harsdorf, Dipl.-Jur. Univ., Assessor Iuris, Sworn Court Expert