June 8, 2022No Comments

Analysis of the nexus between Human Trafficking and Terrorism.

Author: Arianna Caggiano.

This is a critical commentary of the research paper launched by the OSCE Organization: Trafficking in Human Beings and Terrorism. Where and How They Intersect: Analysis and Recommendations for More Effective Policy Response.

Human Trafficking as a tactic of terrorist groups

Over the years, human trafficking has increasingly become a modus operandi used by terrorist groups to finance and carry out their activities. To this extent, as human trafficking constitutes a crime that is usually perpetrated by organized criminal groups, some scholars have stressed that the “crime-terror nexus” implies that both criminal and terrorist organizations might cooperate with each other in the furtherance of their respective goals. Despite the increasing use of organised crime-related tactics deployed by terrorists, in analysing the current legal framework in international law when it comes to trafficking in human beings and terrorism there is still no existing treaty or convention dealing with the nexus between the two phenomena. On the basis of the OSCE paper launched in 2021 on the nexus between human trafficking and terrorism, this article will try to critically evaluate from a juridical and legal point of view the analysis and findings developed by the OSCE on this matter.

Comparing Legal and Policy Frameworks of Anti-Trafficking and anti-terrorism Mechanisms

When it comes to the definition of the human trafficking’s legal framework, it is worth emphasizing that it was not until 2000 that a first definition of trafficking in human beings was given in the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, better known as the Palermo Protocol. The adoption of the Protocol can be considered as a watershed moment for the legal framework of human trafficking: as of today, it counts 173 signatory States and it can be defined, thus, as almost a universal ratification. A further key role in combating human trafficking is played by regional trafficking treaties, which complement the obligations upon signatory States, especially with reference to victims’ protection. Indeed, as stressed by the OSCE research, a major principle guiding anti-trafficking legislations and policies is the principle of non-punishment of victims of trafficking, according to which Member States are obliged to «assess the individual situation of persons released from the captivity of armed and terrorist groups so as to enable prompt identification of victims of trafficking».

On the other hand, the international legal framework related to terrorism and counterterrorism is considerably more challenging and complex in comparison to the anti-trafficking international legal system. Indeed, despite the existence of a set of treaties, protocols, conventions, Security Council Resolutions, as well as “soft law” and non-binding mechanisms, there is no comprehensive instrument providing a universal and accepted definition of terrorism, as it is the case for human trafficking with the Palermo Protocol

In analysing the nexus between these two phenomena, it is of utmost importance to emphasize the constituent elements of trafficking used as a tactic by terrorist groups. Pursuant art. 3 of the Palermo Protocol, «Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force […] to achieve the consent of a person having control over another person, for the purpose of exploitation. […]». This very intense definition provided by the Protocol, shows three main constituent elements of human trafficking: action, means and purpose.

Therefore, as the OSCE outlines, in evaluating the link between trafficking in human beings and terrorism from a legal perspective, a useful approach would be one that analyses these three constituent elements when exploited by terrorist groups as a tactic to recruit individuals. In this regard, the analysis of the current legal framework on the nexus between the two crimes shows that a harmonisation in the criminalization of terrorism and human trafficking as two offences connected has not been reached yet. Indeed, despite the existence of several instruments that recognize the growing links between terrorism and transnational organized crime, the lack of a definition of terrorism still hinders the internationally community to adopt an internationally agreed-upon approach to terrorism matters, while it is not the case for human trafficking. 

The legal response that has been adopted so far to address cases where the two phenomena intersects has largely focused on criminalizing all individuals related to terrorist activities and groups. The lack of a definition of terrorism has led States to adopt different measures aimed at only criminalizing terrorists and not identifying and protecting victims. Therefore, as highlighted in the research, this approach has showed to have significant consequences for victims, who have risked being held fully accountable for all the crimes they have committed, even though they are victims of human traffickers. Based on these findings, the OSCE research concludes that a human trafficking lens when dealing with terrorist criminal offences should be applied to contribute to victim identification, assistance, rehabilitation and reintegration, and prevention of re-victimization. Therefore, it would be of utmost importance to apply the principle of non-punishment - that already exists in the human trafficking framework – in the anti-terrorism existing legal and policy mechanism. 

Conclusion

This critical commentary has analysed from a legal perspective the comprehensive research carried out by the OSCE organization on the nexus between human trafficking and terrorism. It has highlighted how the application of anti-trafficking mechanisms, including the principle of non-punishment, in the context of terrorism could help leading in a better way prosecution of criminal offences related to terrorism. The OSCE research might constitute the basis for an international and agreed-upon definition that considers both a security-oriented approach to prevent and prosecute terrorist offences and a human rights-based one, ensuring that victims of terrorism – and trafficked persons exploited by terrorists – are not held accountable and can access to their rights. 

All in all, the OSCE research offers significant food for thought and, using concrete cases, helps filling the knowledge gap of policy makers, academics, practitioners, and legislators on the nexus between human trafficking and terrorism. 

November 5, 2021No Comments

The Right to a Healthy Environment: A Change of Logic?

By: Luca Mattei

Image Source: https://unsplash.com/photos/KVWBuZ8DyC0

In recent decades scientists have proved that humankind is entering the Anthropocene: a new geological era where the effects of human activities and pollution will push the environment towards a collapse of its ecological equilibrium. The growing concerns about this shift, have been recently reflected in the Resolution 48/13 of the UN Human Rights Council (HRC), which acknowledges a close link between ‘environmental degradation and climate change’ to human subsistence. 

To sum up, this UN HRC Resolution recognizes ‘the right to a healthy environment’ as a full-fledged human right. This development has been welcomed by human rights experts. Notably, the UN High Commissioner for Human Rights Michelle Bachelet expressed satisfaction, mentioning that: 

‘Bold action is now required to ensure this resolution on the right to a healthy environment serves as a springboard to push for transformative economic, social and environmental policies that will protect people and nature’. 

Indeed, this is a historical development, but also a topic for scholarly debates. In fact, the catastrophic consequences of the deterioration of the global ecosystem are leading experts to question the ‘state of the art’ of the international legal structure. More precisely, does international law play a role on the ongoing environmental crisis? In this paper, I will argue that the ‘right to a healthy environment’ does not break with the traditional thought and structure of international law; rather it provides an additional perspective to it.  

The birth of the ‘homo economicus’

International law does not engage thoroughly on the protection of the environment. It is significant how even in landmarking environmental treaties – such as the Rio Declaration and the UN Declaration on the Rights of Indigenous Peoples – the main focus is on economic expansion and land exploitation rather than protection of nature. For scholar Anne Grear, this approach is coherent with the Western cultural myth of ‘rational human subject’ and the construct deriving from such ideology. 

According to this reconstruction, since the famous pronouncement of René Descartes, cogito ergo sum, the idea that above all there is human rationality has been thriving throughout Europe. However, Grear claims that this narrative is exclusionary at its roots, as only a precise kind of rationality is endorsed: behind the illusion of objective rationality lies a design that promotes certain hierarchies. This includes a specific kind of relationship between humankind and nature.

Indeed, analysing national contexts, most countries in the world address the conservation of the environment in their legal systems; however, the same becomes more uncertain in the international setting. For instance, this is visible within the 8 Millennium Sustainable Goals  (MDGs): out of the eight points enshrined in this agenda, only the seventh is about ‘environmental sustainability’ and among the four targets within the latter ‘only two were genuinely about environmental conditions’.

The idea that humankind can bend ‘nature’ as it pleases has been further promoted through the rise of international corporations, which can escape both territorial and legal boundaries. In the past, these associations of interest were subservient to the goals of the Western elite, aiming to exploit developing countries, their ‘nature’ and resources. However, as suggested by Grear, corporations have now become so prominent that they have managed to emancipate themselves and become a sort of ‘homo economicus’ based on legal fiction. This is the pinnacle of what is meant to be 'rational' according to the Western legacy, but, paradoxically, this is detrimental even to their former creators. Like a golem without its master: international corporations can now continue their mission of exploiting the Earth and its resources with hardly any restraints. 

The environment as a ‘grundnorm’

Today, this tradition in international law is being challenged. New international treaties and standards are leading countries in adopting sustainable approaches in their development policies. for a contribution to this shift comes from human rights law: in the landmarking Urgenda Case, the Dutch Supreme Court stated that ‘the government had to cut its greenhouse gas emissions by at least 25% by the end of 2020, respectful of commitments made in the Paris Agreements’. 

Interestingly, the court stated that this decision was made in compliance with the European Convention on Human Rights (ECHR). Similarly, the Inter-American Court of Human Rights has recognized the importance of environmental protection, as nature is inevitably intertwined with relevant ‘human rights’, such as the ‘right to food’. 

This seems consistent with scholars Kim and Bosselman’s position, which suggests that ecological integrity should be understood as a conditio sine qua non – or grundnorm – of international law, as the equilibrium of the ecosystem is necessary for the subsistence of humankind. Hence, the call for a sort of ‘international constitutionalism’ which should be capable to work within the decentralized system of the international community:

‘Where there is a regulatory gap, this grundnorm fills the void. Where there is already a treaty obligation, it reinforces and clarifies treaty obligations in light of the planetary boundaries framework.’

Whereas the proposal of Kim and Bosselman is undoubtedly bold, it is undeniable that big progress has been made in this sense. The Urgenda Case itself is proof that, perhaps, a decentralized environment protection system is not impossible. Nonetheless, ‘the right to a healthy environment’ is not such a radical innovation.

Concluding remark

The challenge of ‘climate change’ is arguably one of the main reasons why ‘green movements’ have gained momentum in the last decades. Because of this threat, the wild exploitation of the Earth – based on traditional ‘human subject rationality’ – is starting to increasingly sound irrational. Still, the response of the international community continues to be mainly human-centric and tied to human rights law. 

Therefore, what we are witnessing with the UN Resolution 48/13 is a ‘greening’ of pre-existing human rights. The traditional foundation of international law is unchallenged. However, while humanity remains the main yardstick to assess the protection of nature, this new approach, could represent a gradual path towards a more comprehensive protection of the environment and human survival in the context of ‘climate change’.